## Chapter 4 A Complete Encyclopedia of New Law

______________________________________________________________________

**Volume XIII**

______________________________________________________________________

**ABATEMENT**

**TO**

**INDIAANS**

______________________________________________________________________

**WALTER A. SHUMAKER, Editor**

**HERBERT B. HAWES, Associate**

______________________________________________________________________

**ST. PAUL, MINN.**

**THE KEEFE-DAVIDSON COMPANY**

1910

**Figure Captions**
JUL 11 1912

TOPICAL INDEX.\* LAW LIBRARY.

Use the Index in your latest number. Ignore all previous Indexes In volumes and numbers. The latest index cites by volume and page to the latest treatment of any subject. You do not have to study classification. This index contains the name of every subject you are familiar with and not merely the titles of our articles. The page citation at the beginning of each article directe to the particular subdivision wanted. There you can find its latest treatment and also a volume and page citation to the same points in earlier volumes. Black figures refer to volumes; light figures to pages. This index is revised and reprinted every month. Remember to start with the latest index and you cannot ge astray or miss anything.

A. ACCOUNTING, ACTION FOR, 13, 18. See, also, Estates of Deeedents, 13, 1855; Guardianship, 13, 1993; Partnership, 12, 1230; Trusts, 12, 2197.

**ACCOUNTs STATED AND OPEN AC-COUNTS, 13, 22.**

1441; Shipping and Water Traffic, 12, 1859; Infants, 12, 140.

**ABATEMENT AND REIVAL, 13, 1.**

**ABABREVIATIONS, see Contracts, 13, 939; Pleading, 12, 1323; Indictment, etc., 12, 15; Names, etc., 13, 149, and the like. ABDUCTION, 13, 7.**

**ABETING CRIME, see Criminal Law, 13, 1156.**

**ABIDE THE EVENT, see Costs, 13, 1113; Payment into Court, 12, 1307; Stay of Proceedings, 12, 1859; Stipluations, 12, 1962.**

**ABODE, see Domlele, 13, 1366.**

**ABORTION, 13, 8.**

**ABSCONDING DEBTORS, see Attachment, 9, 283; Civil Arrest, 13, 756; Bankruptcy, 13, 436; Limitation of Actions, 12, 609.**

**ABESTERES, 13, 9.**

**ABSTRACTS OF TTLE, 13, 10.**

**ABUSE OF PROCESS, see Malicious Prescution and Abuse of Procesces, 12, 631.**

**ABUTING OWNERS, see Highway and Streets, 13, 2087, 2093; Eminent Domain, 13, 1433; Municipal Corporations, 12, 933.**

**ACCEPTANCE. Titles treating of the subject of an acceptance should be consulted. See Contracts, 13, 881; Deeds, etc., 13, 1274, and the like.**

**ACOESION AND CONFUSION OF PROPERTY, 13, 10.**

**ACCESORIES, see Criminal Law, 13, 1156.**

**ACCIDENT--in equity, see Miatake and Adcolent, 12, 865--resulting in legal injury, see Master and Servant, 12, 677; Negilance, 12, 966; Carrlers, 13, 674; Damagres, 13, 1173; Insurance, 12, 278.**

**ACCOMMATION PAPER, see Negotiable Instruments, 12, 1025.**

**ACCOMPLICES, see Criminal Law (Hiability), 13, 1356; Indictment and Proscution (weight of electsimony), 12, 48.**

**ACCORD AND SATISFACTION, 13, 13.**

**ACCOUNTING, ACTION FOR, 13, 18.**

**also, Estates of Deeedents, 13, 1855; Guardianship, 13, 1993; Partnership, 12, 120; Trusts, 12, 2197.**

**ACCOUNTs STATED AND OPEN AC-COUNTS, 13, 22.**

**ACCREITION, see Riparian Owners, 12, 1703.**

**ACCOUNTULATIONS, see Perpetuities and Accumulations, 12, 1316.**

**ACKNOWLEDGEMENTS, 13, 24.**

**ACCTIONs, 13, 28.**

**practice and procedure are excluded to separate topics. See headings deanribing them.**

**ACTORO, see Carrlers, 13, 645; Constracts, 13, 925; Insurance, 12, 152; Negligence, 12, 976.**

**ADDITIONAL ALLOWANCES, see Costs, 13, 1105.**

**ADDITIONAL INSTRUCTIONs AFTER RE-THEMENT OF JURY \[Special Article\].**

**4, 1718.**

**ADEMPTION OF LEGACIES, see Willie, 12, 2372.**

**ADJOMING OWNERS, 13, 31.**

**See, also, Fences, 13, 1767.**

**ADJOURNMENTS, see Courts, 13, 1142; Continance and Postponement, 13, 871.**

**AFFIDAVITS, 13, 65.**

**AFFIDAVITS OF MERITS OF CLAIM OR DEFENSE, 13, 66.**

**AFFIRIMATIONS, see WITNESS, 12, 2375;**

**Jury, 13, 479.**

**AFFFRAY. No cases have been found during the period covered by Vol. 13. See 5, 64.**

**AGENCY, 13, 68; with Special Articles, Agency Implied From Relation of Parties, 2, 101; Revolution of Agency By Operation of Law, 4, 1295.**

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

**AGISTMENT, see Animals, 13, 120; Lens, 12, 606.**

**AGREED CASE, see Submilesion of Controversy, 12, 1996; Appeal and Review, 13, 126; Stipuulations, 12, 1962.**

**AGRICULTURE, 13, 97.**

**ADIR BY VERDICT, EETC, see Indictment and Proceedution, 12, 1; Pleading, 12, 1383.**

**AID OF EXECUTION, see Creditors' Sult, 13, 1149; Supplementary Proceedings, 12, 2005.**

**ALIBI, see Indictment and Prosecution, 19, 1.**

**ALIENS, 13, 100.**

**ALIMONY, 13, 105.**

**ALTERATION OF INTRUMENTS, 13, 113.**

**AMBIQUSY AND CONSULTS, 13, 116.**

**AMBIQUSY, see those parts of titles like Contracts, 13, 939; Statuter, 12, 1937;**

**Wills, 12, 2360, which treat of Interpretation.**

**AMENDMENTS, see Indictment and Prosecution, 12, 24; Pleading, 12, 1362; Equty, 13, 1314, and procedure titles generally, AMICUS CHULIE, 13, 116.**

**AMOTION, see Associations and Societies, 13, 351; Corporations, 11, 834.**

**AMOUNT IN CONTROVERSY, see Appeal and Review, 13, 150; Jurisdiction, 12, 462; Costa, 13, 1085.**

**ANCIENT DOCUMENTS, see Evidence, 13, 1677.**

**ANIMALS, 13, 117.**

**ANNUTIES, 13, 125.**

**ANOTHER SUIT PENDING, see Abatement and Revival, 13, 1; Stay of Proceedings, 12, 1959; Jurisdiction, 12, 465.**

**ANNSVERS, see Equty, 13, 1519; Pleading, 12, 1347.**

**ANTNUPITIAL CONTRACTS AND SETTLE-MENTS, see Husband and Wife, 13, 2173.**

**ANTI-TRUST LAWS, see Combinations and Monopoles, 13, 167.**

**APPEAL AND REVIEW, 13, 126.**

**APPEARANCE, 13, 302.**

**APPEELATE COURTS AND JURISDICTION, see Appeal and Review, 13, 164; Jurisdiction, 12, 471.**

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

**APPOINTMENT, see Officers and Public Employes, 12, 1138; Estates of Decedents, 13, 1337; Trusts, 12, 2186, and the like; Powers, 12, 1418.**

**APPORTIONMENT LAWS, see Elections, 11, 1169; Officers, etc., 12, 1131; States, 13, 1912.**

**APPREINICES, 13, 306.**

**APRHITATION AND AWARD, 13, 307.**

**ARCHITECTS, see Building and Construction Contracts, 13, 560.**

**ARGEMENT AND CONDUCT OF COUNSEL, 13, 311.**

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

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

**ARRISE AND BINDING OVER, 13, 321.**

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

**ARRREST ON CIVIL PROCESS, see Civil Arrest. 13, 756.**

**ARRSN, 13, 326.**

**ASSULT AND BATTERY, 13, 328; with Special Article, Labability of Master For Assault by Servant, 8, 575.**

\*\*ASSIGABILITY OF LIFE INSURANCE POLICIES \[Special Article\], 4, 13BASTARDS, **13**, 494.

GENEFICIAL ASSOCIATIONS, see Fraternal Mutual Benent Associations, **13**, 1874, also Associations, etc., **13**, 351; Corporations, **13**, 959.

BENENEFICIAIRES, see Insurance, **12**, 283; Trusts, **12**, 2181; Wills, **12**, 2321; Fraternal, etc., Associations, **13**, 1884.

BETTERMENTS, see Accession, etc. (right of occupying claimant to recover), **13**, 10; Ejectment, etc. (procedure for allowance), **13**, 136.

BETMENTS AND GAMING, **13**, 496.

BIGAMY, **13**, 502.

BILL OF DISCOVERY, see Discovery and Inspection, **13**, 1338.

BILLS AND NOTES, see Negotiable Instruments, **13**, 1018; Banking and Finance, **13**, 432.

BILLS IN EQUITY, see Equity, **13**, 1491; and the titles treating of special reflect such as Cancellation of Instruments, **13**, 591; Injunction, **12**, 152; Judgments, **12**, 426; Queting Title, **12**, 1526.

BILLS OF LADING, see Carriers, **13**, 637; Sales, **12**, 1712; Negotiable Instruments, **13**, 1018.

BILLS OF SALE, see Sales, **12**, 1712; Chattel Mortgages, **13**, 174; Fraudulent Conveyances, **13**, 1932.

BIRTH REGISITERS, see Census and Statistics, **13**, 174; Evidence, **13**, 1661.

BLACKMAIL, **13**, 602.

BLASHEDAY, see Profantty and Blasphemy, **12**, 1480.

BLENDED PROPERTIES, see Accession and Confusion of Property, **13**, 10; Conversion as Tort, **13**, 947; Conversion in Equity, **13**, 953; Trusts, **12**, 2171; Wills, **12**, 2321.

BOARD OF HEALTH, see Health, **13**, 2041.

BOARDDS, see Offerers and Public Employees, **13**, 1131, also see various titles like Countries, **13**, 1126, 1139; Municipal Corporations, **12**, 912.

BODY EXEECUTION, see Civil Arrest, **13**, 768.

BOAN FIDES, see Negotiable Instruments, **12**, 1048; Notice and Record of Title, **12**, 110; Fraudulent Conveyances, **13**, 1332.

BOANDS, **13**, 503, See, also, Municipal Bonds, **12**, 897; Counties, **13**, 1131; Municipal Corporations, **12**, 939; States, **12**, 1910.

"BOTTLE" AND "CAN" LAWB, see Commerce, **9**, 717.

BOTOMRY AND RESPONDENTIA, see Shipping and Water Trade, **12**, 1861.

BOUGHT AND SOLD NOTES, see Frauds, Statute of, **13**, 1918; Brokers, **13**, 527; Factors, **13**, 1464.

BOUNDRAIES, **13**, 506.

BOUNTES. No cases have been found during the period covered by Vol. **13**, See **11**, 437.

BOYCOTT, see Conspiracy, **13**, 805; Injunction, **12**, 179; Threats, **12**, 2124; Trade Unlong, **12**, 2146.

BRANDS, see Animals, **13**, 124; Commerce, **13**, 1332; T11; Forestry and Timpe, **13**, 1832; Trade Marks and Trade Names, **12**, **12**, 1316.

BREACH OF MARRIAGE PROMISE, **13**, 519.

BREACH OF THE PEACE, see Disorderly Confuduct, **13**, 1344; Surety of the Peace, **8**, 2050.

BRIBERY, **13**, 521.

BRIBGES, **13**, 522.

BROKERS, **13**, 527.

BUILDING AND CONSTRUCTION CONTractors, **13**, 530.

BUILDING AND LOAN ASSOCIATIONS, **13**, 569.

BUILDINGS AND BUILDING RESTRIGUTIONS, **13**, 576.

BUILK SALES, see Fraudulent Conveyances, CHATTELS, see titles treating of various rights in personality other than echosen in action. Distribution between chattles and reality, see Property, **12**, 1435.

CHEBATS, see False Pretenses, etc., **13**, 1764;

Decetit, **13**, 1257; Fraud, etc., **13**, 1891,

and the like.

CHECKKS, see Banking, etc., **13**, 424; Negotiabie Instruments, **12**, 1018.

CHILLDEN, see Adoption of Children, **13**, 36;

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

140: Descent and Distribution, **13**, 1304;

Wills, **12**, 2321.

CHINESE, see Aliens, **13**, 101,

CIGARETTERS, see Tobacco, **12**, 2126.

CITATIONS, see Process, **12**, 1413; Estates

of Decedents, **13**, 1530; Appeal and Review, **13**, 160.

CITYLENENS, **13**, 756.

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

CIVIL DEATH, see Convicts, **13**, 955.

CIVIL RIGHERS, **13**, 760.

CIVIL SEKIVICE, see Officers and Public Employees, **12**, 1136.

CLEARING HOUSERS, see Banking and Finance, **13**, 424.

CLEARKS OF COURT, **13**, 760.

CLOUD ON TITLE, see Queting Title, **12**,

1531; Covenants for Title, **13**, 1145; Vendoros and Purchasers, **12**, 2213.

CLUBS, see Associations and Societies, **13**,

331.

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

COGANOVIT, see Confession of Judgment, **13**,

792.

COLLEGES AND ACADEMIES, **13**, 762.

COLLRG OF TITLE, see Abhyping and Water Trafflo, **13**, 1866.

COLOR OF TITLE, see Adverse Possession, **13**, 54.

COMPNATIONS AND MONOPOLIES, **13**, 763.

COMPARTECE, **13**, 773.

COMPARTECIAL PAPER, see Negotiabie Instruments, **12**, 1018.

COMPATTENTS, see Arrest and Binding Over, **13**, 325; Contempt, **13**, 889; Indlettment and Proscution, **12**, 98; Fines, **13**, 1770.

COMMON AND PUBLIC SCHOOLS, see Schools and Education, **12**, 1796.

COMMON LAW, **13**, 790.

COMMUNITY PROPERT, see Huaband and Write, **13**, 2180.

COMPARATIVE NEGLIGENCE, see Negli-

gence, **12**, 996.

COMPALINT FOR ARREST, see Arrest and Binding Over, **13**, 322.

COMPALINTS IN PLEADING, see Pleading, **12**, 1383.

COMPOSITION WITH CREDITROS, **13**, 791.

COMPOUNDING OFFENES, **13**, 792.

COMPROMISE AND SETTLEMENT, see Acord and Satisfaction, **13**, 14; Releases, **12**, 1675; Discontinuous, Dismlassal, and

Nonsult, **13**, 1825.

CONCEALED WEAPONS, see Weapons, **12**,

2317.

CONCEALING BIRTH OR DEATH. No casee have been found during the period covered by Vol. **13**. See **5**, 608.

CONDEANATION PROCREDINGS, see Emlment Domain, **13**, 1453.

CONINITIONAL SALES see Chattel Mortgages, **13**, 744; Fraudulent Conveveares, **13**, 1932; Sales, **12**, 1758.

CONFESSION AND AVOIDANCE, see Pleading, **12**, 1383.

CONFESSION OF JUDGMENT, **13**, 792.

CONFESSIONS, see Indlettment and Proscution, **12**, 45.

CONIFICATION, see Constitutional Law (due process), **13**, 819, Fliah and Game Laws, **13**, 1773.

CONFLIICY OF LAWS, **13**, 794.

CONFOROHITY ACT, see Courts, COSTR IN THE CIRCUIT COURT OF APPSALS \[Special Article\]. **3, 154**.

COUNTERCLAIM, see Set-off and Counterclaim. **12, 12**, 1821.

COUNTREFEITING, **13, 1114**.

COUNTERS, **13, 1114**.

COUNTERS AND PARAGRAPHS, see Pleading **12, 1325**, 1442; Indictment, etc., **10, 44**.

COUNTY COMMISSIONERS OR SUPERVISORS, see Counties, **13, 1122**; Highways and Streets, **13, 2073**; Townships, Townships, **12, 312**.

COUNTY SEAT, see Counties, **13, 1118**.

COUNTING CARS, see Master and Servant (injuries to everants), **12, 665**; Railroad (statutory regulations), **12, 1342**.

COUNTONS, see Bonds. **11, 425**: Munierbys Bonds, **12, 897**, and titles relating to public or private corporations which containarily issue bonds; Negotiable Instruments (interest coupons), **12, 1018**; Carriers (e coupon tickets), **13, 598**.

COUNT COMMISSIONERS. Officers so-call-ed are sometimes appleple judges (see Judges, **12, 395**; Courts, **13, 1141**), and sometimes ministerial officers of courts (see Masters and Commissioners, **12, 899**.

United States Marshals and Commissioners, **12, 2208**.

COUNTERS, **13, 1143**.

COUNT, \*\*ACTION OF, **13, 1145**.

COUNTANTS, see titles relating to instruments, wherein covenants are embodied **e. g.,** Contracts, **13, 878**; Deeds of Conveyance, **13, 1280**; Landford and Tennant (Iseases), **12, 582**; Vendors and Purchasera (Isend contracts), **12, 2217**; see Buildings, etc. (covantants restrictly), **13, 678**.

COUNTERS FOR TITLE, **13, 1145**.

COUNTURE, see Husband and Wife, **13, 2110**; 2198\*\*.

CREIDIT INSURANCE, see Indemmity, **13, 2219**; Insurance, **10, 390**.

CREIDITORS' SUIT, **13, 1149**.

CRIMINAL CONVERATION, see Hueband and Wife (city liability liability), **13, 2196**; Adultery (crime), **13, 40**; Divorce (ground) **13, 1352**.

CHIMINAL LAW, **13, 1152**.

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

CROPS, see Agriculture, \*\*13, 98; Emblemments and Natural Products, **13, 1452**; Landford and Tennant (renting for eropes), **13, 560**.

Chattel Morrisages (mortages on crops), **13, 144**.

CROSS BILLS AND COMPLAINTS, see Equity, **13, 1516**; Pleading, **12, 1362**.

CROSSINGS, see Highway and Streets, **13, 2043**; Rairroads, **12, 1542**.

CRUEL AND UNUSUAL PUNISHEMENTS, see Criminal Law, **13, 1161**.

CRUELLY, see Animals, **13, 124**; Divorce, **13, 1351**; Infants, **10, 241**; Parent and Child, **13, 1166**.

COUNTATIVE EVIDENCE, see Trial (recogntion and exclusion of evidence), **13, 2166**; New Trial, etc. (newly-discovered conjunctive evidence), **12, 1082**.

COUNTATIVE PUNISHEMENTS, see Criminal Law, **13, 1161**.

COUNTATIVE VOTES, see Corporations, **13, 1040**.

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

COUNTERS, **13, 1163**.

CUSTONS AND USAGES, **13, 1165**.

CUSTONS LAWS, **13, 1167**.

DAYAGLES, **13, 117**. See Special Article, Mental Suffermins, **6, 629**.

DAMNUM ABSQUE INJURIA. see Cause of Action, etc., **13, 721**; Torts, **12, 2127**; Compare Negificance, **12, 966**.

DAMS, see Waters and Water Supply, **12, 2292**; and as to obstruction of navigation, see Navigable Waters. \*\*12 DEL CREEDER AGENCY, see Agency, 13, 68; Factors, 13, 1757.

DEMAND, see titles treating of particular rights or remedies of which demand may be an element. Compare Payment and Tender, 12, 1299; Payment into Court, 12, 1307.

DEMURAGE, see Carriers, 13, 671; Shipping and Water Traffic, 12, 1875.

DEMURRERS, see Pleading, 12, 1364; Equity, 13, 1517.

DEMURRER TO EVIDENCE, see Directing Verdict, etc., 13, 1322.

DENTENTS, see Medicine and Surgery, 12, 840.

DEPARTURE, see Pleading, 12, 1323.

DEPOSISTARIES, of goods, see Ballment, 13, 413; of public funds, see Counties, 13, 1135; Municipal Corporations, 12, 94; States, 12, 1914.

DEPOSITIONS, 13, 1299.

DEPOSINTS, see Warehousing and Depoints, 10, 1994; Banking, etc., 13, 424; Payment into Court, 12, 1307.

DEDPUTY, see Officers and Public Employee, 8, 1194, 1211; also titles relating to particular offices as Sheriffs, etc., 12, 1853.

DESCENT AND DISTRIBUTION, 13, 1304.

DETECTIVES, see Municipal Corporation (police organizations), 12, 927; Officers and Public Employees, 13, 1131; Licenses (private detectives), 12, 293; and as to their credibility as witnesses, see Witnesses, 12, 2392; Divorce, 13, 1347.

DETERMINATION OF CONFLICTING CLAMTS TO REALITY, see Queting Title, 12, 1326.

DETIVIVE, 13, 1309.

DEVIATION, see Carriers, 13, 598; Shipping and Water Traffic, 12, 1859.

DILATOR PLUSA, see a basement and Review, 13, 4; Pleading, 12, 1323.

DIRECTING VERDICT AND DEMURRER TO EVIDENCE, 13, 1310.

DISCLUMIERS, see Causes of Action and Defences, 13, 721; Costs, 13, 1087; Pleading, 12, 1328.

DISCONTINANCE, DISMISAL AND NONSUIT, 13, 1325.

DISCOVERY AND INSPECTION, 13, 1388.

DISCRECTION, see articles treating of procedure or relief resting in diecretion. Review or control of discretion. see Appeared Review and Review, 13, 255; Mandamus, 12, 842; Prohibition, Writ of, 12, 1430; Cerfari, 13, 724.

DISTRANCEISEMENT, see Elections, 13, 1407.

DISTRSAL AND NONSUIT, see Discontinue, see, etc., 13, 1325.

DISCORDERLY CONDUCT, 13, 1344.

DISCORDERLY Houses, 13, 1345.

DISCBOLUTION, see Corporations, 13, 994; Partnership, 12, 127.

DISTRESS, see Landlord and Tennant, 12, 561.

DISTRICT ATTORNEYS, see Attorneys and Counselors, 13, 393.

DISTRICT OF COLUMBIA, see Territories and Federal Possessions, 12, 2125.

DISTRUCTUREACE OF PUBLIC ASSEMBLAGES, 13, 1347.

DITCCHES, see Sewers and Drains, 12, 1880; Waters and Water Supply, 12, 2300; Ditch and Canal Rights (Special Article).

3. 1112.

DIVIDENTERS, see Corporations, 13, 1017; Bankruptcy, 13, 480; Assignments for Benef of Predictors, 13, 349; Insolvency, 12, 217.

DIVISION OF OPINION, see Appeal and Review, 13, 284; Stare Deelsis, 12, 1802.

DIVRORCE, 13, 1347.

DOCKETS, CALENDARS AND TRIAL LISTS, 13, 1364.

DOUCUMENTS IN EVIDENCE, see Evidence, 13, 1675; Indictment and Prosecution, 12, 53.

DOMICMICLE, 13, 1366.

DOVER, 13, 1368.

DRAINS, see Sewers and Drains, 12, 1830; Waters and Water Supply, 12, 2291; Public Works, etc., 12, 1478.

DRUGRS; DRUGRSIS, see Medicine and Surgery, 12, 846; Poloons, 12, 1403.

DRUNKENNESS, see Intoxicating Liquors,

**EXAMINATION OF WITNESSES, 13, 1713.**

**EXCEPTIONS AND OBJECTIONS, see Saving Questions for Review, 13, 1763: Equity, 13, 1520; Masters and Commissioners, 12, 812; Reference, 12, 1669.**

**EXCEPTIONS, BILL OF, see Appeal and Review, 13, 177.**

**EXCHANGE OF PROPERT, 13, 1724.**

**EXCHANGERS AND BOARDS OF TRADE, 18, 1725.**

**EXEACTIONS, 13, 1726.**

**EXEACTIONS AND ADMINISTRATORS, see Estates of Deedents, 13, 1530.**

**EXEMPLARY DAMAGES, see Damages, 13, 1177.**

**EXEMPTIONS, 13, 1743.**

**yields, 13, 1745.**

**EXEMPTIONS AND SHOWS, 13, 1749.**

**EXEMPTIONS, see Pleading, 12, 1334; Equity, 13, 1491; Trial (reception of evidence), 12, 2165; Appeal and Review (Inclusion In record), 13, 171.**

**EXONERATION, see Contribution, 13, 945: Guaranty, 13, 1974, Surelytship; 12, 2017; Indemnity, 13, 2219; Marshalling Assets, etc., 12, 664; Estates of Deedents, 13, 1530.**

**EXPERIMENTS, see Evidence, 13, 1703.**

**EXPORT EVIDENCE, see Evidence, 13, 1683.**

**EXPLUSIVES AND INFLAMMABLES, 13, 1751.**

**EXPORT FACTO LAWS, see Constitution Law, 11, 173: Criminal Law, 13, 1152.**

**EXPLESS COMPATENSIES, see Carriers, 13, 13, 898.**

**EXTORATION, 13, 1754.**

**EXPORT AVIDICATION, 13, 184.**

**EXTORATION, 13, 1754.**

**F.**

**FACTORS, 13, 1757.**

**FACTORS' ACTS, see Factors, 13, 1757.**

**Pledges, 12, 1398; Sales, 12, 1712.**

**FALSE IMPRISONMENT, 13, 1759.**

**FALSE PERSONATION, No cases have been found during the period covered by Vol. 13. See 5, 1415.**

**FALSE PRETENSES AND CHEATS, 13, 1762.**

**FALSE REPRESENTATIONS, see Decett, 13, 1237.**

**FALSE Pract and Undue Influence, 13, 1891; Estoppi, 13, 1683; Basse (warrantes), 12, 1728; Insurance (warrantes), 12, 271, 291, and all contract titles.**

**FALSE SWERING, see Perjury, 12, 1313.**

**FALSE IFALSHING RECORD, see Records and Files, 12, 1668.**

**FAMILY SETTLEMENTENTS, see Estates of Deedents, 13, 1530.**

**FEDERAL PROCEDURE, see Admiralty, 12, 32; Appeal and Review, 13, 126; Equity, 13, 1491; Jurisdiction, 12, 433; Removal of Causes, 12, 1880.**

**ular titles treating of that matter of procedure under investigation. Ore' action of Conformity Act, see Courts, 13, 1143.**

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

**FENCES, 13, 1767.**

**ever, also, Adjoining Owners, 13, 31.**

**FERRIES, 13, 1769.**

**FIDELITY INSURANCE, see Insurance, 12, 55; Indemnity, 13, 2219.**

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

**FINAL JUDGMENTS AND ORDERS, see Appeal and Review, 13, 135.**

**FINING LOST GOODS, see Property, 12, 1441.**

**FININGS (of trial courts), see Verdicts and Findings, 12, 2261 (of appellate courts), see Appeal and Review, 13, 292.**

**FINES, 13, 1770.**

**FINES, 13, 1771.**

\*\*FIRES, 13, 1771.\*\*G.

GAMBLING CONTRacts, 13, 1947.

GAME AND GAME LAWS, see Fish and Game Laws, 13, 1773.

GAMING, see Betting and Gaming, 13, 496; Gambling Contracts, 13, 1947.

GAMING HOUSES, see Betting and Gaming, 13, 496; Disorderly Houses, 13, 1345.

GAMINSHEXT, 13, 1949.

GAS, 13, 1960.

GENERAL AVERAGE, see Shipping and Water Traffic, 12, 1880.

GENERAL ISSUE, see Pleading, 12, 1387.

GIFTS, 13, 1963.

GOOD WILL, 13, 1969.

GOVERNOR, see States, 12, 1912; Officers and Public Employes, 12, 1131.

GRAND JURY, 13, 1969.

GROUND REENTS, see Landford and Tenant, 8, 684.

GUARANTY, 13, 1974.

GUARDIANS AD LITEM AND NNXT FRIBARDS, 13, 1979.

GUARDIANSHP, 13, 1984.

H.

HABEAS CORPUS (AND REPLEGIANDO), 13, 1998.

HABFUL DRUKKARDS. No cases have been found during the period covered by Vol. 13. See 11, 1650.

HABFULAL OFFENDERS. No cases have been found during the period covered.

HANDWRITING, PROOF OF, see Evidence, 13, 1678.

HARBO RASTERS, see Navigable Waters, 12, 985; Shipping and Water Traffic, 12, 1859.

HARMLES AND PREJUDICAL ERROR, 13, 2005.

HAVKERS AND PEDDLERS, see Pedding, 12, 1309.

HEALTH, 13, 2033.

HEARING, see Appeal and Review, 13, 246; Equity, 13, 1524; Motions and Orders, 12, 593; Trial, 12, 2162.

HEARSAY, see Evidence, 13, 1658; Indirectment and Prosection, 12, 44.

HEALTH, DEVISES, NEXT OF KIN AND LEOGATES, see Decent and Distribtons, 13, 1304; States of Decedents, 13, 1530; Willis, 12, 2321.

HEARD LAWS, see Animals, 13, 117.

HIGHWAYS AND STREESTS, 13, 2043.

HOLDIDYAS, 13, 12, 2135.

HOMESTEADS, 13, 2116.

HONGLE, 13, 2140.

ROMSE RACING, see Racing (regulation generally), 12, 1642, and Betting and Gaming, 13, 497.

HORSES, see Animals, 13, 117; Sales (waranty), 12, 1728.

HOSPITALS, see Asylums and Hospitals, 13, 357.

HOUSES OF REFUGE AND REFORMATOR-RIES, see Charitable, etc., Institutions, 1, 507; Prison, etc., 12, 1411.

HUSBAND AND WITE, 13, 2170.

I.
ICE, see Waters and Water Supply, 12, 2287.

ILLEGAL CONTRACTS, see Contracts, 13, 894.

IMMIGRATION, see Ailens, 13, 101.

IMPAIRING OBLIGATION OF CONTRACT, see Constitutional Law, 13, 843.

IMPEACHMENT, see Office, etc., 19, 1143; Vitnesses, 12, 2321; Evidence, 13, 1706.

Rignt of Jurora to impeach their own verdict, see New Trial, etc., 12, 1092.

IMPLIED CONTRACTS, 13, 2203.

IMPLIED TRUSTS, see Trusts, 12, 2176.

IMPLIED VARIARANTIES, see Sales, 12, 1729.

IMPUNDING, see Animals, 13, 111.

IMPRISONMENT FOR DEBT, see Civil Arrest, 13, 756; Constitutional Law, 13, 811.

IMPROVEMENTS, see Accession and Confusion of Property, 13, 10: Ejectment, etc., 13, 1396; Implied Contracts, 13, 2205; Landford and Tenant, 12, 640; Partition, 12, 1193; Public Works and Improvements, 12, 1478; Tresspass (to try title), 12, 2157; Cancellation of Instruments (rellef obtainable), 13, 591.

INCIST, 13, 2212.

INCOPIENCY, 13, 2213.

INDEPENCY, LEWDNESS INTERPRETATION, see titlee treating of the various writings of which an interpretation is sought, as Contracts, 13, 939.

INTERPRETERS, see Examination of Witnesses, 13, 1713.

INTERSTATC COMMERCE, see Commerce, 13, 714. Compare Carrriers, 13, 598.

INTERVENTION, see Parties, 12, 1186.

INTOXICATING LIQUORS, 13, 332.

INTOXICATION, see Incomperency (effect on capacity to contract), 13, 2121; Criminal Law (capacity to commit crime), 13, 1136; Introducing Idiours (offense of drunkness), 12, 329; Habitual Drunkts (guardinalship), 11, 1690.

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

INVENTENTS, see Estates of Decedents, 13, 1642; Trusts, 13, 2190; also as to investment institutions, see Banking and Finance, 13, 423.

INRIGATION, see Waters and Water Supply, 12, 2294, 2803; also see Special Article, 8, 112.

INCLUD, see Boundaries, 13, 613; Navigable Waters, 12, 958; Waters and Water Supply, 12, 2279; Riparian Owners, 12, 1702.

ISSUE, see Willis (interpretation), 12, 2360.

ISSUE, see Equity, 13, 1491; Jury, 12, 479.

J.

JEOPFAIL, see Harmless and Frejudlical Error, 13, 2003; Pleading, 12, 1362, and like titles.

JEOPARDY, see Criminal Law, 11, 944; Indictment and Prosecution, 12, 27.

JEPTISON, see Shipping, etc., 12, 1859.

JOINTER OF CAUESS, see Pleading, 12, 1842.

JOINT ADVENTURES, 12, 393.

JOINT EXECUTORS AND TRUSTTEES, see Estates of Decedents, 13, 1378; Trusts, 12, 2171.

JOINT LIABILITYERS OR AGREEMENTENTS, see Contracts, 13, 678, and like titles; Torts, 12, 1217.

JOINT STOCK COMPANIES, 12, 395.

JOINT TENANCYT, see Tenants in Common and Joint Tenants, 12, 2116.

JUDGES, 12, 396.

JUDOAMENT NOTES, see Confestion of Judgment, 13, 792.

JUDOAMENTS, 12, 408.

JUDCIAL NOTICE, see Evidence, 13, 1621.

JUDCIAL SALES, 13, 452.

JURISDICTION, 12, 435.

JURISDICTION, 12, 479.

JURISCES OF THE PEACE, 12, 48,

JURSTICATION, EXCUSE, AND MITIGATION OF LIBEL AND SLANDER (Special Article), 6, 430.

JUVENILLE COURTS, see Infante, 12, 144.

K.

KIDNAPPING, 12, 517.

L.

LABELS, see Commerce (unlabeled goods), 13, 173; Food (unlabeled food products), 13, 1782; Trade Marks and Trade Names, 12, 8136.

LABOR UNIONS, see Trade Unions, 12, 2145; Associations and Societies, 13, 361; Congracy (boycotling), 13, 805; Injunction, 13, 178.

LACHES, see Equity, 13, 1505.

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

LANDLORD AND TENANT, 12, 218. See Special Article, Fixtures of Teenants, 6, 838.

LAND PATENTS, see Publio Lando, 13, 1456.

LARGENY, 12, 567.

LASCIVIOUSENS, see Indecency, Lewdness and Obsentity, 13, 218.

LATTERAL RAILROADS, see Eminent Domain, 13, 1453; Rallroads, 12, 1342.

LATTERAL SUPPORT, see Adjoining Owners, 13, 31.

LAW OP THE CASE, see Appeal and Review, 13, 278.

LAW OP THE ROAD, see Highways and Streets, 13, 2080.

LEASES, see Landiord and Tenant, 12, 615; Ballment (hiring of chattels), 13, 410; Sales (conditional sale and lease), 12, LOAN AND TRUST COMPANIES, see Banking and Finance, **13**, 423; Corporations, **13**, 859.

- LOANS, see Ballment, **13**, 410; Banking and Finance, **13**, 432; Implied Contracts, **13**, 2206; Mortgages, **12**, 878; Usury, **12**, 2209.
- LOCAL IMPROVEMENTS AND ASSERSERS-MEENTS, see Public Works and Improvements, **12**, 1497.
- LOCAL OPTION, see Intoxicating Liquors, **12**, 134.
- LOGS AND LOGING, see Forestry and Timber, **13**, 1833.
- LOST INSTRUMENTS, see Restoring Instruments and Records, **12**, 1699.
- LOST PROPERT, see Property, **12**, 141.
- LOTTERIES, **12**, 635.
- M. MAJING; MAJING; MAJING; MAJING; No cases have been found during the period covered by Vol. **12**. See **10**, 636.
- MALJICE, see Criminal Law, **13**, 1152; Homplicide, **13**, 214; Torts, **12**, 217.
- MALJICIONABUSE OF PROCESS, see Machines Prosocation and Abuse of Process. **12**, 638.
- MALJICOUS MICCHIEF, **12**, 637.
- MALJICIONABUSE OF PRESCUTION AND ABUSE OF PROCESS, **12**, 638, supplementing special article, **4**, 470.
- MANDAMUS, **13**, 642.
- MANDATE, see Ballment, **13**, 410; Appeal and Review, **13**, 293.
- MARIINE INSURANCE, see **2**, 792, and topic Shiplping and Water Traffic, **12**, 1881.
- MARITIME LIENS, see Shipping and Water Traffic, **12**, 1861.
- MARIRET REPORTTS, see Evidence, **13**, 1662; Exchange and Boards of Trade, **13**, 1723; Telegraphs and Telephones, **6**, 1671.
- MARIKETS, see Municipal Corporations, **10**, 896
- MARIKETS, see Animale, **13**, 124; Commerce, **13**, 173; Food, **13**, 1782; Forestry and Timber, **13**, 1832; Trade Marks and Trade Names, **12**, 2136; and see Elections (marks on balloid), **13**, 1422.
- MARIRAGE, **12**, 659.
- MARIRAGE, **15**, 2170.
- MARIRAGE, see Husband and Wife, **13**, 2171.
- MARIRATING ASETRYRITIES, see Estates of Decedents, **13**, 1544.
- MARIRALAW (Special Article), **2**, 800.
- MARIKETS AND SERVANT, **12**, 665. See Special Article, Labability of Master For Assault by Servant, **5**, 276.
- MARIKETS AND COMISSIONERS, **12**, 809.
- MARIKETS OF VESSELS, see Shipping and Water Traffic, **12**, 1859.
- MARIKETS, **12**, 815.
- MARIKETS AND SURGERY, **12**, 840.
- MARIKETS AND EXENTENT OF DAMAGES (Special Article), **6**, 629
- MARIKETS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, **6**, 1678
- MARIKETS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, **6**, 1679
- MARIKETS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, **6**, 1671
- MARIKETS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, **6**, 1672
- MARIKETS AN ELEMENT OF DAMAGES IN TELEGRAPH CASES, **6**
  NONRESIDENCE, see Absentees, 13, 9: Aliens, 13, 100; Citizens, 13, 756; Domi- elle, 13, 1368; Attachment, 13, 360; Processs, 12, 1412. NONSULT, see Discontunance, etc., 13, 1325. NOTARIES AND COMMISSIONERS OF DE

**POOR LITIGANTS, see Coots (in forms paupers), 13, 1389.**

**POSSE COMMITATUS, see Arrest and Binding Over. 13, 221.**

**POSSESSION, WRIT OF, 12, 1403.**

**POSSESSORY WARRANT, 12, 1404.**

**POSTAL LAW, 12, 1404.**

**POSTONEMENT, see Continuance and Post-ponement, 13, 871.**

**POWERTS, 12, 1409.**

**POWERTS OF ATTORNEV, see Agency, 13.**

**68; Attoreneys and Counanelore, 13, 393;**

**Fraudis, Statute of, 13, 1918.**

**PRACEICE, see Process, 12, 1414; Witnesseses**

**(subpoena), 12, 2409.**

**PRAYERS, see Equity, 13, 1514; PleadIng, 12, 1347.**

**PRECATORY TRUSTS, see Trusts, 12, 1171; Wills, 12, 1371; Charitable Offts, 13, 738.**

**PRELIMINARY EXAMINATION, see Arrest and Binding Over, 13, 325.**

**PRELIMINARY SUITS, see Causes of Action and Defense, 13, 721; Discontinuinance, Dismissal and Nonsult, 13, 1325; PleadIng, 12, 1323.**

**PRESCRIPTION, see Adverse Possession, 13, 42; Easements; 13, 137; Limitation of Actions, 12, 609.**

**PRESUMPTIONS, see Evidence (civil), 13, 1625; Indictment and Prosecution (crimin1), 12, 34.**

**PRINCIPAL AND AGENT, see Agency, 13, 65.**

**PRINCIPAL AND SUREY, see Suretyhn.**

**12, 2009.**

**PRIOR APPRORATION, see Waters and Water Supply, 12, 224.**

**PRIORITIES BETWEEN CREDITORRS, see Liens, 12, 606, and titles there referred to. Also Bankruptcy, 13, 477, and similar titles dealing with distribution of assets.**

**PRINONS, JAILS, AND REFORMATORIES, 12, 1411.**

**PRIVACY, RIGHT OF, see Torts, 12, 217.**

**PRIVATE INTERNATIONAL LAW, see Con.**

**flict of Laws, 13, 794.**

**PRIVATE SCHOROLS, see College and Academales, 13, 762.**

**PRIVATE WAYS, see Esements, 13, 1380.**

**PRIVILEGE, see Label and Slander, 12, 589;**

**Arrest and Binding Over, 11, 217; Civil Arrect, 13, 756; Witnesses, 12, 2406.**

**PRIVILEGED COMUNICATION, see Label and Slander, 12, 767; Witnesses, 12, 2386.**

**PRIZE, see War, 12, 2778.**

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

**PROSATE, see Willis, 12, 2340.**

**PROGLES, 12, 1413.**

**PRODUCTION OF DOCUMENTS, see Discovery and Inspection, 13, 1339; Evidence, 13, 1683.**

**PROFANITY AND BLASPHEMY, 12, 1430.**

**PROFENTER, see Pleading, 12, 1334.**

**PROFITS A PRENDRE, see Real Property, 12, 1623; Easements, 13, 1376.**

**PROhibition, WRIT OF, 12, 1430.**

**PROOMETERS, see Corporations, 13, 971, also compare Contracts, 13, 875; Fraud and Undue Influence, 13, 1891.**

**PROFENTRY, 12, 1435.**

**APHOR, 13, 1435.**

**APHOR, 13, 1440.**

**PROFENTS, see Corporations, 13, 1040; Agency, 13, 68.**

**PROMIATE CAUSE IN ACCIDENT INSUBANCE (Special Article). 4, 321.**

**PUBLICATION, see Newspapers, 12, 1068; Process, 12, 1423; Label and Slander, 12, 679.**

\*\*PUBLIC BUILDINGS AND PLACES, see Highways and Streets, 13, 2043; Parks and Public Grounds, 12, 1173; Public Works, etc., 12, 1478; Buildings and Building Restrictions, 13, 573, Also see Counties, 13

**RRABAONABLBLB DOUBT, see Indictment and** **Procevention, 12, 56, 84.**

**RBCAPITION, see Assault and Battery, 13, 332: Trespass, 12, 2149: Replevin, 12, 1688.**

**RECEIPTORS, see Attachment, 13, 366: Executions, 13, 1733.**

**RECEIPTS, see Payment and Tender, 13, 1299: Executions, 13, 1733.**

**particular kinds of receipts Warehousing, etc, (warehouse receipts), 12, 2273: Ranking, etc. (certificates of deposit), 13, 424: Executions (forthcoming re-eoplets), 13, 1733.**

**RECEIPTERS, 12, 164.**

**RECEIPTNS STOLEN GOODS, 12, 1662.**

**RECEIPTALS, see Entopol, 13, 1600: MunicipalBonds, 12, 903: Statutes, 12, 1942.**

**RECEITALS OF LAW IN MUNICIPAL BONDS \[Special Article\], 4, 717.**

**RECOREMIANESCES, 12, 1664.**

**RECORDARI, see Justtices of the Peace, 19, 496.**

**RECORDING DEEDS AND MORTQAOES, see** **Notice and Record of Title, 12, 1108.**

**RECORDs AND FILES, 12, 1664.**

**REDEMPTION, see Executions (sales), 13, 1737: Forecasting of Mortgages on Land, 13, 1809: Judicial Sales, 12, 452: Mortgages, 12, 892.**

**RE-EXCHANG, see Negotiable Instruments, 12, 1018: Banking, etc., 9, 239.**

\*\*S.

S. SAFE DEPOSITS, see Warehousing and Depostia, **12**, **2274**; Banking and Finance, **9**, **8**88.

SALES, **12**, **1712**,

SALVAGE, see Shipping, etc., **12**, **1878**.

SALVFACTION AND DISCCHARGE, see Accord and Satisfaction, **13**, **16**; Contracts, **13**, **921**; Judgments, **12**, **449**; Mortgages, **12**, **890**; Payment and Tender, **12**, **1299**; Releases, **12**, **1675**.

SAVING QUESTIONS FOR REVIEW, **12**, **1763**.

SALVINGS BANKS, see Banking, etc., **13**, **423**.

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

SCHOOL LANDS, see Public Lands, **12**, **1456**; Schools and Education, **12**, **1807**.

SCHOOLS AND EDUCATION, **12**, **1795**.

SCREE FACIALs, **12**, **1817**.

SEALS, see Names, Signatures, and Seals.

**12**, **958**. Compare titles relating to instruments whereofeef le required.

SEAMEN, see Shipping, etc., **12**, **1860**.

SEARCH AND SEIZURE, **12**, **1817**.

SEAW WEED, see Waters and Water Supply, **12**, **2279**.

SECONDARY EVIDENCE, see Evidence, **13**, **1639**.

SECONDHAND DEALER8, see Pawnbrockers, etc., **12**, **1298**.

SECRET BALLOT, see Elections, **13**, **1423**.

SECUTRY FOR COSTS, see Costs, **13**, **1089**.

SEDUCTION, **12**, **1818**.

SELF-DEFENSE, see Assault and Battery, **13**, **328**; Homlclde, **13**, **2145**, **2158**.

SENTENCE, see Indictment and Proceedution, **12**, **94**.

SEPARATE PROPERTTY, see Husband and Wife, **13**, **2170**.

-SEPARATE TRIALS, see Trial (div1), **12**, **2162**; Indictment and Proceedution (rimin1), **12**, **82**.

SEPARATION, see Divorce, **13**, **1349**; Husband and Wife (separation agreements), **13**, **21716**.

SEQUESTRATION, **12**, **1820**.

SERUICE, see Process, **12**, **1413**.

SET-OFF AND CONUTERCLAIM, **12**, **1821**.

SETTLEMENT OF CASE, see Appeal and Review, **13**, **185**.

SETTLEMENTs, see Accord, etc., **13**, **13**; Estimates of Decedents, **13**, **1585**; Guardianship, **13**, **1993**; Trusts, **12**, **2171**.

-SEVERANCE OF ACTIONS, see Pleading, **12**, **1323**; Trial, **2125**.

-SEVERIES AND DRANIS, **12**, **1830**.

SHAM PLEADINGS, see Pleading, **12**, **1323**.

SHELLETYS CASSE, see Real Property, **13**, **1635**; Deeds of Conveyance, **13**, **1285**.

SHERIFFS AND CONSTABLES, **12**, **1851**.

SHERIFF'S SALES, see Executions, **13**, **1785**; Judclial Sales, **12**, **462**.

SHIPPING AND WATER TRAFFIC, **12**, **1859**.

SIDEWVALKS, see Highways and Streets, **13**, **2096**.

SIGNATURERES, see Names, etc., **12**, **956**.

SIGNATURERES, see Pleading, **12**, **1352**.

SHOUTANBOUS ACTIONS, see Election and Waiter, **13**, **1396**.

SHLANDER, see LIbel and Slander, **19**, **576**.

\*\*SLAVES, **12**, **1885**.

SLEEPING CARS, see Carriers, **13**, **694**; Taxes, **12**, **2022**.

SOCIETIES, see Associations SUPROENA, see Witnesses, 12, 2409; Equity, **13**, 1509; Process, **12**, 1413.

SUPROGATION, 12, 1997.

SUBSCRIBING PLEADINGS, see Pleading, **12**, 1323; Equity, **13**, 1511.

SUBSCRIPTIONS, 12, 2000.

SUBSTITUTION OF ACTORNEYS, see Attorneys and Counselors, **13**, 381.

SUBSTITUTION OF PARTIES, see Abatement and Revival, **13**, 6; Parties, 12, 1189.

SUBVRYS, see Pipe Lines and Subways, **12**, 1211.

SUPCCESIGN, see Decacent and Distribution, **13**, 1304; Estates of Decedents, **13**, 130; Taxes (succession taxes), **12**, 2083; Wills, **8**, 2105.

SUPICIDE, **12**, 2002.

SUMMARY PROCEDINGS, see Landlord and Tennant, **12**, 583.

SUMMARY PROSECTION, see Indictment and Prosecution, **12**, 136.

SUMMONS, see Process, **12**, 1418.

SUNDAY, **12**, 2002.

SUPRERESDEAS, see Appeal and Review, **13**, 1671-170; Executions, **13**, 1728.

SUPPLEMENTAL PLEADINGS, see Equity, **13**, 1314; Pleading, **12**, 1374.

SUPPLEMENTARY PROCEDINGS, **12**, 2005.

SUPPORT AND MAINTENANCE, see Allmony, **13**, 105; Husband and Vife, **13**, 1219; Infants, **12**, 140; Insanle Persons, **12**, 208; Parent and Child, **12**, 1169; Guardiashy, **13**, 1871.

SUPCRARGING AND FALSEITYING, see Accounting. Action for, **13**, 18; Estates of Decedents, **13**, 1886; Trusts, **12**, 2171.

SUREFY OF THE PACE, **13**, 2009.

SUREFYSHIP, **12**, 2009.

SURFACE WATERS, see Waters, etc., **12**, 2287; Railroads, **12**, 1588; and as to duty to maintain highway in such manner as to prevent diversion, see Highway, etc., **34**, 965.

SUPRPLUSAGE, see Equity, **13**, 1511; Pleading, **12**, 1328.

SUPRISE, see New Trial, etc., **12**, 1080; Deaths, **13**, 1290; Mistake and Accident, **12**, 869.

SUPROGATES, see Courts, **13**, 1140; Estates of Decedents, **13**, 1350; Wills, **12**, 2321.

SURVEYERORS, see Countes, **13**, 1114; Boundaries, **13**, 506.

SURVIVORSHIP, see Death and Survivability (presumption), **13**, 1242; Deced, etc. (Interpretation), **13**, 12716; Wills, **12**, 2321.

SUSUBERSION OF POWER OF ALIENTATION, see Perpetuities and Accumulations, **13**, 1316.

T.

TAKING CASED FROM JURY, see Directing Yerdict, etc., **13**, 1310; Diecontinuance, D

**UNIDERTAKINGS, 12, 2204.**

**UNDUE INFLUENCE, see Fraud and Undus Influence, 13, 1891; Wills, 12, 2325.**

**UNIFAIR COMPENTITION, see Trade Markes and Trade Names, 12, 2189.**

**UNION DEPOTS, see Railroads, 12, 1538, 1567; Eminent Domain, 13, 1457.**

**UNITED STATES, 12, 2204.**

**UNITED STATES COURTS, see Courts, 12, 1140. As to procedure and jurisdiction, consult the appropriate title for the particular procedure under Investigation.**

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

**UNIVERSITIES, see Colleges and Academies, 13, 762; Schools and Education, 12, 1796.**

**UNLAWFUL ASSEMBLY, 12, 2208.**

**USAAGES, see Customs and Usages, 13, 1165.**

**USE AND OCCUPATION, see Landlord and Tenant, 12, 550; Implied Contracts, 13, 2210.**

**USES, 12, 2209.**

**UNIV, 12, 2209.**

**V.**

**VAGRANTS, 12, 2213.**

**VALUES, see Evidence, 13, 1620; Damages, 13, 1173.**

**VARIANCE, see Pleading, 12, 1389; Indictment, etc., 12, 17.**

**VENDITIONI EXPONAS, see Attachment, 13, 865; Executions, 13, 1728.**

**VENDORS AND PUHCLASSERS, 12, 2213.**

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

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

**VERBAL AGREEMENTTS, see Contracts, 13, 878; Frauds, Statute of, 13, 1918.**

**VERDICTS AND FINDINGS, 12, 2253.**

**VERIFICATION, 12, 2271.**

**VERTO, see Statutes, 12, 1919; Municipal Porations, 12, 906.**

**VIEW, see Trial, 12, 2170; Eminent Domain, 13, 1479; Mines and Minerals (statutory righth of view), 12, 851.**

**VOTING TRUSTS, see Corporations, 13, 959;**

**Trusts, 8, 2169.**

**W.**

**WAVER, see Election and Walver, 13, 1376.**

**WARHOUSING AND DEPOSITS, 12, 2274.**

**WARRANT OF ATTORNEXP, see Confession of Judgment, 13, 793.**

**WARRANTs, see Arrest and Binding Over, 13, 321; Search and Seizure, 12, 1817.**

**VARRANTY, see Covenants for Title, 18, 1147; Sales, 12, 1728, 1752.**

**WARTE, 12, 2278.**

**WATERS AND WATER SUPPLY, 12, 2279; with Special Article, 2, 1112.**

**WATYS, see Easements, 13, 1378, 1380; Eminent Domain, 13, 1458.**

**WEAPONS, 12, 2317.**

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

**WHARVES, 12, 2820.**

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

**WILLS, 12, 2821.**

**WINDING UP PROCEEDINGS, see (Corporations, 13, 994; Partnership, 12, 1226.**

**WITHDRAWING EVIDENCE, see Trial, 12, 2162; Harmless and Frejudicali Error, 13, 2005.**

**WITHDRAWING PLEADINGS OR FLES, see Pleading, 12, 1886; Records and Files, 12, 1664.**

**WITHNESS, 12, 2375.**

**WOODS AND FORESTS, see Forestry and Timber, 13, 1832.**

**WORK AND LABOR, see Assumpsit, 13, 56; Implied Contracts, 13, 2204; Master and Servant, 12, 663.**

**WORKING CONTRACTS, see Building and Construction Contracts, 13, 530.**

**WRECK, see Shipping and Water Traffic, 12, 1881.**
CURRENT LAW

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

Volume XIII. OCTOBER, 1906, Number 1.

**Abandonment** (defined, see 12 C, L, 1143, n. 22), see latest topica! index,

\*\*ABSTRACT AND REVIVAL.\*\*1

\_The scope of this topic is noted below.\_1

Footnote 1: Always begin with the latest article on the subject. Use the latest topical index.

**SS 1. Causes of Abatement, 1. The Pen-**

Cessation of Incumbency of Official

dency of Another Suit or Action, 1.

Dearth of a Party, 3. Failure to Ac-\*\*

**SS 2. Ralsing Objection!**

**Walver, 3.**

quire Jurisdiction, &. Misjolander or

**SS 3. Survivability of Causes of Action, 5.**

Nonjolander of Parties, 3.\*\*

\*\*SS 4. Effect of Abatement Revisal and Con-

of Party's Interest, 3.\*\*

Insanty, 3.

**SS 1.**\_Causes of abatement._2_The pendency of another suit or action._ See 11 C. L. 1

The pendency 3 in a court having jurisdiction 4 of a prior action, though the

pleadings therein are defective,5 is ground for the abatement 6 of a subsequent action,7 where they are identical as to subject-matter 8 and the parties are identical

Footnote 1: Aways begin with the latest article on the subject. Use the latest topical index.

\**1. This topic excludes criminal prosecutions (see Indictment and Prosection.*

**SS 6), bills of revivor (see Equity, * & 6C), re-**

\*\*vival of judgments (see Judgments," & 9), or of statute barred causes of action (see Limitations of Actions, 6) and the abatement of various writs for defects therein (see Attachment, * & 15A), enforced abatement by injunction (see Injunction, * & 2B), judgment on plea in abatement (see Judgments; * Pleading, * & 3). As to matters

which, though not operating as an abatement, are ground for staying proceedings, see Stay of Proceedings.\*

**2. Search Note:** See notes in 3 C. L. 3;

42 L. R. A. 449; 9 L. R. A. (N. S.) 1020; 76 A. S. R. 681; 82 Id. 87; 1 Ann. Cas. 365.

See, also, Abate, and T., Cent. Dig. 81 - 357; Dec. Dig. \*\*SS 1-\*\*70; 1 Cyc. 10-82; 1 A. & E. Enc. P. & P. 750.

**3. Suit for partition in chaneery is not**

abated by fact that notice of petition to be

filed in Orphan's Court under Penn. Laws p.

648, **SS 9**, 10, has been given, petition not

having been filed and such notice not being

a process. Brown v. Gaskill \[N. J. Eq. 7\*

A 665. Action is not abated by commencement of action which was dismissed prior

to commencement of action at bar, where

first action was commenced in state court, removed to federal court, dismissed, and a

second action then brought for a less

amount in state court. Bradford v. Louisville & N. R. Co. \[Ga.\] 65 SE 127. Where

former suit has gone to judgment which is

staged pending appeal, it prevents second

salt. In re Moran, 59 Misc. 133, 112 NYES

207. If prior action has been dismissed, it

is no abatement though costs have not been

pal; being duty of defendant In such case

In absence of agreement to contrary to set-

- Always begin with the latest article on the subject. Use the latest topical index.

13 Curr, L.-- 1.

or in privity.\* The pendency of an action in another court in which the plaintiff in the second action might have interpleaded works no abatement.\[10\] There is a conflict of authority as to the effect of suits, in state and federal courts.\[11\]

- **stockholders an assessment leveled by dh-** **ehscer of such goods.** **Cree v. Bradley's rectors is not on same basic cause as acclion by receiver of corporation to recover an assessment leveled by receiver to pay** **garment will not abate action by tailor creditors.** **Brown v. Allebach, 166 F 48.** **for services done on garment.** **Sowden & Action to enforce line is not abated by** **Co. v. Murray, 114 NYS 164.** **pending contract action for same debt, if** **%. If the real issues be common to the** **there is no conflict in proceedings, con-** **two cases and it appear that there is such** **sturing Rev. St. 1902, c. 197, i 33, in light of construction of prior similar statutes** **remdered in either case would be binding in** **(Rev. St. 1836, c. 117, i 83, Gen. St. 1860, the other, not necessary that all defendants be same either in name or in fact.** **Morrison Co. v. Williams, 200 Mass, 406, SS6** **NES 888.** **Action on debt not abated by acclion** **"Pendency of action instituted at re-** **then on bond given to release line in action.** **Brown v. Kight, 63 Misc. 58, 116 NYS 592.** **Soit based on unconditional contract in** **writing is not abated by pendency of an-** **action instituted by such stockholder for other suit on open account between same parties.** **Graham v. Massengale Advertising Agency, 4 Ga. App. 824, 62 SE 667.** **8uit on promissory note is not abated by** **Co. v. Gray \[Ala\_\] 49 S 347.** **Pendency of cause of action ex delete which may arise** **where vendor fraudulently makes second** **may abate subsequent action by children,** **need to game land.** **McLendon Bros. v. Finch, 2 Ga. App. 421, 58 SE 690.** **Action relating only to individual interests is not abated by pendency of another action relating entirely to corporate matters; hence,** **such by director against stockholder, re-** **listed for taxation will abate subsequent action for same purpose where each on be-** **half of public, though one suit is by agent of county for county and other by agent of state, and one is against** **defonation by such stockholder against all officers** **traders paying for receiver, sale of corpo-** **rate property, and distribution. Stokes v.** **ducary capacity, and more land is de-** **Dimmick \[Ala\_\] 48 S 66.** **Since action based** **explored in second that in first, the proper** **upon distinct statutory cause is not abated by pendency of another action based upon** **monwealth v. U. S. Trust Co. \[Ky.\] 117 SWP mere defensive right, fact that water company was party to condemation proceeding in which its private rights were in-** **every** **other**s\*\* **then** **case** **entries defendant** **may** **party to condemation proceeding in which its private rights were in-** **every** **other**s\*\* \*\* The stay of an action to await the determination of another or until the costs of a previous action are paid is elsewhere treated.\[12\]

\_Death of a party.\_See 11 C. L. --By common law all pending actions abate upon the death of the plaintiff before judgment,\[18\] and the same rule of abatement generally applies to statutory and equitable actions.\[14\] Statutes specifically provide that certain actions shall not abate by death of the plaintiff.\[15\]

A suit in equity is abated by the death of the defendant before decree is entered.\[16\] An action at law is not abated by the death of the defendant after the hearing and making of findings, though before judgment.\[17\] An action though by plaintiff in an official capacity under common-law authority, ordinarily abates by his death,\[18\] but statutes sometimes provide otherwise.\[19\]

\_Failure to acquire jurisdiction_See 11 C. L. -- by reason of defendant being sued in wrong county is ground for abatement.\[20\]

\_Misjoinder or nonjoinder of parties.\_See 11 C. L. --

\_Alienation of party's interest.\_See 11 C. L. --In some states, no action is abated by the transfer of any interest therein.\[21\]

\_Irsanity.\_See 11 C. L. --The discharge of a receiver does not necessarily abate an action wherein he is either plaintiff \[22\] or defendant.

\_S 2. Raising objection; waiver.\[23\] See 11 C. L. --A plea in abatement being a forum which has jurisdiction of parties and of defendant pending hearing on except-subject-matter. Rochelle v. Pacific Exp. Co. \[Tex. Civ. App.\] 120 SW 543.

\_Il.\_See note, 3 C. L. --Bendency of action in federal court, which has been removed from state court, will abate subsequent action in state court between same parties for same cause of action, though amount of such subsequent suitls reduced below $2,000 the jurisdictional amount. Louisville & N. R. Co. v. Newman \[Ga.\] 64 SE 541.

\_Held no abatement.\_Bradford v. Louisville & N. R. Co. \[Ga.\] 65 SE 127. Though on same matter. Brown v. Allebach, 166 F 483. Hence, action for liquidation of a claim in state court is not barred by pendency of bankruptcy proceeding. In re Buchan's Soap Corp., 169 F 1017. In this case, also, some difference in parties defendant, Logan v. Atianta & C. Air Line R. Co. \[S. C.\] 64 SE 515; Bradford v. Louisville & N. R. Co. \[Ga.\] 65 SE 127.

\_12.\_See Stay of Proceedings, 12 C. L. 1959.

\_13.\_Welch v. Lynch, 30 App. D. C. 122; Reck v. Reck \[MAp.\] 73 A 144. Personal injury action. Dillon v. Great Northern R. Co \[Mont.\] 100 P 960.

_14 Action under 4_ 9 of Dram Shop Act. Glasco v. Fakes, 143 Ill. App. 378. Suit for Injunction. Miller v. Waltier, 165 F 359. Suit to quiet title. Bevens v. Henderson \[Ind. App.\] 86 NE 426.

\_15.\_Under Code Civ. Proc. 1 455, action for libel does not abate. Sheltley v. Nelson \[Neb.\] 119 NW 1124. Death of creditor bringing action against estate does not abate such action as to other creditors flinding claims who, under Civ. Code Prac. 1 432.

\_23.\_Search Notei See Abate, and R. Cent. Dig. # 7-24, 123-126, 141-143, 147, 152-156, 168-174, 185, 205-211, 224, 238, 355-257,495-512; Doc. Dig. # 3, 17, 40, 46, 70, 78-88; Pleading, Cent. Dig. # 208-236, dilatory plea,\[24\] unless the objection raised is that the court has not jurisdiction over the subject-matter,\[26\] it must be filed at the first term,\[26\] and before answer \[27\] or other appearance,\[28\] and must be presented before the commencement of the trial on its merits \[29\] or it will be considered as waived.\[30\] An objection based on a defect appearing on the face of the petition must be raised by demurrer,\[31\] but, if the defect does not so appear, the objection must be raised, when based on the prematureness of suit \[32\] or on the pendency of another suit,\[33\] by a verified,\[34\] special plea in abatement,\[35\] or, when based on misjounder of parties \[30\] or want of jurisdiction, by answer,\[31\] and, when based on alienation of plaintiff's interest, by motion for substitution.\[38\] An objection of pendency of prior action is insufficient which

427; Dec. Dig. SS 110-111; 1 Cyc. 45-47, 80-82, 124-137; 1 A. & E. Enc. P. & F. 1, 770.

43, Bray v. Peace, 181 Ga. 637, 62 SE

25. Flea as to jurisdiction of subject-matter may be made at any time before judgement as where plea was for abatement of partition suit in district court because estate was in process of administration in county court, such not being dilatory plea. Wilkinson v. McCart \[Tex. Civ. App.\] 116 SVV 400. May be filed even after answer. Bernstein v. Dalton Clark Stave Co.,\[12\] La. 412, 47 S 753. Question of jurisdiction from reason that cause of action did not survive may be raised at any time. Hey v. Prime. 197 Mass. 474, 84 NE 141. Defect of want of jurisdiction, not appearing on face of petition, not waived by objection there- to being joined in answer with plea to merits. Barnett v. Colonial Hotel Bldg. Co. \[Mo. App.\] 119 SVV 471; Kingman-St. Louis Implement Co. v. Bantley Bros. Hardware Co. \[Mo. App.\] 118 SVV 500. Defendant does not waive right to object to jurisdiction by entering general appearance and including in answer every defense under New York practice controlling on federal courts in that state. Leonard v. Merchants' Coal Co. \[C. C. A.\] 162 F 885. 26. Under Civ. Code, 1895, $ 5058. Bray v. Peace, 181 Ga. 637, 62 SE 1025. Objection that action is prematurely brought should be filed at first term. Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585, 63 SE 638.

01. Bernstein v. Dalton Clark Stave Co., 122 La. 412, 47 S 753. Matter in abatement is waived by a plea in bar, hence plea that no tender of taxes has been made by plaintiff is waived by plea of matter in bar, in action by owner to recover lands held under tax title. Rafferty v. Davis \[Or.\] 102 P 305. Plea in abatement of want of jurisdiction of the person must be filed before answer. Bernstein v. Dalton Clark Stave Co., 122 La. 412, 47 S 753. Plea in abatement is waived by demurring to bill in equity. Cartwright v. West \[Ala.\] 47 S 83.

01. Must be filed before other steps taken when its defect appears on record. Kingman-St. Louis Implement Co. v. Bantley Bros. Hardware Co. \[Mo. App.\] 118 SVV 500. Defendant may waive his right to abate action because he has used in county in which the does not reside by voluntarily submitting his person to jurisdiction of court as where he files general demurrer to bill or moves to dissolve injunction. Clark v. Evans, 138 Ill. App. 56.

01. Bennett v. Knott \[Ky.\] 112 SVV 849.

01. Former action pending. In re Buhan's Soap Corp. 165 P. 1017; Fulvider v. Trenton Gas, L. & P. Co., 216 Mo. 582, 116 SWV 508. And it would be error to dismiss an action after such waived. Himes Sup-

an action after such waived. Himes Sup-

50. V. Parker \[Ala.\] 47 S 794.

01. Misjonder of parties raised by de-

01. Murrer, under Rev. St. 1899, $ 598. Fulvider v. Trenton Gas, L. & P. Co., 216 Mo. 582, 116 SWV 508. Raising objection by answer in such case will not avail. Id. Objection by demurrer that there is another action pending between same parties for same cause, under Code Civ. Proc. $ 488. Queens County Water Co. v. O'Brien, 131 App. Div. 91, 115 NYS 495. Objection of action prematurely brought should in such case be raised by special demurrer. Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585, 63 SE

01. As where defect of jurisdiction over person or subject-matter. Klingman-St. Louis Implement Co. v. Bantley Bros. Hardware Co. \[Mo. App.\] 118 SWV 500.

fails to show that a prior action \[89\] was pending at the time of the commencement of suit at bar,\[40\] and is still pending.\[41\] The plea must properly state the ground for abatement,\[42\] be not vague, indefinite,\[43\] or too extensive in its application.\[44\]

SS 3. \_Survivability of causes of action.\[45\]\_See 11 C. L. # -The common-law rule is that a cause of action \[46\] which is personal and not subject to assignment is not survivable,\[47\] the nature of the matter sued on, rather than the form of remedy, being the test of such survivability.\[48\] It is ordinarily provided by statute that a right of action is not lost by the death of any person, but survives \[49\] in favor of \[50\] or

**39.** Statutory objection by demurrer that husband to recover damages for injury to there is another "action" pending is not whis wife whereby her services or consortium canre lost does not survive. Hey v. Prime, there is another "proceeding" pending, since "proceeding" is not "action" as used for exemplary damages for breach of prom- in Code, construing Code Civ. Proc. 518, **3333**, 3334, 448. Queens County Water Co. v. O'Brien, **131** App. Div. 91, 115 NYS **495**.

40. O'Leary v. Tooker, 116 NYS **664**.

01. Holland v. Western Bank & Trust Co. (Tex. Civ. App.) 119 SW **64**, sustaining 118 SW **218** on rehearing.

01. For sufficiency of plea In general, see Pleadings, 12 C. L. 1323. Plea of want of jurisdiction of subject-matter cannot be made to do service as plea of want of jurisdiction of person. Bernstein v. Dalton Clark Stave Co., 122 La. 412, 47 S **783**.

01. In suit for personal property where petition alleges that defendant bought such property at administrator's sale at certain price, and that he was highest and best bidder, statement in unsworn answer that defendant denied such allegations but admitted that partnership, composed of himself and another, bought the property and it was delivered to them, is not sufficient. Bray v. Peace, 131 Ga. 637, 62 SE 1025.

01. Plea in abatement by two defendants going to whole suit for cause personal to one of them only is defective, plea being defective service or return. Muzroll v. Hetu \[Vt.\] 72 A 323.

01. Search Note: See notes in 5 L. R. A. (N. S.) 755; 13 Id. 643, 1243; 6 Ann. Cas. 513, 651; 10 Id. 725.

See, also, Abate, and R., Cent. Dig. **SS 255-357**. Dec. Dig. **SS 48-70**; 1 Cve. 47-82; 18 A. & E. Enc. P. & P. 1994.

46. "Cause of action" is right to institute judicial proceedings and cannot survive in favor of deceased. Dilton v. Great Northern R. Co. \[Mont.\] 100 P 960.

01. Held that right to file bill to get aside will and codilets and proboste was not assignable. Sedden v. Illinois Trust & Saw. Bank, 239 Ill. 67, 87 NE 860. Right of person interested to contest will did not survive at common law. Id. Right to license to run employment agency is personal and nonassignable. Hannon v. Harper \[Cal. App.\] 98 P 685. As right of action for personal injury where action has not been brought does not survive death of party injured. Dilton v. Great Northern R. Co. \[Mon.\] 100 P 960. Action at law for deceit and fraud resulting in damages for depletion of estate in hands of receiver does not survive death or wrongder. Allen v. Frawley, 138 Wis. 295, 119 NW 565. Right of against 81 the representative of the deceased. Statutes of survival do not, however, create new causes of action, but merely preserve existing rights.\[62\]

\*\*SS 4. _Effect of abatement; revival and continuation of suits.\[53\] See 11 C. L. 7_

At common law, abatement works a dismissal 84 of the original action.\[58\] A suit in equity may be revived 85 in the discretion of the court 87 on prompt application.\[58\] Statutes now generally provide for the revival of actions at law, the right thereto being measured wholly by the statute 89 generally, though not always,\[50\] it is essential that the action be revived in the name of the representative of the deceased before there be any continuation of the suit.\[61\]

Revival when authorized must be in the name of the personal representative of the deceased 82 or some other party entitled to recover therein.\[58\]

which she would have been entitled. amount to termination of suit, but only to Walker v. Lansing & S. Trac. Co. \[Mich.\] suspension thereof for want of parties cap-121 NWV 271. Right of husband at common law to use for loss of services and society being a state of suspension which may be of his wife, where she is injured by third party, does not abate by death of wife, 87. Not revived when unnecessary to ap-12 such right restricted by Burns's Ann. St. 1901, $ 285. Indianapolis & M. Rapid Transit Co., Weeder (Ind. App.) 85 NE and delay have intervened so as to place contact does not release his estate by Code Civ. Proc. $ 758, but his representative should be made party. Hentre v. Haryer, 132 App. Div. 56, 116 SYS 295, 119 NWV 565.

der Pub. Acts 1903, p. 149, c. 193. Appeal of Dunn \[Conn.\] 70 A 703. Under Abatement Act, $ 11, suit shall not abate where representative of such deceased is properly brought into court, his connection with deceased or with attached property being as fully shown as though suit had been originally commenced against him. Tompelims v. Diamond, 140 III. App. 90. Action will survive against executors of defendant who died before bill in equity was filed where action is for money lost through negligace and misconduct of such defendant director of bank, provided such executors be joined as defendant with surviving directors. Alien v. Luke, 163 F 1018. Action for compensatory damages for breach of promise of marriage will survive. Johnson v. Levy, 122 La. 14, 47 S 42. By Rev. Laws, c. 171, $ 1, actions of tort for damage to person shall not abate. Hey v. Prime, 193 Mass. 474, 84 NE 141.

S2. They assume existence of and preserve right of action which Injured party had before death. Dillon v. Great Northern R. Co. \[Mront.\] 100 P 960. See, also, Death by Wrongful Act, 11 C. L. 1019.

53. Search Note: See notes in 11 C. L. 1120. 15 L. L. (N. S.) 632.

See, also, Abate. and R., Cent. Dig. SS 155-494; Dec. Dig. SS 71-77; 1 Cyc. 82-115.

54. Frankfort Councilmen v. Herndon's Adm?T \[Ky.\] 118 SWV 347.

01. Not of new cause of action set up in amendment, in suit to enforce tax ilen where, by amendment after death of defendant, lien for additional taxes was set up and service had on personal representative of deceased defendant. Frankfort Councilmen v. Herndon's Adm?T \[Ky.\] 118 SWV 347.

01. Action in equity may be revived. Miller v. Walter, 165 F 359, Effect of abatement in equity does not, as in law, 18 Cur. Law. ABDUCTION.

The procedure is usually by suggestion of death " which under the statutes serves as a bill of revivor,\[65\] and substitution of parties is thereupon ordered." Any informalities in the revival proceedings are waived by answer."11 Revivor " or continuance of the action is not necessarily barred as to all parties because barred as to one."10

Footnote 11: The author is grateful to the anonymous referee for his comments.

**Abbreviations, see latest topical index.**

**The scope of this topic is noted below."12**

That the female was of unchaste character is no defense."13 Every essential element of the offense must be alleged in the indictment " and submitted by the instructions."14 Failure to submit an issue as to which there is no evidence is harmless."15 It is competent for the father of the female to testify that the taking was without his consent."16 The intent is a question of fact on all the evidence " and any evidence bearing thereon is proper."16

**Abetting Crime; Abide the Event; Abode, see let:est topical index.**

\[C. C. A.\] 167 F 26. Personal representa- 15. Duff v. Combs \[Ky.\] 117 SWP 259.

tives of a deceased plaintiff should be substituted upon proper suggestion in fore- 15. Duff v. Combs \[Ky.\] 117 SWP 259.

clusive suit on note and mortgage. Hanes v. Perkins \[Mich.\] 15 Det. Leg. N. 1070, 119

v. Perkins \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15. Duff v. Lynch, 30 App. D. C. 122. The right to maintain an action to set aside a dead begun by guardian of Incompetent, who dies pending action, passes to sole her and not to ad- 15. Duff v. Combs \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15. Duff v. Lynch, 30 App. D. C. 122. The right to maintain an action to set aside a dead begun by guardian of Incompetent, who dies pending action, passes to sole her and not to ad- 15. Duff v. Combs \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15. Duff v. Lynch, 30 App. D. C. 122. The right to maintain an action to set aside a dead begun by guardian of Incompetent, who dies pending action, passes to sole her and not to ad- 15. Duff v. Combs \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15. Duff v. Lynch, 30 App. D. C. 122. The right to maintain an action to set aside a dead begun by guardian of Incompetent, who dies pending action, passes to sole her and not to ad- 15. Duff v. Combs \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15. Duff v. Lynch, 30 App. D. C. 122. The right to maintain an action to set aside a dead begun by guardian of Incompetent, who dies pending action, passes to sole her and not to ad- 15. Duff v. Combs \[Mich.\] 15 Det. Leg. N. 1070, 119 NVP 439. Surviving husband who is made tenant by courtesy of law by death of his wife and acquires new and independent possession of his own, does not have right thereby to revive and continue in his own name an action in 15.

## 0.8 Appendix

### The scope of this topic is noted below.

Abortion is an offense at common law.78a. In legal terminology the word "abortion" is synonymous with the word "miscarriage" in its primary meaning,80 and the offense is complete when the miscarriage is produced contrary to the statute.81 The crime of attempting to commit abortion is complete when an instrument is used with the intention of procuring a miscarriage,82 and the crime of using means for the purpose and with the intent to procure an abortion is committed wherever the prohibited means are used.83 One who procures the abortion to be done is equally guilty with the person performing the act;84 but a woman is not an accomplice of the person procuring her miscarriage, although she may consent thereto.85 In some states the keeping of a place for the purpose of procuring abortions is indicitable as a nuisance.84 The Texas statute relating to abortion is not unconstitutional in that it does not sufficiently define or describe the offense.87 The indictment or information is sufficient if it follows the statute.88 It need not specifically describe the means used where they are unknown,89 and failure to prove affirmatively that the means used was unknown to the grand jury does not constitute a variance.80 The state must prove the pregnancy of the woman,81 but there is a conflict as to whether the state must negative the necessity of the miscarriage.82 Where the evidence makes a sufficient prima facie case for the state in 88. Acts charged in indictment held suffl-

$.5: 11 M. 10. $.5: 15 M.

this regard, the question as to who has the burden is immaterial," but where the state has the burden it must, of course, make out its case." Circumstantial evidence is admissible to negative the necessity of miscarriage," but such necessity is not necessarily negatived by the fact that the woman was unmarried and that the defendant had illicit intercourse with her." Where the act is alleged to have been committed by administering drugs or using an instrument, it is sufficient if the evidence establishes beyond a reasonable doubt that one or both were used." The previous condition of the woman " and also her subsequent condition," may be proved. Where it is manifest that the miscarriage was produced, as charged, by drugs, previous inquiries by the woman as to the mechanical methods of producing miscarriage is inadmissible.1 Where the evidence raises an issue as to whether the woman herself caused the abortion, such issue should be submitted to the jury." The venue of the offense should be sufficient proved."

Footnote 1: "Aways begin with the latest article on the subject. Use the latest topical index.

**Absesending Debtors, see latest topical index.**

**ABSTRACTES.**\*\*\*\*

_The scope of this topic is noted below._**11**

Footnote 1: "Aways begin with the latest article on the subject. Use the latest topical index.

Under proper safeguards for the protection of his interest in case of his return," and subject to the limitations of the fourteenth amendment of the federal constitution," the state has power to provide for the administration of estates within its jurisdiction of persons presumed, from continued absence, to be dead," and may, when the person is an absentee from the state, leaving no one to represent him for many years, and cannot be found, take his property into its care and custody;"

such necessity an element of the offense. Place alleged in indictment be supported by State v. Wells \[Utah\] 100 P 681.

**93. Evidence, both direct and circumstantial, held to clearly establish prima facle**

**4. See 11 C. L. 10.**

**case in behalf of state without aid of presumption that it was not necessary. State v. Longstreth \[N. D. 121 NW 1114.**

**94. Evidence held insufficient to negative necessity of miscarriage. State v. Wells \[Utah\] 100 P 681.**

**95. Circumstantial evidence is competent to prove absence of necessity. State v. Longstreth \[N. D. 121 NW 1114.**

**96. State v. Wells \[Utah\] 100 P 681.**

**97. Thomas v. State \[Ala.\] 47 S 257.**

**98. Not error to allow state to prove by woman's mother that she had never been pregnant or operated on before, doctor having testified that condition could only have been caused by instruments or childbirth. Thomas v. State \[Ala.\] 47 S 257.**

**99. On prosecution for attempt to commit abortion, doctor's examination of woman may be proved to corroborate state's theory. Thomas v. State \[Ala.\] 47 S 257.**

**S 257. Physical condition 10 days subsequent to time when it is alleged operation was performed is admissible. State v. Fletcher \[N. J. Law\] 72 A 33.**

**1. Carter v. State \[Ind.\] 87 NE 1081.**

**2. Where accused, among other things, introduced proof that woman used hat pin to bring on abortion, court erred in omit-time to charge jury that if abortion was result of punctures with hat pin, they should acquit. Jackson v. State \[Tex. Cr. App.\] 115 SW 262.**

**3. Since jurisdiction of court depended upon place of offense, it is material that**

**where the evidence raises an issue as to whether the woman herself caused the abortion, such issue should be submitted to the jury."**

\*\*The venue of the offense should be sufficient proved.**11**

**should be submitted.**

**Absesending Debtors, see latest topical index.**

\*\*The scope of this topic is noted below.\_**11**

Footnote 1: "Aways begin with the latest article on the subject. Use the latest topical index.

Under proper safeguards for the protection of his interest in case of his return," and subject to the limitations of the fourteenth amendment of the federal constitution," the state has power to provide for the administration of estates within its jurisdiction of persons presumed, from continued absence, to be dead," and may, when the person is an absentee from the state, leaving no one to represent him for many years, and cannot be found, take his property into its care and custody;"

**122.**

**123.**

**124.**

**125.**

**126.**

**127.**

**128.**

**129.**

**130.**

**131.**

**132.**

**133.**

**134.**

**135.**

**136.**

**137.**

**138.**

**139.**

**137.**

**138.**

\*\*139.

but letters of administration on the estate of absentee do not establish even prima facie the fact of death,\* and payment to an administrator of such absentee, who is not in fact dead, is not good as against such person or his legal representatives.\[10\] The absentee, however, has no right to property sold to effect a partition,\[11\] though he may claim his share from coheirs.\[12\] In partition proceedings in Louisiana the curator ad hoc represents the absentee if he is alive,\[13\] and represents his interest in property if he is dead.\[14\]

## 4 Abstracts of Title.\[15\]

The scope of this topic is noted below.\[15\] An abstract of title is a written or printed, short, methodical summary of the documents and facts of record which affect the title to land.\[16\] One contracting to act for a purchaser of real estate as a conveyancer, who examines the title and advises whether it is good and marketable, is liable for failure to exercise due care.\[17\]

The scope of this topic is noted below.\[15\] When an appropriation of property is made in good faith,\[18\] under a mistake of fact, and the taker has by labor converted it into a thing entirely different from

http://www.

the original and of greatly increased value, title passes to him, and the original owner can only recover its value at the time it was taken,\[20\] but, where the identity of the property is not changed, the remedy of the party making the improvements is by way of recovery for the value of such improvements.\[21\] When property has become intermingled in mass without fraudulent intent, the owners become tenants in common in proportion to their several interests,\[22\] but, where the confusion results from careless or willful conduct, the commingler,\[23\] or one who claims under him with notice,\[24\] forfeits his interest unless he can identify his property.

\_Right to recover value of improvements made on land of another,_See 11 C. L. 12_

Ordinarily, a bona fide occupant of land\[25\] under a void deed\[26\] or under color of title,\[27\] without notice of any superior title,\[28\] is, on being ousted, entitled to recover for permanent improvements\[29\] made by him thereon, provided he has acted in good * \[39\] "The 13th century", 1970. 1971. 1972. 1973. 1974. 1975. 1976. 1977. 1978. 1979. 1980. 1981. 1982. 1983. 1984. 1985. 1986. 1987. 2000. 2000.

## 13 Cur. Law.

ACCOORD AND SATISFACTION SS 1A.

## 14 Acord and Satisfaction.

The scope of this topic in noted below.\[39\]

### The Accord, 13.

A. In General. 13.

B. Part Payment, 15.

C. Fraud, Mistake, and Duresa, 16.

S 1. _The accord.\[40\] A. In general.\[See 11 C. L. 13\]_-Accord is a method of discharge of a contract or cause of action, arising either in contract or tort,\[41\] consisting in the substitution of an agreement between the parties in lieu of such contract or cause of action.\[42\] An accord must be predicated upon a bona fide dispute,\[43\] but any claim may be compromised where there is such a dispute\[44\] as distinguished from a totally and clearly unfounded claim,\[45\] though the claim on the one hand and the liability on the other consist more in appearance than in reality,\[46\] provided, however, the transaction constituting the basis of the compromise be not illegal,\[47\] and provided, also, such transaction and the compromise itself be within the power of the contracting parties.\[48\] Subject to these limitations, it is of no importance, therefore, which of the parties is in the right,\[49\] the settlement of the dispute being of itself a sufficient consideration,\[50\] and where there is such a consideration the courts will make no further inquiry in this regard.\[61\] For the purpose of

### 15.

A. In general.\[See 11 C. L. 13\]\_-Accord is a method of discharge of a contract or cause of action, arising either in contract or tort,\[41\] consisting in the substitution of an agreement between the parties in lieu of such contract or cause of action.\[42\] An accord must be predicated upon a bona fide dispute,\[43\] but any claim may be compromised where there is such a dispute\[44\] as distinguished from a totally and clearly unfounded claim,\[45\] though the claim on the one hand and the liability on the other consist more in appearance than in reality,\[46\] provided, however, the transaction constituting the basis of the compromise be not illegal,\[47\] and provided, also, such transaction and the compromise itself be within the power of the contracting parties.\[48\] Subject to these limitations, it is of no importance, therefore, which of the parties is in the right,\[49\] the settlement of the dispute being of itself a sufficient consideration,\[50\] and where there is such a consideration the courts will make no further inquiry in this regard.\[61\] For the purpose of

### 15.

A. In general.\[See 11 C. L. 13\]\_-Accord is a method of discharge of a contract or cause of action, arising either in contract or tort,\[41\] consisting in the substitution of an agreement between the parties in lieu of such contract or cause of action.\[42\] An accord must be predicated upon a bona fide dispute,\[43\] but any claim may be compromised where there is such a dispute\[44\] as distinguished from a totally and clearly unfounded claim,\[45\] though the claim on the one hand and the liability on the other consist more in appearance than in reality,\[46\] provided, however, the transaction constituting the basis of the compromise be not illegal,\[47\] and provided, also, such transaction and the compromise itself be within the power of the contracting parties.\[48\] Subject to these limitations, it is of no importance, therefore, which of the parties is in the right,\[49\] the settlement of the dispute being of itself a sufficient consideration,\[50\] and where there is such a consideration the courts will make no further inquiry in this regard.\[61\] For the purpose of

### 15.

A. In general.\[See 11 C. L. 13\]\_-Accord is a method of discharge of a contract or cause of action, arising either in contract or tort,\[41\] consisting in the substitution of an agreement between the parties in lieu of such contract or cause of action.

arriving at the intention of the parties thereto in making a compromise agreement, their relations at the time it was made \[52\] and the purpose for which it was entered into \[53\] must be considered. The acceptance of a payment tendered as in full of a disputed claim constitutes a complete satisfaction,\[54\] and in any case the acceptance of a thing of value tendered in settlement of a disputed claim discharges such claim,\[55\] but a settlement does not necessarily result from the acceptance of a part payment on a liquidated claim.\[56\] It is sometimes held that one accepting a payment tendered in full is precluded from repudiating the settlement under the doctrine of estoppel as distinguished from accord and satisfaction.\[57\] A compromise agreement need not be in writing.\[58\] A compromise agreement will be given a reasonable interpretation with the view of giving effect to the intent of the parties,\[59\]

v. Heald \[N. J. Law\] 72 A 421; Sovereign \[in full settlement of debt, and acceptance camp, Woodmen of the World v. Bridges \[C. C. A.\] 165 F 342. Whatever considera- tion le accepted will be considered sufflement. Cleveland, etc., R. Co. v. Hillsions \[Int.\] 86 NE 485. \[52. Perry v. Dance \[Ky.\] 112 SW 911. \[53. Perry v. Dance \[Ky.\] 113 SW 911. \[54. Perry v. Dance \[Ky.\] 113 SW 911. \[55. Perry v. Dance \[Ky.\] 113 SW 911. \[55. Perry v. Dance \[Ky.\] 113 SW 911. \[55. Perry v. Dance \[Ky.\] 113 SW 911. \[55. Perry v. Dance \[Ky.\] 113 SW 911. \[55. Perry v. Dance \[Ky.\] 113 SW 922. \[55. Cunningham v. Standard Cont. Co. \[Ky.\] 119 SW 765. Acceptance and eashing of check tendered as in full of all claims. Cohen v. Levine, 114 NYS 840; Galvin v. Gaussen, 11 Ohio C. (N. S.) 463; Cunningham v. Standard Cont. Co. \[Ky.\] 119 SW 765; Andrews v. Haller Wall Paper Co., 32 App. D. C. 392. Acceptance of draft tendered as payment in full. Probst v. Ehrat, 140 Ill. App. 309. Defendant forwarded purchase price of goods less rebates and a sum which she claimed due her for breach of contract by plaintiff, which was accepted by plaintiff. Ravenwood Paper Mill Co. v. Dix, G1 Mise. 235, 113 NYS 721. Where aggregate amount is in dispute, payment of specified sum conceded to be due, that is by including certain items, but excluding disputed items, on condition that sum so paid shall be re-evolved in full satisfaction, will extinguish whole. Bags Dry Goods Goo. v. Roberts Coal Co., 4 Ga. App. 520, 61 SB 1134. Insurance policy provided that if insured committed suicide insured would not be liable. There being suspicion that insured did commit suicide, insurer and beneficiary settled by part payment. Sovereign Camp, Woodmen of the World v. Bridges \[C. C. A\] 165 F 342. Dispute as to amount due plaintiff from defendant. Having drawn draft on defendant for amount claimed to be due by plaintiff, defendant refused to pay amount, but said it would pay amount which It conceded to be due. Thereupon plaintiff drew a draft for conceded amount, which draft was paid by defendant. Gar- bust Lumber Co. v. Wilcox \[Ga. App.\] 64 SE 291. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. 55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[55. \[5 5. \[5 5. \[\[5 5. \[\[5 5 5. \[\[5 5 . \[\[5 5 . \[\[\[5 5 .\[\[\[5 5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[5 \[ \[5 \[5 \[ \[5 \[5 \[ \[5 \[5 \[ \[5 \[ \[5 \[ \[5 \[ \[5 \[ \[5 \[ \[5 \[\[5 \[ \[5 \[\[5 \[\[5 \[\[\[5 \[\[\[5 \[\[\[5 \[ and will not be extended so as to create an estoppel not contemplated by them.\[60\] Where an injured party accepts satisfaction for injuries from one of two joint tort fesors and releases that one from further liability, the other is also released.\[61\] And this rule is not confined to those who are strictly joint wrongdoers,\[62\] but embraces all persons whom the injured party might sue jointly or severally for the wrong complained of,\[63\] whether the party with whom the compromise was made could have been legally held in an action for damages or not.\[64\]

(SS 1) \_B. Part payment.\[65\]\_86611C.L.14_Part payment of a liquidated sum due, though accepted in satisfaction, does not constitute a complete discharge of the debt,\[66\] even though the creditor expressly agrees to accept it in full payment.\[67\] This rule, however, should be confined to cases strictly within it\[68\] and is constantly departed from upon slight distinctions,\[69\] as where the medium of payment is changed,\[60\] or where the circumstances render the agreement presumptively ad-

might be rendered against city. City of Owensboro v. Westinghouse, Church, Kerr 1 Ann. Cas. 801; 5 Id. 525.

& Co. \[C. C. A.\] 165 F 356.

& Co. Where one, for stipulated sum, agreed 1 Dig. % 45-97; Dec. Dig. % 6-12; 1 A. & E. not to contest will, she was entitled, never-theless, to claim her interest in estate, 1 Dig. % No consideration. Sovereign Camp, where will was set aside, at instance of 1 Dig. % 42. Missouri-American Elec. Co. % 88 NE 150.

&I. Breeden v. Frankfort Marine, Accel- dent & Plate Glass Ins. Co. \[Mo.\] 119 SWV 876; Roberts v. %76; Borchardt v. People's Ice Co., 106 Min. % 14, 118 NWV 359. One satisfaction is bar to further proceedings on same cause of action. Cleveland, etc., R. Co. v. Hilligosa \[Ind.\] 86 NE 485. Contract which purports (and forwarded a check for this door jointly liable with others, to be affective, must clearly, show that injured party, 117 NWV 953.

for consideration, has surrendered to party 1 m whose favor contract runs all vantageous to the creditor,\[71\] or where there is some element recognized by the parties as the moving cause,\[72\] or where there is a new consideration.\[78\]

(SS 1) \_C. Fraud, mistake and duress,\[74\]-See 11 C. L. 18--An accord may be set aside for fraud or mistake,\[75\] provided the mistake be mutual,\[76\] but voluntary payments pursuant to a settlement made under a mistake of law cannot be recovered back.\[77\] Nor may one avoid an agreement on the ground of fraud while retaining the benefits received thereunder.\[78\] A threat to prosecute a claim in a civil action will not constitute such duress as to vitiate an agreement of compromise made on account of such threat.\[78\]

SS 2. \_Satisfaction or discharge,\[80\]-See 11 C. L. 19--Satisfaction and discharge results from the execution of the agreement of accord\[81\] unless the agreement or

**71.** Such as insolvency of debtor, giving of security. Cartan v. Thackaberry Co. \[Iowa\] 117 NWP 958. Creditor accepted certain sum from one not liable theref and agreed that such sum should be in full settlement of claim against surety. Ex parte Zeigler \[S. C.\] 64 SE 513. Rehearing denied, Ex parte Zeigler \[S. C.\] 64 SE 916.

**72.** Such as insolvency of debtor, giving of security. Cartan v. Thackaberry Co. \[Iowa\] 117 NWP 958. Creditor accepted certain sum from one not liable theref and agreed that such sum should be in full settlement of claim against surety. Ex parte Zeigler \[S. C.\] 64 SE 513. Rehearing denied, Ex parte Zeigler \[S. C.\] 64 SE 916.

**73.** Functions by one deal-ment of debtor will result in an accord and satisfaction of debt in full.

**74.** Constructing fraud or duress that will avoid a settlement. Bowers v. Good Civ. App.\] 119 SVV 908. Creditor re-ceived payment of less sum thirty-nine days before due besides verbal waiver of right to appeal at time when he was at hospital and could not live but few weeks.

**75.** Another of the account between himself and the defendant, instead of availling himself Donahue v. Brooks, 143 III. App. 188.

**76.** Another of the account between himself and the defendant, instead of availling himself of those means, chooses to execute a contract of settlement in ignorance of the fraud.

**77.** Another of the account between himself and the defendant, instead of availling himself of those means, chooses to execute a contract of settlement in ignorance of the fraud.

**78.** Another of the account between himself and the defendant, instead of availling himself of those means, chooses to execute a contract of settlement in ignorance of the fraud.

promise, instead of the performance thereof, is accepted in satisfaction," in which case the transaction really amounts to a novation."

SS 3. _Pleading_, \_issues, and proof."\_See 11 C. L. 10--An accord and satisfaction must be specially \[85\] and sufficiently \[86\] pleaded. Accord, with part execution, cannot be pleaded in satisfaction," but may in a proper case become available as an equitable defense."

A general settlement is presumed to include all existing differences," and, where a compromise agreement itself bears no date, it will be presumed to operate as of the date on which it is carried into effect."

Lapse of time and acquiescence strengthens a settlement," and may even render it conclusive."

The burden of proving fraud, mistake, or undue influence, is upon the party asserting it," and the evidence must be clear and satisfactory."

Whether or not there has been was not precluded by unexecuted agreeement to settle for sum less than that used for. Carter v. Chicago, B. & Q. R. Co. \[No. App.\] 119 SV 35. The reason for nonperformance is immaterial. Norit State Fire Ins. Co. v. Dillard \[Ark.1 115 SV 154.\] In a proper case an unexecuted accord is available as an equitable defense. Trent St. R. Co. v. Lawlor \[N. J. Err. & App.\] 71 A 234.

Held settled by empromise: Claims for trespans to land, parties having made compromise and plaintiff having received dead to land. Newberry v. Chicago Lumhering Co., 154 Mich. 84, 15 Det. Leg. N. 663, 117 NW 592. Claim arising out of alleged fraudulent representations by vendor of land held settled by transfer of other lands to vendee. Zan v. Clark \[Tex. Civ. App.\] 117 SV 892. Acceptance of rent under agreement of reduction. Zindler v. Levitt. 132 App. Div. 397, 116 NY8 726. If parties agree upon terms by which litigation between them was to be settled and money is paid by one in furtherance of such agreement, the other must live up to it. Dots on v. Carter \[Key.\] 112 SW 1116; Kesser v. Colebrook Nat. Bank \[N. H.\] 73 A 170.

s2. North State Fire Ins. Co. v. Dillard \[Ark.\] 115 SV 164; Carter v. Chicago, B. & Q. R. Co. \[Mo. App.\] 119 SV 35. Mutual promises are good as an accord and satisfaction of a prior obligation, if intent was to accept new promise, as satisfaction of the prior obligation. Goffe v. Jones, 117 NY8 407. When new agreement is accepted in satisfaction, the rights of parties must be determined with reference to such new agreement. Fritz v. Fritz \[Iowa\] 118 NW 769. Original cause of action is extinguished by performance of or offer to perform such agreement. Boswell v. G.1- len. 131 Ga. 316, 62 SE 187.

Held settled by empromise agreement: Mortaggor's equity, und-r decel absolute claimed to be a mortrage, held extinguished by agreement to accept dead to part of land in full settlement of all claims. Compton v. Johnson, 240 Tl. 438, 88 NE 988. Claim for damages from collision between two vehicles. Woodward v. Nasi, 113 NY8 751. Partnership dispute held settled by dissolution agreement. Fritz v. Fritz \[Iowa\] 118 NW 769. Defendant agreed not to sue plaintiff if the latter would repair certain fence and leave certain timber, which plaintiff had right to remove from 13 Curr. L.-2.

Defandant's land under prior contract. Cranor Smith Lumber Co. v. Frith \[Key.\] 118 SW 307.

S3. See Novation, 12 C. L. 1117.

S4. Search Note: See Accord and Satisfaction, Cent. Dig. $59, 83, 97, 110, 135, 150-166; Dec. Dig. $25-27; 1 Cycle. 340-349; 1 A. & B. Enc. P. & P. 73.

S5. Cannot be proved under general denial. Harvey v. Denver & R. G. R. Co. \[Colo.\] 99 P 31.

S6. Consideration must be alleged. City Council of Montgomery v. Shirley \[Ala.\] 48 8679. Where plea by its averments sets up defense of parol agreement on part of creditor to accept, and payment by debtor of less sum than real debt, concerning which there was no dispute, it is subject to demurrer. Scott & Sons v. Rawits \[Ala.\] 48 8 710. Plea averring merely payment and acceptance of less than full amount due in unduspated claim is demurable. Id. Answer that plaintiff for certain consideration had released one jointly liable with defendant for the tort constituting the basis of the action hell sufficient, though it did not allege that plaintiff had any ela in against the party released, since plaintiff by accepting benefit of alleged settlement.

would be setopened to deny cons'dration thereof. Cleveland, etc., R. Co. v. HillEloss \[Ind.\] 86 NE 485.

S7, Goffe v. Jones, 117 NY8 407.

S8. Trenton St. R. Co. v. Lawlor \[N. J. Err. & App.\] 71 A 234.

S8. Burrows v. Williams \[Wash.\] 1 an accord and satisfaction is ordinarily a question of fact to be determined by the jury.95 A receipt is not conclusive evidence that the thing received was accepted in full settlement,96 nor is one necessarily bound by mere admissions and acknowledgments as to the amount due him.97 In a suit on a compromise agreement, the terms of the contract under which the compromised claim arose are immaterial.98 When the plaintiff in an action on a compromise agreement denies on cross-examination that he has previously sued on the original cause of action, it is proper to allow him on redirect examination to testify as to his understanding of the cross questioning as to the prior suit.99 Papers turned over to a party in the making of a settlement are admissible as a part of the transaction,1 and, where he fails to produce them, it will be presumed that they contain proof against him on all matters as to which they are the best evidence.2

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

#### Accounting, Action for

\_The scope of this topic is noted below.\_9

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

## 1 Nature of remedy and jurisdiction of courts

See 11 C. L. 20--Equitable jurisdiction to require an accounting depends upon the discovery sought,\* the existence of a trust or fiduciary relation,\* and the fact that the advantage of the accounting outweigh the disadvantages.\* It is also essential to such jurisdiction that the real object of the suit be an accounting,\* rather than the mere recovery of a money judgment,\* or where the accounting is sought only by way of incidental relief.\* The suit must, furthermore, not be based upon an account stated, \[11\] and an accounting must be asked for \[12\] and be necessary \[14\] in the interest of the party

- 4. Search Note: See notes in 3 C. L. 25.

NYS 5. In absence of contract or fraud, for what defendant has gained by securing absolute title to land by regular procedure under redemption statute, especially where validity of redemption and present validity and status of mortgage is unquestioned, and accrued profits are result of advance in value and not of any wrong on defendant's part. Barker v. Moore \[N. D.\] 118 NW 823. On mere option to buy stock share a jurisdiction to settle account of trustee. Id.

Trust relation held to exist so a to authorize accounting, where trustee of land to author with agreement from other that it should remain out of competing business during pendency of loan, especially where it was no part of chartered business to make loans. Earle v. American Sugar Refining Co. \[N. J. Eq.\] 71 A 391.

NYS 823. On mere option to buy stock share a jurisdiction to settle account of trustee. Id.

Hartle v. Brennig, 131 App. Div. 742, 116

NYS 51. Where one company made loan to author with agreement from other that it should remain out of competing business during pendency of loan, especially where it was no part of chartered business to make loans. Earle v. American Sugar Refining Co. \[N. J. Eq.\] 71 A 391.

NYS 701. Not allowed in suit by policyholder to have receiver appointed and affairs of mutual insurance company wound up. Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 63 Law. Ed. --

Relief may be equitable though it ask for money judgment. Grand Lodge A. O. U. W. \[Conn.\] 10 A 617. Allowed where relief demanded was equitable proportion of certain funds, although action was based upon a contract. Grand Lodge A. O. U. W. of Conn., Grand Lodge A. O. U. W. of Mass. \[Conn.\] 70 A 617.

seeking it.14 The occasion therefor must actually exist \[18\] and must affirmatively appear.16 It is likewise essential that the amount involved be sufficient to warrant equitable interference,17 that no adequate remedy at law exists,18 and that there be no disputed matter of law to be determined preliminary to the accounting.19 Any objection to such jurisdiction may be waived, however, by a participation in the suit without objection.20

SS 2. _Persons liable and entitled to accounting.21--See 11 C. L. 21--A person may lose his right to an accounting by laches \[22\] or through limitations.23_

SS 3. \_Practice and procedure.24 Parties._See 11 C. L. 21--All persons necessary to a complete accounting should be joined,25 and in some cases persons not absolutely necessary but having possible interests may be joined.26 Necessary parties may be brought in by amendment.27_

\_Pleading.See 11 C. L. 21--A bill for an accounting should show the existence of mutual accounts,28 the discovery sought and the necessity therefor,29 and plaintiff's right thereto,30 and, also, defendant's responsibility for the wrongdoing complained

Footnote 28: The author is grateful to the anonymous referee for the support of the 2010 research and the anonymous referee of,\[31\] and that no adequate remedy at law exists.\[32\] It should question the correctness of an account rendered.\[33\] It may request an accounting on separate and independent transactions.\[34\] Such bill is not demurrable because the exercise of jurisdiction appears therefrom to be within the court's discretion,\[35\] because it does not appear that the amount involved is sufficient to warrant equitable interference,\[36\] because it fails to negative every possible defense,\[37\] because it fails to show performance of a condition ordinarily precedent, the performance of which was prevented by neglect of the defendant,\[38\] or because it appears that an apportionment was made, where there is a distinct allegation of fraud in the making thereof.\[20\] An amended bill may be maintained for the purpose of correcting an error in a settlement in pais.\[40\]

\_Evidence.\_See 11 C. L. 21--So far as books and papers are necessary to an accounting, their production can be compelled,\[41\] although not generally until after plaintiff's right to an accounting has been established.\[42\] Partnership books of accounts, unless uncertain in their showing,\[43\] are ordinarily admissible as evidence in an accounting between partners.\[44\] An apportionment by an insurance company is considered in evidence as being prima facie correct.\[45\]

\_Decree and reference.\_See 11 C. L. 22--Plaintiff on establishing his right to an accounting is entitled to an interlocutory judgment therefor,\[46\] which judgment should precede the order of reference.\[47\] A master's report is sufficient where it substantially complies with the requirements of the decree and is clearly intelligible.\[48\]

company is sought. Ryan v. Knights of 385. 200 Mass. 579, 86 NE Columbus \[Conn.\] 72 A 574. 31. Equitable Life Assur. Soc. v. Brown. 40. 313 U. S. 25, 53 Law. Ed. 40. 41. Before referee. Moore v. Reinhardt. 41. 12 App. Div. 707, 117 NYS 534. Application for production of books and papers so as to bring case within rule 14 of general rules of practice should show that discovery is necessary and would disclose material evidence. Id. See Discovery and Inspection, 11 C. L. 1109. 42. After interlocutory judgment. Moore v. Reinhardt, 112 App. Div. 707, 117 NYS 534. 43. Partnership books and accounts, so uncertain in their showing that no conclusions other than mere conjecture can be drawn therefrom, will not be considered in evidence in suit for accounting between partners. Donaldson v. Donaldson, 237 Ill. 318, 86 NE 604. 44. Partnership ledgers kept by bookkeeper, admissible as original entries in accounting between partners, since bookkeeper is regarded as agent of each partner. Schilcher v. Whyte \[N. J. Err. & App.\] 71 A 337. Books kept by one partner and open to inspection of others are admissible in evidence as partnership books. Donaldson, 237 Ill. 318, 86 NE 604. 45. 46. 47. 48. 49. 41. 42. 43. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 68. 69. 62. 64. 69. 63. 67. 68. 69. 60. 61. 69. 60. 62. 61. 61. 62. 63. 64. 65. 67. 68. 69. 61. 69. 60. 62. 64. 66. 68. 69. 61. 62. 64. 67. 69. 62. 65. 68. 69. 60. 63. 69. 61. 64. 66. 67. 68. 69. 61. 68. 69. 62. 69. 63. 64. 69. 64. 68. 69. 60. 65. 67. 69. 61. 68. 69. 62. 69. 60. 61. 69. 61. 62. 63. 64. 66. 68. 69. 61. 69. 62. 64. 69. 63. 65. 66. 67. 68. 69. 61. 69. 60. 61. 69. 62. 64. 69. 61. 69. 62. 65. 66. 67. 68. 69. 61. 69. 60. 61. 69. 62. 66. 67. 69. 61. 68. 69. 60. 61. 69. 62. 61. 63. 64. 66. 68. 69. 61. 69. 62. 65. 69. 61. 69. 63. 66. 69. 61. 69. 60. 61. 69. 62. 61. 69. 63.

**SS 4.**\_Requisites, form, substance, and statement of the account.\_49_See_c. L.

**11**--An account is the statement of the receipts and payments of an executor, administrator, or other trustee of the estate confided to him.50

**ACCOUNTS STATED AND OPEN ACCOUINTS.**

\_The scope of this topic is noted below.\_51

**SS 1.**_Nature and Elements at the Several_

**SS 2.**_Remedies on Account Stated, 23._

**An account stated is in effect a contract as to an agreed balance due**53 \*\*and un-paid.\*\*54 **It is an account rendered**55 \*\*to the debtor or his authorized representative,\*\*56 \*\*upon a previously existing debt,\*\*57 **and expressly**58 **or impliedly**59 \*\*acknowledged as correct.\*\*50 \*\*Such acknowledgment may be implied from an acceptance,\*\*51 \*\*examination, and retention of the account by the debtor,\*\*52 **and from his failure to object thereto**53 \*\*within a reasonable time.\*\*54 **An acknowledgment to be effective**

**figures substantially appeared in deposit.** \[Mont.\] 98 P 883; Sariol v. McDonald Co., tions annexed to report. Schlicher v. 127 App. Div. 648, 111 NYS 796.\*\*

**Wbyte \[N. J. Err, & App.\] 71 A 337.**

**SS 3.**\_Doubleday, Page & Co. v. Shumaker, 49.\_Search Note: See Account, Cont. Dig. 60 Misc. 227, 113 NYS 83.\*\*

**SS 109-131; Dec. Dig. 8 20; Equity, Cont.**

\*\*SS 17.

must be unconditional.\[68\] A mutual account is one with items for and against each party.\[69\]

SS 2. \_Binding effect, rights and liabilities.\[97\]\_See 11 C. L. 28_The items of an account stated are considered as prima facie correct \[68\] in the absence of allegtion and proof of duress, fraud, error, or mistake \[69\] of which the debtor did not have knowledge,\[70\] and in which he did not acquiesec.\[71\] An account stated will not ordinarily be set aside after the lapse of considerable time.\[72\] Ordinarily a suit for an accounting is barred by an account stated,\[73\] but claims accruing after service of such account are not barred thereby.\[74\] The rendition of an unaccepted account does not estop the creditor from subsequently claiming a larger amount.\[75\]

SS 3. \_Remedies on account stated.\[76\]\_See 11 C. L. 24_The right to a remedy on an account stated rests exclusively upon evidence of the alleged agreement as to the amount due.\[77\] While the question of express ratification of the account is for the jury,\[78\] there is some conflict as to the jury's right to pass upon the question of ratification implied from delay in objection to an account rendered.\[79\]

comes account stated, does not apply or- all parties had access. Barlow v. Platt, dinarily to transactions between banker \[117\] NYS 235.

and customer. McGraw v. Traders' Nat.

Proof of fraud or mistake must be clear Bank \[V. Va.\] 63 SE 398. Receipt and retention without objection for considerable time of balanced passbook and can- celled checks does not constitute an account stated, so as to require suit for accounting upon discovery of payments made and charged on forged indersements.

Lleber v. Fourth Nat. Bank \[Mo. App.\] 117 SWY 672. See Banking and Finance, 11 C. L. 370.

65. Not effective if any items are left for future determination. Quayle v. Team, 15 Idaho, 66, 99 P 707. Doublday, Page & Co. v. Shumaker, 60 Misc. 227, 113 NYS 83.

Evidence held insufficient to show account stated where plaintiff testified that defendant stated that "there were some differences" between them and that he "would have to go over the books." Weidenreich v. Borine Mfg. Co., 113 NYS 702. A mere promise contingent on the happening of another event Is not account stated, as where defendant promised that plaintiff "would then get all the money coming to them." Ershowsky v. Korn, 113 NYS 478.

66. Roberts v. Neale, 134 Mo. App. 612, 114 SWY 1120; Hobbs v. Crawford, 4 Ga. App. 585, 62 SE 157.

01. Searre Note: See Account Stated, Cent. Dlg. 51 41-57, 60-80; Dec. Dig. 81 7-13; 1 Cyc. 388, 450-471; 1 A. & E. Enc. L. (2ed.)

01. Settlement does not create an estoppel but furnishes strong prima facie presumption that result is correct. Johnson v. Gallatin Valley Mill. Co. \[Mon.\] 88 P 883.

01. Poppcl v. Culpepper \[Fla.\] 47 S 351; Baltimore & O. R. Co. v. Berkeley Springs & P. R. Co., 168 F 770; Naylor v. Lewiston & S. E. Elec. R. Co., 14 Idaho, 789, 96 P 573; Davis v. Stephenson, 149 N. C. 113, 62 SE 900. Impecahable for fraud. The Washte-naw, 163 F 372. Account stated, being mere admission of correctness of account and not an estoppel may be impeached for mistake. Boyce v. Walker, 130 App. Div. 305, 114 NYS 166. Held no fraud or mis-take where disocuntions were taken according to custom and shown on books to which

## 4 Remedies on open accounts

See 11 C. L. 24--The account used on should ordinarily be itemized,\[81\] and defects in this regard are reached by demurrer\[82\] or objection to the evidence,\[83\] but are curable by amendment.\[84\] Ordinarily the account should also be verified,\[85\] since the statutes commonly provide that a verified account to which no verified denial is filed shall be taken as true,\[88\] but verified denial puts plaintiff upon this proof.\[87\] The fact that plaintiff is suing on a verified account does not preclude him from introducing proof as in a simple action on an account.\[88\] The evidence should show any transfer of the account,\[89\] and the proof be sufficient to support the account used on.\[90\] Any evidence showing how the account introduced was kept is admissible.\[81\] Account books are not admissible when they do not appear to have been properly kept.\[92\] It is within the province of the jury to determine whether the items constitute one or more accounts,\[93\] and to take into consideration any change in a verified account or in the verification thereto.\[84\] The court or referee should make a statement of the account showing the items allowed and disallowed.\[85\]

## Acknowledgments

The scope of this topic is noted below.\[96\]

## References

- \[1\] N. Naturre, _Office, and Necessity_, 24.

instrument is presumed to have been properly acknowledged.\[99\] Acknowledgment is also essential in certain cases in order to render the instrument effective,\[1\] though, as a general rule, acknowledgment is not essential to the validity and effectiveness of an instrument as between the parties thereto.\[2\] Even where an instrument is required by statute to be acknowledged, it may be sufficient to pass an equitable interest or title though defectively acknowledged.\[3\]

## 2 Officers who may take

See 11 C. L. 26--The officers who may take acknowledgments are specified by the statutes of the various states,\[5\] and, where the clerk of a county is authorized to take acknowledgments, his deputy may certify an acknowledgment in the clerk's name by himself as deputy.\[6\] One standing in the position of a beneficiary under a conveyance or other written instrument cannot take the acknowledgment,\[7\] but an acknowledgment by grantors taken before a grantor is not void.\[8\]

## 3 Taking and making acknowledgments

See 11 C. L. 26--In some states the acknowledgment of a married woman must be taken privily and apart from her husband,\[16\] but a defective acknowledgment by a married woman will not invalidate an instrument to which her signature is not necessary.\[11\] A defective acknowledgment of an instrument by a corporation does not necessarily render the instrument void as between the parties.\[12\]

## 4 The 113-114

The 113-114 system is a 113-114 system, which is a 113-114 system, which is a 113-114 system.

## Acknowledgments & 4

### Persons who may make

See 11 C. L. 80

**SS 4.**\_Certificate of acknowledgment.\_13_See 11 C. L. 26--The purpose of the certificate of acknowledgment is to show that the instrument has in fact been acknowledged when so required by law,14 and to establish the identity of the grantor and the genuineness of the signature,15 but the notary is not required to certify to the ownership of the property.16 The sufficiency of the certificate of acknowledgment is determined by the laws of the state where made,17 and it is generally held sufficient if it shows that the requirements of the statute have been complied with in substance,18 a mere irregularity not necessarily being fatal,18 though it consist in the omission of a statutory requirement,20 but the statute must be complied with at least substantially.21 The certificate must be made before delivery of the in-

- 13. Search Note: See notes in S 4. C. L. 33; 14 L. R. A. 815; 19 Id. 279; 4 L. R. A. (N. S.) 442; 11 Id. 643; 6 A. S. R. 642; 64 Id. 150; 2 Ann. Cas. 990, 10 Ann. Cas. 129.
- See, also, acknowledgment, Cent. Dig. 11 151-220; Dec. Dig. 11 29-88; 1 Cyc. 538; 871-100; 1 A. E. Enc. L. (2ed.) 526.
- 14. Ded having no certificate of acknowledgment by grantor not entitled to record under Rev. St. 1889, 1 2418. Willa-
- 13. Proper certificate is essential to validity of married woman's deed. Id.
- 15. Officer must either personally know party or have satisfactory evidence of the fact that he is identical person described in and who executed instrument. Homan v. Wayer \[Cal. App.\] 98 P 80. Person who is not sufficiently known to notary to allow latter to certify to his identity without proof is not sufficiently known to him to be credible witness to prove grantor's identity. Id.
- 16. Homan v. Wayer \[Cal. App.\] 98 P 80.
- 17. According to laws of V. Va., the following was held insufficient,--And the said Mary L. B. White, wife of said Thomas C. White, being examined by me privily and apart from her said husband, and having the said writing explained to her, declared she had willingly executed the same and does not wish to retract it." Gillespie v. Poachonatos Coal & Coke Co., 162 F 742.
- 18. Certificate of notary public that president of corporation appeared before him, and acknowledged as his voluntary act and feed a conveyance duty signed, sealed, and witnessed by said corporation, entities said instrument to record, although somewhat irregular. Powers v. Spiedel (Neb.) 121 NW 968. Omission from certificate of acknowledgment of deced that grantor "executed the instrument for the purposes and consideration therein expressed" is not fatal defect. Ariola v. Newman \[Tex. Civ. App.\] 113 SW 157. Certified copy of records held admissible to prove deed, although names of grantors were inserted or set out in the body of the acknowledgment, at the place in which name and style of officer taking acknowledgment should have appeared, it appearing though that certificate was signed at bottom by Justice. Stephens v. Middlebrook \[Ala.\] 49 S 321. Under Kirby's Dig. 11 3901, making it necessary that wife join and acknowledge any instrument effecting the homesetad, no certain form being pro-
- 13. Certificate of acknowledgment: 13 13 Cur. Law.
- 14. Certificate of acknowledgment: * 13 Cuv. Law. ACKNOWLEDGMENTS SS 4
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## 5 Authentication of officers' authority

See 9 C. L. 25--A notary's seal is sometimes held sufficient, without a certificate that he is such officer.\[40\]

## 6 Operation and effect

See 11 C. L. 28--A forged instrument may be rendered effective by acknowledgment by the person purporting to have executed it.\[41\]

## 7 Defects and invalidities

See 11 C. L. 29--A defective acknowledgment may be cured by legislation.\[40\] In Texas, under certain circumstances, an instrument which has been recorded for ten years must be admitted as evidence although insufficiently acknowledged.\[41\]

\_Liability for defective or false acknowledgments.\_See 9 C. L. 26--A notary public and his sureties on his official bond are liable to persons injured because of his official misconduct or neglect,\[42\] and if the false certificate is relied on to another's loss it matters not that others contribute to the injury.\[43\] The grantee may be chargcible with the fraud of the officer in taking an acknowledgment.\[44\]

## 8 Actions

See 9 C. L. 26--A notary public and his sureties on his official bond are liable to persons injured because of his official misconduct or neglect,\[42\] and if the false certificate is relied on to another's loss it matters not that others contribute to the injury.\[43\] The grantee may be chargcible with the fraud of the officer in taking an acknowledgment.\[44\]

## 9 The scope of this topic is noted below

\[40\]

- 13 Cur. Law. \**ACTIONS.*
- A civil action is the means by which a right or cause of action is pursued in a court of justice,\[46\] and may ordinarily include actions demanding either equitable or legal relief, or both,\[47\] but it is distinct from a mere proceeding.\[48\] An action in rem is one taken directly against property,\[49\] while a personal action ordinarily includes all actions except those in rem.\[50\] A right of action at law is one arising from the existence of a primary right in the plaintiff and an invasion of that right by some delict on the part of the defendant.\[51\] /The term "suit" is generally applied to any proceeding in a court of justice by which one pursues that remedy which the law affords him.\[52\] In the construction of statutes relating to actions, the ordinary meaning will be given to the words "commence," ss "institute," \[54\] and "continue." ss An action is pending from the time of its commencement until its final determination.\[56\]
- An action must be based upon some substantial existing controversy,\[57\] and cannot be based upon plaintiff's own misconduct.\[58\] If, however, a right of action exists, the plaintiff's motive in bringing the action is usually of no consequence.\[59\] A statutory right of action depends solely upon the creative statute,\[60\] and may be Cye. 634-757; 1 A. & E. Enc. P. & P. 108; 16 50. Kean v. Rogers \[Iowa\] 118 NW 515. Id. 873.
- 45. Includes only questions relating strictly to civil actions generally. Excludes causes of actions and defenses (see Causes of Action and Defense) *, forms of action (see Forms of Action*), joiner of causes of action (see Pleading,
- SS 2), consolidation of actions and matters relating to procedure (see Trial,
- SS 1), limitations of actions (see Limitations of Actions\*), malicious actions (see Malicious Protection and Abuse of Process\*), and criminal proceedings (see Indictment and Proscution.
- See, also, the topics relating to specific crimes). Excludes, also, particular kinds of actions (see such topics as Acounting, Action for;
- 40. Means provided to put cause of action into effect. McAndrews v. Chicago, etc., R. Co. \[C. C. A.\] 162 F 856. Ordinary proceeding in court of justice by which one party prosecutes another for enforcement or protection of a right, redress or prevention of a wrong, or punishment of a public of defense, as defined by Rev. Codes, 8 8079. Clark v. Oregon Short Line R. Co. \[Mont.\] 99 P 298. "Action" is pursuit of a right in a court of justice without regard to form of legal proceedings as word is used in Rev. Laws, c. 13, $ 32, conferring authority upon tax collector to maintain action. City of Boston v. Turner, 201 Mass. 190, 87 NE 634.
- 47. As used in practice act. Luddington v. Merrill \[Conn.\] 71 A 504.
- 48. As "Action" is nscd in the Code Cly. Proc. Queens County Water Co. v. O'Brien, 131 App. Div. 91, 115 NYPS 495. "Proceeding" is insufficient when used as substitute for "action" in demurrer on ground of an-other action pending, the word "Proceeding" not being known to the Code. though "special proceeding" is used and would imply a legal controversy. Queens County Water Co. v. O'Brien, 131 App. Div. 91, 115 NYPS 495.
- 49. jurisdiction of persons not being essential. Kean v. Rogers \[Iowa\] 118 NWW 515.
- 51. -

coupled with any reasonable condition which the law-making body may see fit to impose,\[61\] which conditions must be strictly performed.\[62\] Specific demand is not ordinarily a condition precedent to the commencement of an action,\[63\] especially where it appears that a demand would have been fruitless.\[64\] The necessity of demand as an element of particular rights and causes of action is treated in topics relating to such rights and causes.\[65\] Objection for failure to perform conditions precedent should be raised by demurrer or special plea.\[66\]

While an action should not be brought until the cause of action has accrued, and in some states prematurity is incurable,\[67\] and may be proved under a general denial,\[68\] it is now common practice in other states, when the cause has accrued at the time of trial, to permit plaintiff to try the case out on its merits,\[69\] though he is usually required to pay the costs up to the time of the accrual and to file a supplemental pleading,\[70\] and the filing of answer or general demurrer after supplemental pleadings, showing the accrual of the cause of action at the time of the trial, waives objection to the prematurity of the action.\[71\]

The statutes must ordinarily be looked to to determine whether an action is commenced by the filing of the complaint,\[72\] issance of process,\[73\] delivery thereof to the officer for service,\[74\] or the service itself.\[75\] In Iowa a new action may be instituted by the filing of a new petition before answer,74 and in Nebraska an action is deemed to be commenced by an appeal from the disallowance of claims by a county board,77 but not by filing a claim with the county clerk.78

Footnote 7: The number of claims in the table are $10^{10}$, $10^{11}$, $10^{12}$, $10^{13}$, $10^{14}$, $10^{15}$, $10^{16}$, $10^{17}$, $10^{18}$, $10^{19}

land of the person making the excavation, and provided the work be conducted without negligence.\[91\] It applies to the owner of land along a highway, and if he wrongfully excavate so close as to cause the highway to cave in he is liable for any damage caused thereby.\[92\] Owners of city property excavating below a certain depth are sometimes required by statute to protect adjoining walls,\[93\] without regard to the degree of care used.\[94\]

## 1 Introduction

The scope of this topic is noted below.\[95\]

- **1.**_Jurisdiction and Courts,_ **32.** \*\*2.

analogy, upon equitable principles,\* they have no general, equitable jurisdiction,\* and will not assume jurisdiction merely because of inadequacies incident to the common-law remedies.\* In the absence of treaty stipulations, it is within the discretion of the court of admiralty to refuse to take jurisdiction of a controversy between foreign seamen and foreign vessels.\* Admiralty will exercise its jurisdiction only so far as is necessary to determine the rights of the parties in admiralty,\* and in limitation of liability proceedings will restrain proceedings in state courts only so far as necessary to preserve its own jurisdiction and control of the proceedings before it,\* but, as between an admiralty court and a state court having concurrent jurisdiction, that court to which jurisdiction first attaches will hold the case \[10\] to the end,\[11\] and its action will ordinarily be conclusive on other courts.\[12\]

## 2 Remedies and remedial rights

See 11 C. L. 84. Where a state statute giving or creating a right gives also a lien therefor, such right may in a proper case, be enforced in admiralty by a libel in rem,\[14\] but where the statute creates no lien the remedy in admiralty is by libel in personam.\[16\] Such a right may, however, be enforced in limitation of liability proceedings, regardless of any question of lien.\[16\] A libel in rem will not lie for failure of a vessel to enter upon her charter.\[17\] The prosecution of a claim under a treaty, under which no such action lies, does not amount to an election of remedies.\[18\]

## 3 Practice and procedure

A. Pleading, process, interlocutory orders, (tc,See 11 C. L. 84. The libelant cannot excuse nonperformance of conditions of his contract by alleging impossibility of performance,\[20\] but may do so by alleging waiver and estoppel.\[21\] The greatest liberality is indulged in the matter of amendments in admiralty,\[22\] but it is within the discretion of the trial court to refuse to

title 10: Charles Barnes Co. v. One Dredge

- 94. Davenport v. Winnismiem Co. \[C. C. A.\]

- 162 F 862. No jurisdiction to determine equitable title or rights between partners making conflicting claims, though property claimed consisted of vessels employed in navigation of waters under federal jurisdiction. Hulings v. Jones, 63 W. Va. 696, 60 SE 874.

- 16. Vessel owner who has been held ilable at common law for damages resulting from colliston, and who has failed to bring in other vessel under New York practice, cannot resort to admiralty for contribution. The Ira M. Hedeges, 163 F 587.

- 17. Such jurisdiction will not ordinarily be taken unless necessary to prevent failure of justice. The Albani, 169 F 220.

- 18. Will not infringe on right of bank-rupty court to determine claims under bankrupty law though admiralty court first acquired jurisdiction. The William B. Klibbee, 164 F 658. Where petitioner's right to contest and limit liability has been decided in her favor on appeal, district court has jurisdiction only to determine whether claimant is entitled to recover and if so to what extent. The Tommy, 168 F 563.

- 19. Held Improper to restrain entry of judgment on verdict in state court for damages for injuries caused by colliston. Da-venport v. Winnismiem Co. \[C. C. A.\] 162 F 862.

## 4 Curr. L.- 3

### 4.1 Curr. L.- 3

- 10. Charles Barnes Co. v. One Dredge

- 169 F 895. Admiralty court rather than state court has jurisdiction over matter where there was prior action pending dealing potentially if not actually with same matter, as where libel before amendment by mistake fixed suit against float instead of against pumpbot. Id.

- 11. To exclusion of all other courts. The Ira M. Hedeges, 163 F 687.

- 12. Owner of vessel who has been held ilable in state court for damages occasion by collision cannot maintain action in admiralty for contribution, especially where he has failed to avail himself of remedies permitted in state court. The Ira M. Hedeges, 163 F 587.

- 13. Search Note: See Admiralty, Cent. Dig. **3** 265-340; Dec. Dig. **3** 265-39; 1 A. & E. Enc. P. \*\*& P. 249.

- 14. Action for death. The Aurora, 163 F 83.

- 15. Action for death. The Aurora, 163 F 83.

- 16. The Hamilton, 207 U. S. 398, 52 Law.

- 17. The Margaretha \[C. C. A.\] 167 F 794.

- 18. The Schoomer Two Cousins, 42 Ct. Cl.

- 19. Search Note: See Admiralty, Cent. Dig. **3** 349-562; Dec. Dig. **3** 40-72; 1 A. & E. Enc. P. \*\*& P. 261, 263, 276, 276.

- 20. Z1. Gans v. Auchnicelos, 168 F 460.

- 21. The Wildenfs \[C. C. A.\] 161 F 864.

- 22. The Wildenfs \[C. C. A.\] 161 F 864.

- 23. Defect of libel in that it did not sufficiently show excuse for nonperformance of cond allow an amendment introducing a new issue, after the close of the evidence and the beginning of the argument,\[23\] and so, also, is is within the discretion of the circuit court of appeals to refuse to allow such an amendment after the expiration of the time limit therefor fixed by the rules of the court.\[24\] Nor is it error for the trial court to refuse to allow the respondent to shift his ground of defense by amendment after the case has been argued and decided.\[25\] An amended libel relates back to the time of the filing of the original libel.\[26\]

All persons necessary to a complete adjustment of the controversy may come in by petition " or may be made parties to the original libel,\[26\] even though an independent libel would not lie against them,\[29\] and, where any creditor of the claim-ant desires to contest liens or claims asserted in a libel in rem, he should appear and make such contest.\[30\]

Service of process is sufficient if made on parties representing the owner.\[31\] A monition and order of attachment must be issued by a duly authorized officer,\[32\] and if not so issued the officer making the levy is not protected.\[33\]

Courts of admiralty, while having no general equitable jurisdiction,\[34\] generally proceed on equitable principles,\[35\] and in matters of practice their powers are as broad as those of equity,\[38\] but only matters connected with the subject of the libel can be litigated in one action.\[37\] Delay in bringing suit may be excused by the avoidance of the vessel liable.\[38\]

(SS 3) \_B. Evidence, proof, hearing, and decree.\[39\] See 11 C. L. "A court of admiralty has power to compel the production of documentary evidence\[40\] upon

tions of contract held cured by amendment

allenging waiver and estoppel. Gans v. Au-chincloss, 168 F 460.

23. Amendment changing action from ex deltitu to ex contractu. The Wildenfels \[C. C. A.\] 161 F 844.

01. Under admiralty rules of circuit court of appeals, motion for amendment introducing new issues should be made within fifteen days after filing of apostles. The Wildenfels \[C. C. A.\] 161 F 864.

01. After libel in personnam had been tried and decided as such, respondent sought to defend on ground that libel should have been in rem. The Beneliff \[C. C. A.\] 161 F 909.

01. Amendment correction description of vessel held to relate back so as to sustain priority of libel over intervening attachment in state court. Charles Barnes Co. v. One Dredge Boat, 169 F 895.

27, 28. Evans v. New York & P. S. S. Co., 163 F 405.

29. Under equity of fifty-ninth rule, a warehouseman liable over to original respondent was proper party. Evans v. New York & P. S. S. Co., 163 F 405.

01. Insurance company succeeding to libelant's rights by subrogation. The Ethel-wold, 165 F 806.

01. On party who represented owner in chartering to government and in prosecuting claim against it. United States v. Bed-ouin S. S. Co., 167 F 863.

01. Montion and order held void where name of clerk was signed and seal of court affixed thereto by person temporarily in charge of office, but who was neither a deputy nor even a de facto officer. Kerr v. Bryan \[C. C. A.\] 163 F 233.

01. Levering officer is trespasser. Ker v. Bryan \[C. C. A.\] 163 F 233.

01. See ante, $ 1, Jurisdiction of Courts.

01. Davenport v. Winnismmet Co. \[C. C. A.\] 162 F 862.

01. Amendment changing action from ex deltitu to ex contractu. The Wildenfels \[C. C. A.\] 161 F 864.

01. The Washtenaw, 163 F 372. Court of admiralty may by analogy assume powers of courts of equity and bankruptcy, and may thereby permit prosecution of action in state court to judgment notwithstanding limited liability proceedings in admiralty. Davenport v. Winnismmet Co. \[C. C. A.\] 162 F 862. Over process. The Planter, 163 F 667. The court has discretionary power to refuse to confirm a sale under its process. The Planter, 163 F 667. Sale will not be set aside at instance of persons who had chance to protect themselves, solely on ground of inadequacy of price or increased bid, where sale was otherwise regular. Id.

01. Under analogy to 59th rule. McCaldin Bros. Co. v. Donald S. S. Co., 169 F 993.

Through arising under same charter party.

Id. Respondent cannot in admiralty make defense of independent claim by way of set-our, and hence can not set off commis-sions earned under previous contract against freight and demurrage. Roney v. Chase, Talbot & Co., 160 F 268.

38. Libelants are not guilty of laches where they bring action in certain district and secure service upon one of two vessels claimed to be liable but refuse to go elsewhere to use other vessel and are forced to wait several years before, by exercise of diligence, they are able to seize other vessel in waters of district. The Little, 168 F 893.

01. Search Note: See Admiralty, Cent. Dig. $$ 563-708; Dec. Dig. $$ 73-101; 1 A. & E. Enc. P due application therefor," or by subpoena duces teeum,"2 but the production of such evidence will not ordinarily be required in advance of hearing.43 Refusal of a party to produce such evidence, however, may excuse the insufficiency of the other party's answer to interrogatories.44 The court will take judicial notice of state statutes upon sufficient preliminary allegations and proof,45 but will not take notice of the inspectors' rules,46 unless they appear in the record.47 The proof may cure faults in the pleadings to which no exceptions have been taken.46 Both parties should put on their entire proof before the case is submitted to the court for decision.49 The general rules as to the sufficiency of evidence apply as in other courts.50

An insurer by taking a decree in personam and by failing to contest the claims of intervening libelants waives its right to assert a lien.51

The apportionment of the costs by decree is ordinarily within the discretion of the court,52 but the costs of a contested petition for limitation of liability are usually taxed to the losing party.53 A docket fee is only recoverable by the libelant where the court has in some way passed upon the merits of the controversy.54 The court may on its own motion reopen an improper decree,55 and in this connection the term of the court is continuous.56 A commissioner is invested with full power of the court appointing him in respect to his duties,57 and when a matter is referred to him by agreement his report will not be reviewed by the court.56

\_4. Appeals and subsequent proceedings.58- See 11 C. L. 84--An appeal does not ordinarily lie from discretionary order of the court.56 Although a trial de novo is ordinarily had on appeal in admiralty from the district court to the circuit court of appeals,51 a finding of fact based on conflicting evidence will not be disturbed by the appellate court unless there is manifest error.52 The circuit court of ap- to insurers alone. The White Seal, 166 F 640.

41. Application for production of books to insurers alone. The White Seal, 166 F and papers should be made by affdavit, but may be supported by evidence. The Washington. 163 F 372.

01. At hearing before special commissioner. The Washtenaw, 163 F 372.

01. Claimant is not entitled to order on libelant for production of books and papers in advance of hearing before special commissioner. The Vashtenaw, 163 F 372.

01. Where claimant alleges imability to make further answer to libelants interrogatories without access to papers and documents in the latter's possession, and the latter refuses to produce such evidence, his exceptions to former's answers will not be sustained. The Washtenaw, 163 F 372.

01. Allerations and proof must be sufficient to raise issue in such regard. The Alligator et al., The Alligrupus et al., The Phoenix \[C. C. A.\] 161 F 37. Party desiring to have state statute applied has burden of proving that vessel belonged to such state. Fisher V. Boutele Transportation & Towing Co., 162 F 994.

01. The H. B. Rawson \[C. C. A.\] 162 F 312.

01. May consider them where they appear in record and are referred to in testimony and briefs, although not formally introduced in evidence. The H. B. Rawson \[C. C. A.\] 162 F 312.

01. Nash v. Bohlen, 167 F 427.

01. Bull v. New York & Porto Rico S. S. Co. \[C. C. A.\] 167 F 792.

01. Evidence held insufficient to show release of owners by surety on stipulation for release of vessel and agreement to look

01. Application for production of books to insurers alone. The White Seal, 166 F and papers should be made by affdavit, but

01.

may be supported by evidence. The Washtenaw, 163 F 372.

51. As against such libelants on fund detenaw, 163 F 372.

01. At hearing before special commissioner. The Washtenaw, 163 F 372.

01. The Indian \[C. C. A.\] 159 F 20; The

01. Claimant is not entitled to order on libelant for production of books and papers

01. Including proof's fees. The W. A. Sherman \[C. C. A.\] 167 F 976. Costs are

01. Where claimant alleges imability to make further answer to libelants interrogatories without access to papers and documents in the latter's possession, and the latter refuses to produce such evidence, his exceptions to former's answers will not be sustained. The Washtenaw, 163 F 372.

01. Allerations and proof must be sufficient to raise issue in such regard. The Alligator et al., The Alligrupus et al., The Phoenix \[C. C. A.\] 161 F 37. Party desiring to have state statute applied has burden of proving that vessel belonged to such state. Fisher V. Boutele Transportation & Towing Co., 162 F 994.

01. The H. B. Rawson \[C. C. A.\] 162 F 312.

01. May consider them where they appear in record and are referred to in testimony and briefs, although not formally introduced in evidence. The H. B. Rawson \[C. C. A.\] 162 F 312.

01. Nash v. Bohlen, 167 F 427.

01. Bull v. New York & Porto Rico S. S. Co. \[C. C. A.\] 16 peals on an appeal in admiralty will not sanction the common-law practice of sending cases back for a new trial,\[83\] and, hence, on a remand will give binding directions as to the decree to be entered,\[64\] and such decree may be more favorable to a party not appealing than was the original decree.\[65\]

**Admissions, see latest topical index.**

**ADOPTION OF CHILDREN.**

_The scope of this topic is noted below.\[66\]_

**8 1. Adoptive Acts and Proceedings, 36.**

**8 2, Consequences of Adoption, 37.**

**SS 1.**\_Adoptive acts and proceedings.\[67\]\_See 11 C. L. 38_The adoption of children was unknown to the common law, and exists in those states which have inherited that system of jurisprudence only by virtue of statute,\[84\] and the statutory mode is the measure of the power,\[68\] so that an adoption is void unless made in pursuance of the essential requirements;\[70\] and, if the adoption is not legally sufficient, equity will not grant relief,\[11\] but adoptive statutes, being deemed to be based upon a wise and benefetent purpose, are liberally construed,\[72\] and an adoption will not be declared void unless it affirmatively appear that some substantial irregularity exists.\[78\]

Jurisdiction of adoption proceedings is purely statutory,\[74\] and children ac-charter party is finding of fact. Bern Line | validity and effect of adoption, but under statute and by contract. Exeludes conflict of laws and right of child adopted in one state to inherit in another state (see Conflict of Laws\*);\[73\] of children (see Appendices *), the general rights and liabilities of infants (see Infants*), and the righths and liabilities of parents and persons standing in looc parents, and mutual rights of parent and child (see Parent and Child \*).

\*\*97.\*\*Search Note: See notes in 3 C. L. 46: 5 Id. 42; 11 Id. 35, 36; 12 L. R. A. (N. S.) 884; 39 A. S. R. 210.

See Adoption, Cent. Dig. **SS 1-28**; Dec. Dig. **SS 1-17**; 1 Cyc. 917-930, 936, 937; I. A. & E. Eine. L. (2ed.) 726.

\*\*68.\*\*Hillers V. Taylor, 108 Md. 148, 69 A 715; Appeal of Woodward \[Conn.\] 70 A 453. Adoption of children is governed exclusively by statute. Leonard v. Honlisager \[Ind. Appl. 88 N8 91.

\*\*89.\*\*Appeal of Woodward \[Conn.\] 70 A 453.

\*\*70.\*\*Appeal of Woodward \[Conn.\] 70 A 453. Adoption not acknowledged snd executed as required by statute is insufficient to confer heirship. Lamb's Ekate v. Morrow (Iowa) 117 Nw 1118. Where statute requires both husband and wife to join in petition, there is no adoption where wife does not join. Illinois Adoption Act. **SS 1**. Jones v. Bean, 135 Ill. App. 545. Where articles of adoption are insufficient to ac-complish the purpose, the adopted person does not become the her of foster parents. Lamb's Ekate v. Morrow \[Iowa\] 117 Nw 1118.

\*\*71.\*\*Lamb's Ekate v. Morrow \[Iowa\] 117 Nw 1118.

\*\*72.\*\*Boaz v. Swinney \[Kan.\] 99 P 621.

\*\*73.\*\*Simpson v. Simpson, 9 Ohio C. C. (N. S.) 177.

\*\*74.\*\*Under Laws 1896, p. 227, e. 272, county 13 Cur. Law. ADOPTION OF CHILDREN SS 2.

tually within the state may be given a status for the purpose of adoption.\[18\] In some states adoption proceedings partake more or less of adversary proceedings, involving questions of fact as to which either party may demand a jury.\[19\] Such proceedings are usually purely ex parte in character,\[17\] and the court is usually vested with a large discretion in the matter of adoption vel non,\[18\] the exercise of which is subject to review or attack only in the manner prescribed by statute,\[19\] and at the instance of those having a proper status for this purpose,\[20\] and an adoption is not necessarily involved because it might have been attacked successfully by one having such status.\[21\] Where the adoption is attacked for fraud, a wide latitude of investigation is indulged.\[22\]

The law does not countenance a bargain and sale, in the ordinary sense, of a child,\[23\] but, subject to considerations bearing upon the welfare of the child,\[24\] provision in often made by statute for the release of the care and custody of children to others.\[23\] A release of the care and custody of a child by contract to one who agrees and is able and qualified to raise it is deemed to be based upon a sufficient consideration,\[23\] and, when authorized by law, is as binding as any other contract.\[24\] The evidence of such a contract, however, must be clear and satisfactory,\[23\] and in this connection the purpose of the adoption may be considered.\[25\]

SS 2. \_Consequences of adoption.\[26\] See 11 C. L. \[27\]--One receiving a child by way of absolute gift becomes vested with the rights and powers of a parent and

judge and surrogate court have concurrent jurisdiction in matter of adoption. In re

Ward's Estate, 59 Misc. 328, 112 NYS 282.

SSI. Statutory notice was not given payments Appeal of Woodward \[Conn.\] 10 A amended by Act 1862, p. 153, c. 253. Appeal of Woodward \[Conn.\] 10 A.

- 70. Under Court and Practice Act 1905, c. 40, $ 79, relative to jury trial on appeal, from probate court to superior court, either party to appeal by next friend of minor in adoption proceedings was entitled to jury upon issue as to whether child had been neglected and desfected by parents for more than a year. Buckley v. Hammond \[R. I.\] 72 A. 389.
- 71. Leonard v. Honisfager \[Ind. App.\] 88 NE 91.
- 72. Leonard v. Honisfager \[Ind. App.\] 88 NE 91. Under Laws 1896, p. 227, c. 272, $ 63, providing that court shall allow or sanction adoption "if satisfied" that welfare of child will be promoted thereby, the court has a discretionary power in the premises. In re Ward's Estate, 59 Misc. 328, 112 NYS 282.
- 73. See Gen. Laws 1896, c. 192, $ 8, as amended by Court and Practice Act 1905, $ 1789-799, 1135. Buckley v. Hammond \[R. I.\] 72 A. 389, Under Laws 1896, p. 227, c. 272, granting county judge and surrogate court concurrent jurisdiction in matter of adoption, neither of such courts can review the orders of the other. In re Ward's Estate, 59 Misc. 328, 112 NYS 282.
- 80. If child have parents living, they alone can interpose objection to order of adoption. Leonard v. Honisfager \[Ind. App.\] 88 NE 91. Where guardian is given no right to interfere with court's discretionary power in adoption proceedings, court will read no such right into statute. Id. There is no authority under Laws 1896, p. 227, c. 272, for direct attack by next of kin of decedent upon order sanctioning an adoption by him, and a portion collateral subject to a parent's liabilities,91 and this status continues until destroyed according to law,92 but the relation of parent and child, between the child and its natural parent, is not by adoption terminated for all purposes,93 and the natural father cannot recover for the support of his child against a foster parent.94 On the other hand an adopted child cannot recover for services rendered his foster parent.95 Changes in the law of inheritance, which may be made by any law of of adoption, should not be extended by construction,96 and should be restricted to apply between the parties to the adoptive proceedings only, unless a contrary purpose is clearly expressed.97 A provision is an adoption agreement that the foster parent will give to the adopted child a reasonable portion of his property, such as he would if he were the actual father of such child, will not prevent such parent from disposing of his property by will in such manner as he may deem proper and reasonable.98

Footnote 9: Always bcgin with the latest article on the subject. Use the latest topical index.

## 11 **Legislation and Regulation, 38**

8. **Frosecutions and Penalties, 39**

1. **The Offense, 30**

1. **Legislation and regulation.1--See 11 C. L. 88--Statutes establishing standards of purity must, of course, conform to constitutional limitations,2 but the determination of such standards may be delegated to administrative officers,3 and it seems that such determination, when made, is conclusive,4 but even if it is not conclusive, one challenging it cannot complain of its submission to a jury for re-determination.5 Where a municipality has authority to establish standards of purity,6 its ordinances in such regard will not be declared invalid for uncertainty**

Footnote 9: Always bcgin with the latest article on the subject. Use the latest topical index.

Dec. Dlg. \**SS 18-25; 1 Cyc. 930-935; 1 A. & and matters relating to interstate commerce (see Commerce *).**

1. **Eaves v. Fears \[Ga.\] 64 SE 269.**

1. **One who has once legally made an adoption cannot shake off relation by a change of domicile. Appeal of Woodward \[Conn.\] 17 A 48. See Conflict of Laws, 11 C. L. 665.**

93, 94, 95, McNemar v. McNemar. 137 III.\*\*

96. **Bozz v. Swinney \[Kan.\] 99 P 621.**

01. **Child adopted under Illinois statute (Laws 1867, to 138) would not inherit from foster parents' deceased brother. Boas v. Swinney \[Kan.\] 99 P 621.**

01. **Will cutting off plain, who had been adopted by testaar pursuant to such an agreement with sum of $1.00, and be-questing balance or estate. $8,000, to his sister, who had been adopted at same time, sustained, in view of fact that plaintiff upon attaining his majority had left dece-dent some time before his death, while plaintiff's sister had remained with dece-dent, she, moreover, being feeble minded and less able to take care of herself than was plaintiff. Dopmann v. Dopmann, 117 NYS 620.**

01. \*\*Indices validity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**

01. **Cur. Law.**

01. \*\*Ludders vildity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**

01. **Lus**

01. \*\*Ludders vildity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**

01. \*\*Ludders vildity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**

01. \*\*Ludders vildity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**

01. \*\*Ludders vildity and enforcement of regulations designed to prevent adultera- tion of foods. drhks and drugs. Excludes regulations other than those strictly against adulteration (see Food;" Health;" Medicine and Surgery *), taxation of adulterated articles (see Internal Revenue Laws;" Taxes *),**
    where their meaning is plain," and where they are attacked as unreasonable the allegations to such effect must be clear and unequivocal." Where the authority of the municipality is subject to the limitation that the municipal regulations must not be in conflict with state laws, it is held that an ordinance is not inconsistent with the state law merely because it adds additional requirements" or because it imposes penalties different from those imposed by the state law,10 but there is some conflict as to whether the standard fixed by the ordinance must conform to that fixed by the statute.11

**SS 2.**\_The offense.12--See 11 C. L. 88--Aside from the pure food laws,13 the manufacture and sale of certain adulterated articles is prohibited,14 and in this connection a label showing the true ingredients is sometimes required.13 Usually the intent of the defendant is immaterial.16

**SS 3.**_Prosecutions and penalties.17--See 11 C. L. 88--The state board of pharmacy of New York cannot sue for the penalties imposed for the sale of adulterated food.18_

ard of purity of dairy products. City of 14; Dec. Dig. SSS 4-6; 1 A. & E. Enc. L. (2ed.) St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 516.

**13.** Offense, under Comp. St. $ 5007, of manufacturing fixing milk standard as "Total milk solids, 12.5 per century by weight, butter fat 3.5 per century by weight, water 87.5 per century by weight," held to mean that of the 12.5 per century of "Offense. Pierre Vilaus Maple Co. v. Daliry & milk solids, 3.5 per century must be butter fat, and not to require 103.5 total constituals, and hence that ordinance was not invalid for uncertainty. Ex parte Hoffman \[Cal.\] 99 P 517.

**8.** Allgating that standard fixed for milk exceeded the natural product of certain kinds of cows, and that milk sold by party charged with violating ordinance might have come from such kind of cows, held 1893, p 680, c 3383 $ 20, is milk containing insufficient to raise issue of reasonableness of standard. Ex parte Hoffman \[Cal.\] 99 P 517.

**9.** City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 516.

**10.** Ex parte Hoffman \[Cal.\] 99 P 517.

**11.** Ordinance prohibiting any foreign substance in milk held inconsistent with statute prohibiting such foreign substances only as are injurious to health. City of St. Louis v. Wortman, 213 Mo. 131, 112 SWV 520; City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 516. Fact that statute impliedly repealed provision of ordinance establishing higher standard of purity for certain product did not effect repeal of other provisions of ordinance establishing lower standard for other products. Id. Ordinance fixing higher standard than that fixed by statute held void. In re Desanta, 8 Cal. App. 295, 96 P 1027. Ordinance fixing higher standard than that fixed by statute held valid. Ex parte Hoffman \[Cal.\] 99 P 517.

**Note:** The case of City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 516, holds that fixing of lower standard by ordinance creates no inconsistency and this doctrine is supported to a certain extent by m re Desanta, 8 Cal. App. 295, 96 P 1027. On the other hand it is strongly intimated in Ex parte Hoffman \[Cal.\] 99 P 517, that the fixing of a lower standard by the ordinance would create inconsistency. \[Ed.\]

**12.** Search Note:\*\* See note in 5 C. L. 44.

See, also, adulteration, Cent. Dig. $ 4-4.

## 13 Cur. Law.

### Adultery.

_The scope of this topic is noted below.\[19\]_

$ 1. The Offense, 40.

$ 2. The Indictment or Information, 40.

$ 3. Evidence, 41.

$ 4. Practice and Trial, 41.

$ 1. The offense.\[20\] See 11 C. L. 39.-Adultery, as distinguished from fornication, is predicated upon the marriage of one or both of the parties to the act of intercourse.\[21\] As distinguished from rape it is predicated upon the consent of the parties to the act,\[22\] and is not an offense against the person so consenting.\[23\] As a general rule, the offense of adultery cannot be predicated upon a bigamous marriage, entered into innocently.\[24\]

$ 2. The indictment or information.\[25\] See 11 C. L. 39.-The indictment should fully and plainly describe the offense,\[20\] but it is usually sufficient to charge the offense as defined by the statute.\[27\] On the other hand, the statute need not be followed literally.\[28\] Under the North Dakota statute the spouse of either of the guilty parties is empowered to make complaint against either or both of them.\[29\]

Imposed by $ 41 and defined by Agricultural Law (Laws 1893, p. 655, c. 338, $ 164, and Laws 1903, p. 1191, c. 524). State Board of grounds believing her to be unmarried. Primary V. Gassau, 195 N. Y., 197, 85 NE 65.

Right of board is limited to penalties acerning under Public Health Law (Laws 1893, p. 1562, c. 661, art. 11) as to pharmacy.

$ 19. Includes only the criminal offense of adultery. Excludes adultery as ground for divorce (see Divore \*), fornication (see Formication \*), rape (see Rape *), and matters common to all crimes (see Criminal Law.* Indictment and Prosection \*).

20. Search Note: See notes in 3 C. L. 49; 11 Id. 39; 48 L. R. 482; 68 Id. 44; 3 Z. L. R. A. (N. S.) 1186; 113 A. S. R. 271.

See, also, Adultery, Cent. Dig. 1-9; Dec. Dig. 1-4; 1 A. & E, Enc. L. (240) 747.

21. Sexual intercourse between two per-sons not husband and wife, either one or both of whom are married, is adultery in some states. State v. Anderson \[Iowa\] 118 NWV 712. When act is committed between married man and woman who is unmarried, the man shall be deemed guilty of adultery.

Act March 3, 1887, c. 397, $ 3, 24 Stat. 635.

(U. S. Comp. St. 1901, p. 3638). United States v. Meyers \[N. M.\] 99 P 336, Sex-ual intercourse of married man with woman other than his wife, whether married or minfle constitutes the offense, under Kansas statute. Bashford v. Wells \[Kan.\] 98 P 663. Under Georgia statute both parties must be married. Zackery v. State \[Ga. App.\] 64 SE 281.

22. Construction of adultery cannot be sustained where it appears that female with whom alleged sexual intercourse is charged did not consent thereto, and where act appears to have been against her will. Crime necessarily involves Ideas of consent. Nephew v. State, 6 Ga. App. 841, 63 SE 330.

While consent in some instances may be procured by force to a certain degree, where force is used in inception of offense it must at least be shown that consent was finally induced thereby. Id.

23. Not felony against or upon married woman consenting to act so as to justify her husband in assaulting or killing other man to prevent commission of the act.

State v. Young \[Or.\] 96 P 1067.

4. "Always begin with the latest article on the subject. Use the latest topical index.

13 Cur. Law. ADULTERY SS 4. SS 3. _Evidence._\[80\] See 11 C. L. 40. The state has the burden of proving every essential element of the offense \[81\] beyond a reasonable doubt,\[82\] and where the defendant produces a certificate of marriage with the woman named in the indictment, the state must prove prior marriage to some other woman.\[83\] What facts will or will not constitute proof of adultery cannot be laid down,\[84\] but circumstantial evidence, including evidence of previous relations between the parties,\[33\] is admissible to prove an adulterous mind,\[85\] and even the offense itself.\[87\] Good character may be shown in defense,\[88\] and of itself may be sufficient to generate a reasonable doubt of guilt.\[88\] The woman is an accomplice within the rule requiring corroboration.\[40\] Under the general disability of the common law, a wife is not, competent to testify against her husband on a prosecution for adultery.\[41\] This disability has been perpetuated by statute in some states,\[42\] and removed in others,\[43\]

SS 4. _Practice and trial._\[44\] See 11 C. L. 40. Where the statute creates distinct of-fenses with relation to the manner in which the offense is committed, the court should, by proper instruction, confine the issue to the offense charged.\[45\] Where

bed and cohabit together," an Indictment \[Or.\] 99 P 417. Jury must consider charging that defendants, a man and a \[the conduct of the parties, their opporvroman, not being married to each other, utilities for commission of act, and all of circumstances of case, and then determine whether it should convince an unprejudial-N. C. $11, $3 SE 1056. 28. Under Rev. Code, 1905, $ 8903, It is \[Wheres v. Taylor, 108 M.d. 148, 69 A T15. proper for wife to make complaint against \[Wheres commission of adultery is sought to woman who had adulterous relations with her husband. State v. Wesie \[N. D.\] 118\]

Search Note: See Auditory, Cent. Dmg. 38. When evidence warrants it, court may properly state to jury the weight that they would be authorized to give to proof of good character. Webb v. State \[Ga. App.\] 64 SE 1#01.

in Georgia, marriage of both is necessary to offense. Zackery v. State \[Ga. App.\] 64 SE 1#01.

## 31 Evidence of female that unsigned letters

from with unmarried woman at nine \[e\]clock at night, lamp turned low, both with shoes off, door closed, bed somewhat rumpled, and pillow indicated and warm. was not sufficient proof of the offense, in absence of any showing of evil repute of the house or the woman. Lang v. State, $ Ga. App.\] 176, 62 SE 711. Evidence held in-sufficient to support verdict. Thompson v. State, $ Ga. App.\] 64 SE 571. Bisques v. State \[Tex. Cr. App.\] 119 SW 861. Evidence held sufficient to sustain conviction. Mappy v. State, $4 Tex. Cr. App.\] 449, 114 SW 378. 38. Mere fact of defendant's prior limited \[e\]obitation with other woman and passing her off as his wife held insufficient to authorize direction of verdict of guilty, though under Pennsylvania law no ceremonial is necessary to constitute marriage defendant having testified that he had never contracted to marry such other woman. Commonwealth v. Gamble, $6 Pa. Super. Ct. 146. See Marriage, 12 C. L. 659. 34. Hillers v. Taylor, 108 M.d. 148, 69 A T15. 35. Illicit relation of parties during period of eight years next preceding the action may be proved, though female was in hospital for a year during such period, such separation not being sufficient to constitute a cessation of the improper relations. State v. Brown \[Iowa\] 121 NPV 513. 38. State v. Lamora \[Or.\] 99 P 417. 37. Positive evidence of the commission of adultery is rarely possible. State v. Lan the offense consists in habitual intercourse, it is not misleading to instruct that proof of a single offense is insufficient to warrant conviction.46 As in other criminal cases, the court is seldom authorized to give binding instructions to return a verdict of guilty.47 In Texas, when one of the parties is acquitted on a separate trial after the conviction of the other, the latter is entitled to a new trial in order to secure the testimony of the former.48

Footnote 47: Always begin with the latest article on the subject. Use the latest topical Index.

Advancements, see latest topical index.

## 11 1. Estimates and Property Subject to Ad-

- \**8. Color of Title, 54.*
- \**9. Payment of Taxes, 56.*
- \**10. Area of Possession, 57.*
- \**11. Sufficiency of Possession, 50.*
- \**12. Pleading, Evidence, and Instruction, 61.*
- \**13. Nature of Title Acquired, 65.*
  as to lands devoted to public uses \[97\] such as railroad rights of way,\[98\] school lands,\[99\] and highways or streets,\[60\] though both public and private rights of way may be lost by abandonment and estoppel,\[61\] An owner cannot be barred while he has no right to possession \[92\] or capacity to sue,\[63\] or where for any other reason he is pre-

ing that certain certificates issued under acts of congress by register of land office

acquired by adverse possession as against shall vest legal title in holder, held not In-state. Kinney v. Munch \[Minn.\] 120 NW tended to benefit one claiming adversely to 374. Ball. Ann. Codes & St. $4807 (Pierce's holder or to patentee. Id. Could not give such person title by adverse possession

ble to state, does not authorize acquisition

slice it would defeat title of United States.

Id. Portion of time while land belongs to

United States cannot be counted in ascer-

1115.

taining existence of public road by prescription. Lund v. Wilcox, $4 Utah, 206, 97

p 33. Since an entryman on public land cannot put statute of limitations in motion

Taylor v. Austin \[Neb.\] 119 NW 1123. Obagian government, one contesting for government land can gain no advantage

over his adversary because of statute of limitations while contest is pending. Dela-

cey v. Commercial Trust Co., 61 Wash. $42, 99 P $74.

S7, Where public rights has once attached by sufficient acceptance of dedication

of a town plat, it is not subject to divest-

\[Ark.\] 115 SW7 375. Clause "after an order

ture by strict application of rules pertaining to adverse possession or laches obtain-

punish for its continuance" and not to pre-

ing in controversies between individual

owners or claimants. McCleenhan V. Jessup

\[Iowa\] 120 NW 74. Limitations held to run

as to surplus and private land belonging to

a county and never used for or dedicated

to public purposes. Hardin County v. Nons

Mills Co. \[Tex. Civ. App.\] 112 SW7 $22.

Lands held by board of education for sale

1897, art. 33511 title to read or street can-

may be adversely held. Pioneer Investment & Trust Co. v. Board of Education

\[Utah\] 99 P 150.

58, Railway right of way, public property

under statute, is not subject to adverse

possession. Powell v. Atchison, etc., R. Co.,

215 Mo. 339, 114 SWV 1067. No part of railroad right of way over public lands

rand by congress can be alienated without

its consent nor lost by laches or acquiescence, and private persons encroaching

thereon can acquire no rights by lapse of

time. Klindred v. Union Pac. R. Co. \[C. C. A.\] 168 F 648. Right of way granted by

Congress to Union Pacific Railway Company

by Act July 1, 1862, held not subject to ad-

verse possession being regarded as public

highway and essential to performance of

company's public duties. Union Pac. R. Co.

v. Karges, 169 F 469. Property taken by a railway for public use cannot be taken by

adverse possession save by appropriation

inconsistent with such use when needed.

Chicago, etc., R. Co. v. Hanken \[Iowa\] 118 NW

NW 527. Doctrine applies as well to railroad depot grounds when actually occupied

or condem as to railroad right of way.

Id. But doctrine should not be applied to

dept grounds neither actually occupied

nor needed, though dedicated, for depot

purposes. Id. Statute operates against

rallyroad corporations whose lands are held

adversely, and this applies to right of way.

St. Louis & S. F. R. Co. v. Ruttan \[Ark.\] 118 SW7 705. Question is simply whether or

not possession is adverse to notice of company actually or by, necessary implication.

Id.

###### Acknowledgements.

This work was supported by the National Science Foundation under grant agreement No. 11112/11/ * 44ADVERSE POSSESSION SS 3.13Cur. Law.

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  law, such oceupancy raised the presumption of a grant,78 but the subject of adverse possession is now governed largely by the statutes of the various states,76 some of which are held to entirely supersede the common law.77 It follows that the essen tials of such possession vary in the different jurisdictions,\[78\] but it is generally held that the occupancy must be actual,\[79\] open,\[80\] adverse,\[81\] and under claims of right or title,\[82\] peaceable\[83\] and continuous \[84\] for the statutory period.\[85\] Other elepersion in Wisconsin is embodied in the | land v. Nance \[Tex. 114 SW 346. Encreach-written law. Illinois Steel Co. v. Budzisz \[Vivis.\] 121 NWV 362. Title to land can be acquired by adverse possession or prescription only as provided by Comp. Laws 1907, $ 2866, and not as at common law. Rio Grande Western R. Co. v. Salt Lake Inv. Co. \[Utah\] 101 P 586.

78. There must be open, notorious, peaceable, continuous and adverse possession for more than seven years. Jeffery v. Jeffery \[Ark.\] 118 SV 27. Adverse possession under $ 1721, Gen. St. 1906, must be actual, continuous and adverse for full statutory period of seven years. Dallam v. Sanchez \[Fla.\] 47 S 871. Possession must be hostile or adverse, actual, visible, notorious and exclusive, continuous, and under claim or color of title. Stewart v. Andrews, 239 Ill. 186, 87 NE 864. Actual, adverse, open, and continuous possession for 15 years essential. Hillman Land & Iren Co. v. Marshall \[KJ.\] 119 SW 180. Possession must be under color taken by grante or agent and held and claimed continuously to boundaries of deed without interruption for seven years. Haddock v. Leray, 148 N. C. $76, 62 SE 426. Prescriptive right to or ever reality can be acquired only by continuous adverse user for 20 years. Lund v. Wilcox, 34 Utah. 205, 97 P 38. There must be actual, visible, notorious, distinct and hostile possession with cultivation use or enjoyment for statutory period. Hess v. Webb \[Tex. Civ. App.\] 113 SW 618. To defeat title and constructive possession under senior patent, junior patente must prove actual, adverse, and continuous possession within lap of patents for 15 years before suit. Brown v. Wallace \[EYv.\] 116 SW 763.

01. Actual possession means the corporeal deduction of the property. Wallace v. Sachc, 106 Mimn. 125, 118 NWV 360. Evidence held to show constructive, not actual, possession of lap of patents. Brown v. Wul-lace \[KJ.\] 116 SW 763. Under Rev. St. 1895, art. 3349, defining adverse possession as actual and visible possession, etc., one claiming under junior title overlapping older survey must show actual and visible appropriretion of at least part of junior survey. Lake v. Earnest \[Tex. Civ. App.\] 116 SW 865. Evidence insufficient. Id. Exuses for nonoccupancy cannot be accepted as equivalent of occupancy. Dunn v. Taylor \[Tex.\] 113 SW 265. Necessity of continuous use held not affected by difficulty of procuring tenants, since conditions prescribed by law must be performed. Id.

01. City's possession of land for a swer held so open that knowledge thereof would be Imputed to owner and successors in title. Alderman v. New Haven \[Conn.\] 70 A 626. Continued occupation and payment of taxes for 40 years held notice of adverse claim. Lake Shore & M. E. R. Co. v. Johnson \[Mich.\] 16 Det. Leg. N. 270, 121 NWV 267. While recorded deed is notice of character and extent of claim of one in actual possession of portion of the tract. record is not notice in absence of possession. Hol- * 13 Cur. Law. ADVERSE POSSESSION SS 5.

- 147ments are sometimes required, such as good faith,89 color of title,88 or payment of taxes.89
- 15 _Hostility.80_ See 11 C. L. 45_The possession must be hostile and inconsistent with the rights of the owner,90 and under some statutes a declaration of ad-

verse claim of right. Ryle v. Davidson \[Tex. Civ. App.\] 116 SWF 823. Claim withth-

that title or possession is insufficient. Hillman Land & Iron Co. v. Marshall \[Ky.\] 119 SEV 180.

83. WThere person in possession commenced suit to quiet title before expiration of statutory period, and conveyed to one having notice of pendency of the suit, possession was not peaceable and undisputed so as to give title. In re Richard's Estate, 164 Cal. 478, 98 F 258. Presence of survey-

ors on and near inclosed and occupied premises held not to conclusively establish

dissetin of adverse occupant. Illinois

Steel Co. v. Paczocha \[TWis.\] 119 NWV 550.

84. See post, SS 6.

01. See post, SS 6, 7.

01. Absence of good faith in purchasing land belonging to minor heirs held to pre-

clude prescriptive title. Gary v. Landry,

122 La. 29, 47 S 124. Title cannot be acquired by occupancy of one who has neither

color of title nor claim of right made in

good faith. Ramsey v. Wilson \[Vwash.\] 100

Where prima facle claim to water is shown

P 171. Claim of right presumed in good

'faith till contrary shown. McBride v. Cald-

outesting such claim is fully carried by

well \[Iowa\] 119 NWV 741. Claim under color

proof that within statutory period short-

of deed from heirs held in good faith,

also in supply below adverse claim did

though grantee knew of an heir who did

not substantially prejudce interests of

not join in deed, he believing such heir by

other appropriators from same source.

reason of advancements had no further interest in estate. Id. Bona fide claimant

were held adverse so as to give title where

need not believe his claim to be good or

valid or think his claim good in its inception

to provide claim does not involve fraud

or breach of trust. State v. West Branch

Lumber Co. \[Wv.\] 63 SE 372. Where

purchaser of bank shares knew shares were

acquired during marriage and that wife

was dead, he was bound to know property

belonged to community and was owned

jointly by surviving husband and wife's

minor heir. Leury v. Mayer, 122 La. 486,

47 S 839. Error or mistake of law immaterial. Id.

;

87. See post, SS 8.

01. See post, SS 9.

01. Search Note: See notes in 5 C. L. 51;

7 Id. 45; 11 Id. 46; 24 A. S. R. 388.

See, also, Adverse Possession, Cent. Dig.

;

88 279-386, 488-503, 656, 660, 668; De. Dig.

;

89 58-67, 85; 1 Cyc. 1026-1082, 1147-1149;

;

1 A. & E. Enc. L (ed.) 796.

;

90. Onmodt v. Chicago, etc., R. Co., 106

Minn. 205, 118 NWV 798. The intention with which possession is taken or held is a ma-

terial factor in determining whether it is

adverse and there must be an intention to

claim title as owner, in derogation of the

rights of the true owner. Kirby v. Kirby,

236 Ill. 255, 58 NE 259. To be adverse, possession must operate to disselse or out

some other person of his possession or

right of possession. Lecroix v. Malone

\[Ala.\] 47 S 725. Possession accompanied by

usual acts of ownership is presumed ad-

verse until shown to be subserivent to title

of another. Criswell v. Noble, 61 Misc. 483,

and unfenced parts of right of way of

;

113 NWV 954. When physical possession has existed for statutory period, law supplies hostility and adverse intention sub-

,

ject only to qualification that possession was not in fact derivative from and subor-

dilate to true title. Illinois Steel Co. v.

Paczocha \[TWis.\] 119 NWV 550. Actual, open,

notorious and exclusive possession for 20

having notice of pendency of the suit, pos-

years reasonably sufficient to attract attention of owner as to invasion of his rights

so as to give title. In re Richard's Estate,

held "adverse." Id. In absence of ev-

dence expressed or impliedly evincing hostility or

the possession, presumption is that posses-

sign is in subordination to legal title.

Lecroix v. Malone \[Ala.\] 47 S 725. Hostility

may be inferred from machine of permanent improvement or other acts indicating

claim of ownership. Pioneer Investment

& Trust Co. v. Salt Lake City Board of

& verse holding must be filed."11 A possession which is either merely permissive "8 or otherwise subordinate to the true title "8 such as possession under a lease,"94

scrbegasinst the wife under * void deed | against him. Chatham v. Lansford, 149 N. of bargain and sale from her. Carpenter | C. 363, 63 SE 81. Entry presumed under v. Eokker, 131 Ga. 546, 62 SE 983. One entitled to homestead and dower in his wife's | descendant to show hostile character of land and whose children were owners of |cec, and consequently was entitled to re- |cec, |dance insuffleent. Id. Evidence held snu- |cequivocal character to obtain title by adverse peasession. Kirby v. KIrby, 236 |c. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 112, 119 NUV 1081. |Dept. Legs. N. 114, 1154, one |cialing adversely without color of title |cec, |

## 13 Cur. Law. ADVERSE possession $ 5.

mortgage," contract of sale," or other agreement," is not adverse. A possession commenced in subordination of the true title is presumed to continue subsertient " and does not become hostile until notice to the owner by unequivocal act."

no title by prescription though claiming to | absence of repudiation of his title. Tipton own the boom, there having been no claim of ownership of fee to bed of stream. Id. Where one takes possession of land in conway held broken where claimant for part of period held servent estate as tenant of owner, his possession is not adverse without notice to the owner (Robinson v. Huff-owner, his possession and user being that of landiord and could not be adverse. |sasaman v. Collins \[Tex. Civ. App.\] 115 SWP 337. Evidence insufficient to show possession was hostile, occupant holding under lease. Jones v. California & O. Land Co. \[Or.\] 97 P 625. Where lease for 699 years, excepting and reserving minerals with right to mine without liability for injury to surface, was duly recorded, person taking adverse possession of surface thereafter and continuing same for 21 years acquired title of estate for years only, and hence had no right, as owner, to surface support against lessor who had right to mine, to ensure of lease being insufficient to start statute against owner in absence of forelure of lease. St. Vincent's Roman Catholle Congregation v. Kingston Coal Co., 221 Pa. 349, 70 A 838. Possession held adverse not to lease, but to lease, though latter did not take possession, recording being equivalent to entry into possession so as to vest lesse with estate for years. Id. One asserting title by adverse possession thereby disclaims holding as tenant or license. Cluvera v. Torlina \[N. M.\] 99 P 690. Good faith not being an essential element of sd-verse possession under St. 1898, 1 421, declaring that one who takes possession under a written instrument exclusive of any other right, shall be an adverse possession, a purchase from a tenant without notice of the tenancy, who takes and re-claims in possession for 10 years as exclusivity owner acquires title despite $ 4216, providing that whenever the relation of landiord and tenant shall have existed ten-ANT's possession shall be deemed landiord's until 10 years after tenancy. Illinois Steel etc., R. Co., 106 Minn. 205, 118 NWP 795. Acts 184, 9. 670, 502 (Code Pub. Gen. Laws 1904, art. 53, 8 26), barring a landiord's claim to ground rents or reversion on fail-ure to make demand for such rents for 20 years held not only to bar the rent but also to extinguish the reversionary inter-est and cast on tenant fee simple title. Safe Depposit & Trust Co., M. Marburg \[Ma.\] 72 A 839. Act constitutional. Id. For further disession of adverse possession of tenant against landiord, see 12 L. R. A. (N. S.) 1148, and post, this section, on subject of renunciation and repudiation of sub-servience to owner. See, also, note, 11 C. L. 46.

## 14 Vertices. L - 4

In this section, we will discuss the implications of the proposed methodology for the use of the
If a grantor of lapd continues in possession, he holds either as trustee or tenant of the grantee' and only an explicit disclaimer of such relation and notorious assertion of right in himself will suffice to render his possession adverse to the grantee;' but a grantor by warranty deed is not estopped from thereafter acquiring title by adverse possession under a deed from a third person.8 While a mortgapor's retention of possession after foreclosure is usually as quasi tenant of the purchaser and not adverse until some affirmative claim is made by him untagonistic to the purchaser,4 his possession may be adverse if the mortgapor claims title in himself openly and notoriously.6 The possession of a tenant in common is not adverse to cotenants until ouster.4 The statute is not started by the mere accrual of an equitable demand ' though in case of disavowal and renunciation of a trust respecting reality, title by adverse possession may be acquired if the renunciation is accompanied or followed by possession for the statutory period.'

That a possession is taken by mistake will not prevent it from being adverse provided the possessor claims the land as his own ' and who under mistake as to the true boundary takes possession to a certain line and claims it as his own may acquire title,10 but not one who claims only to the true line wherever it may be.11 A mistaken recognition of title in the state is not fatal.12 Ignorance of one's rights in lands adversely held does not prevent the ripening of title in the holder if the means of acquiring knowledge are at hand.16

valid deep but only right to dower. Neal v. (one claims only to the line but makee noe Davis \[Or.\] 99 P 69. Limitations held to claim as to location of line, was inaprun against heirs from time of entry. Id.plicable. In re City of Seattle \[Wash.\] 100 Rehearing denied. Neal v. Davis \[Or.\] 101 P 1013. P 212. The commencement and pendency **11**. See, also, Boundaries, 11 C. L. 427. of an action to quiet title against J. D. W. Landowwer building a fence knowing it ie if living, and if dead then against his un- not the true line, but intending when true known heirs, was not such notice to the line 1e established to conform to it, does not hold adversely as to land beyond true ants of the plaintiff, but had no actual noe- line. Carroll V. Rabberman, 240 Ill. 450, 88 ice of such action, that the plaintiff NLB 985. Where adjoining landowners supclaimed adversively to their interest in the (only to the true line, they are not bound run against their interest in the land. Willson v. Wilson, 11 Ohio C. C. (N. S) 450. 7. Limitations will not run against a ces- tui que trust in case of breach of trust unless demand can be sued on In court of law. Depue v. Miller \[Vv. Va.\] 64 SE 740. 8. Depue v. Miller \[Vv. Va.\] 64 SE 740. 9. Wrongful intent to dissies true owner is not essential to render possession adverse. Searles v. De Ladson \[Conn.\] 70 A 569. Where one enters and takes possession of land as hts own and performs acts of ownership, his possession is adverse and a dissielin, it being immaterial that he was mistaken and would not have entered had he known the facts. Id.
10\. Where coterminous propritorts agree upon a dividing line and jointly construct a fence thereon followed by occupancy by both up to the fence, possessions are ad- versus each to the other. Walker v. Whyman \[Ala.\] 47 S 1011. But where a dividing fence is run beyond true line whether by inadvertance, ignorance or mere convenience and without intention to claim up to trivate property. Hoencke v. Lomax \[Tex. it as the dividing line, possesson is not adverse possession for ten years against adjoining owner held and asserted possess- (at the United States and seeking in tabular line, his possession was adverse The hostility must continue during the entire statutory period,14 and any recognition of title in the owner is fatal;16 but, if the occupant thereafter sets up a new claim of title on a new foundation, his holding may again become adverse.16 A title which has fully ripened is not effected by subsequent recognition of rights in the prior owner.17

Footnote 16: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under the cooperative agreement with the National Science Foundation.

SS 6. \_Continuity_18--See 11 C. L. 48 of possession for the full statutory period is essential.19 An adverse possession already commenced is not interrupted by death 20

after discovering mistake, he continued in 30's acceptance of deceds under which he hostile possession for statutory period. 30's \[Wash.\] (or 30's \[Wash.

13 Cur. Law. ADVERSE POSSESSION SS 6.

or coverture \[21\] of the owner. A landlord's possession is not interrupted by removal of his tenant if within a reasonable time the landlord reenters or places another tenant in possession \[22\]. The court will not assume that admitted breaks in the continuity of possession by successive occupants were of such short duration as to be immaterial \[38\].

_Tacking._\[50e 11 C. L. 48\]--Where claimant relies on the possessions of successive occupants, he must show that the occupancy was continuous \[24\]. Privity is a condition precedent to the tacking of possessions \[25\]. Privity between successive occupants has relation merely to physical possession independently of any claim of title or attempted transfer thereof \[26\], the only qualification to the possession being that it must be such as to exclude the true owner \[27\]. Privity exists between an occupant and members of his family continuing to occupy after his death \[28\], and a life tenant's possession may be tacked to his grantor's for the benefit of remaindermen \[29\]. Constructive and actual possessions may be tacked in proper cases \[50\]. A permissive pos-Armstrong v. Wilcox \[Fla.\] 49 S 41. See, also, Real Property, 12 C. L. 1623; Limita- tions of Actions, 12 C. L. 609. Adverse possession of husband's community interest be-gun in 1878, held to continue to run under. If possible, the benefit of remaindermen \[29\] is a 20 years, irrespective of Hoencke v. Lomax \[Tex. Civ. App.\] 118 SWV 550. Possession and voluntary transfer thereof are physical facts prevable by eye or ear witnesses or any other evidentialry fact or conduct. Id.

fected by his death. Appl v. Childress \[Tex. Civ. App.\] 116 SWV 129.

21. Coverture after commencement of running of statute will not interrupt it. Hoencke v. Lomax \[Tex. Civ. App.\] 118 SWV 817.

01. Mahoney v. Southern R. Co. \[S. C.\] 64 or 20 years under $5 4213, 4214. Illinois SE 228. Uses to which land was put may be considered in determining whether in- tervals between occupancies were reasonably required for change of tenants. Dunn v. Taylor \[Tex.\] 113 SWV 265. Breaks of four, five, six or 12 months held too great to be disregarded as reasonable times allowed for changes of occupancies. Id.

01. Claimant must show facts from which conclusion of continuity may be affirmatively deduced. Dunn v. Taylor \[Tex.\] 113 SWV 265.

01. Dunn v. Taylor \[Tex.\] 113 SWV 265.

01. More evidence that certain persons had applied to witness for permission to occupy the premises during intervals between occupancies and tenancies held insufficient to establish fact of possession.

01. More proof that tract had been occupied by several persons during 10 years held insulinfficient without connecting possession of the occupants. Chicago, etc., R. Co. v. Erskine \[Neb.\] 118 NWV 1098.

01. Yellow Poplar Lamber Co. v. Thompson's Heirs, 108 Va. 613, 62 SE 358. No priority between grantees in separate grants of land and of timber, Id. Failure to prove priority between successive possessions \[25\]. Privity between successive occupants is held fatal to title by adverse possession. Moore v. Loggins \[Tex. Civ. App.\] 114 SWV 183. On question of plaintiff's right to maintain a water pipe line, plaintiff held in privity with his predecessor though latter had conveyed premises in trust to secure a debt, where he retained possession and use of property, and owned entire beneficial interest. Colling v. Gray, 154 Cal. 131, 97 P 142. Evidence held to show priority of estate between successive wrong-ful holders requisite to allowance of privilege of tacking. Hanson v. Sommers, 105 Minn. 434, 117 NWV 842.

session cannot be tacked \[31\] nor the rights of a mere squatter who had abandoned the land \[32\].

SS 7. _Duration_, \[33\]. See 11 C. L. \[49\]. The possession must continue for the full statutory period \[34\], the duration varying in the different states \[38\]. The period begins only when possession is taken \[38\] and the commencement of an action to recover the land arrests the statute \[37\].

SS 8. _Color of title_ \[38\]. See 11 C. L. \[49\] is essential under the statutes and holdings of some states \[39\]. It is a technical term, meaning that which is title in appearance but not in fact \[40\]. To constitute color, the title claimed must be founded on some

SS1. Prior possession of tenant at will who recognized rights of owner. Original Consol. Min. Co. v. Abbott, 167 F 681. \[32\]. Right of appropriate of water cannot be tacked to that of mere squatter on public lands who had abandoned them (Hough v. Porter \[Or.\] 98 P 1083); but squatter may even by parol transfer his claim and interest whatever it may be, and rights of transferee may relate back to first appropriate (Id.).

SS3. Search Note See Adverse Possession, Cent. Dig. **13** 148-225, 271; Dec. Dig. **13** 38-43, 54; 1 Cyc. 1001-1009, 1023, 1024; 1 A. & E. Enc. L (2 Ed.) 834.

SS4. Claimment must show that for full statutory period occupancy was continuous, uninterrupted and adverse. Stone v. Perkins, 217 Mo. **586**, 117 SW 117. Where required period was 15 years but after 11 years plaintiff recognized an outstanding interest by dividing profits, his occupation was not sufficiently long. Paton v. Robinson \[Conn.\] 71 A 730. Evidence held not sufficient to show actual and exclusive possession for full period of 10 years. Butler v. Smith \[Neb.\] 120 NW 1106. \[35\]. Eight years' actual possession insulindlent. Hamilton v. Steele \[Ky.\] 117 SW 378. \[36\]. Theirteen years insufficient under 15-year status. Vermillion v. Nickel \[Ky.\] 114 SW 270. Possession since 1890 held insufficient in point of time, Webber v. Gillies, 112 NLYS 397. Possessions when tacked held insignificant. Kathirman v. Pennsylvania R. Co. \[N. J. Law\] 69 A 977. \[36\]. Under tax dead limitations run only from date of possession under deed. Yellow Popular Lumber Co. v. Thompson's Heirs 108 Va. 612, 62 SE 358. \[37\]. Date of Miling of complaint marks commencement of action. Lara v. Sandell \[Vash.\] 100 P 16. Service of summons in getment held to arrest statute though form of action was subsequently changed to suit to redeem. Butler v. Smith \[Neb.\] 120 NW 1106. Commencement of suit before payment of taxes for seven successive years held to break constructive possession of unimproved land created by payment of taxes thereon. Sibly v. England \[Ark.\] 115 SW 820. Judgment for recovery of land by tenant in common arrests statute in favor of cotemants not using from time action was commenced. Cassin v. Nicholson, 154 Cal. 497, 98 P 190. \[38\]. Search Note See notes in 5 C. L. \[53\]. 11 Id. 50, 51; 4 L. R. A. (N. S.) 776; 11 Id 772; 13 Id. 627; 15 Id. 1178; 83 A. S. R. 701; 1 Ann. Cas. 761. \[See, also, Adverse Possession, Cent. Dig. **13** 65, 66, 387-503, 656, 600, 668; Dec. Dig. **13** 67, 116 SW 108. \[39\]. See 11 C. L. \[49\]. See 11 C. L. \[50\]. See 11 C. L. \[60\]. See 11 C. L. \[61\]. See 11 C. L. \[62\]. See 11 C. L. \[63\]. See 11 C. L. \[64\]. See 11 C. L. \[65\]. See 11 C. L. \[66\]. See 11 C. L. \[67\]. See 11 C. L. \[68\]. See 11 C. L. \[69\]. See 11 C. L. \[70\]. See 11 C. L. \[71\]. See 11 C. L. \[72\]. See 11 C. L. \[73\]. See 11 C. L. \[74\]. See 11 C. L. \[75\]. See 11 C. L. \[76\]. See 11 C. L. \[77\]. See 11 C. L. \[78\]. See 11 C. L. \[79\]. See 11 C. L. \[80\]. See 11 C. L. \[8 written instrument, proceeding or law purporting to transfer title or the right to possession; " but a deed need not necessarily be executed to the occupant, provided

- **Verbal agreement to sell held not color:** **Sell. Dodge v. Cowart, 131 Ga. 549, 62 SE King v. Campbell \[Ark.\] 116 SWV 899. Possession under pargit is adverse to donor and if continued for 15 years establishes ti-le as against him and all claiming under him. New Haven Trust Co. v. Camp \[Conn.\] 71 A 788. 20 years' possession under oral gift held to give title. Grimes v. Bryan 149 N. C. 248, 63 SE 106.**
- **Tax deed regular on face but based on** **vold assessment is sufficient color under statute 1906 $ 591, quelting tax titles after four years' possession by purchaser. Florida Finance Co. v. Sheffield \[Fla.\] 148 S 42.**
- **Yoid tax deed sufficient color. Lara v. Sandell \[Vash.\] 100 P 166.**
- **The shift's certificate of foreclosure sale held color. Goetter v. Moore \[Vwash.\] 101 P 368.**
- **The shift's deed delivered under order of confirmation held color. Johnson v. Bartlett, 50 Wash. 114, 96 P 833.**
- **Decree of partition.** **Carpenter v. Fletcher, 239 Ill. 440, 88 NE 162.**
- **Report of commissioners in partition found among an altoite's papers and restored to records on proof of its genuinness held properly admitted to show color of title. Hill v. Lane, 149 N. C. 267, 62 SE 1074.**
- **VWIL held sufficient color. Daniels v. Dingman \[Iowa\] 118 NWV 372.**
- **Order or decree: Under Laws 1893, p. 20, c. 11, $ 1, requiring adverse possessor to have connected title from some person authorized to sell land under order or decree of court, sale is "authorized" when directed by order or decree valid on face, order valid by against collateral and direct attack not being essential to color. Schlarb v. 238 Ill. 280, 87 NE 371.**
- **VWIL held sufficient color. Daniels v. Dingman \[Iowa\] 118 NWV 372.**
- **Order or decree: Under Laws 1893, p. 20, c. 11, $ 1, requiring adverse possessor to have connected title from some person authorized to sell land under order or decree of court, sale is "authorized" when directed by order or decree valid on face, order valid by against collateral and direct attack not being essential to color. Schlarb v. 238 Ill. 280, 87 NE 371.**
- \*\*Order or decree: Under Laws 1893, p. 20, c. 11, $ 1, requiring adverse possessor to have connected title from some person authorized to sell land under order or decree of court, sale is "authorized" when directed by order or decree valid on face, order valid by against collateral and direct attack not being essential to color.

56ADVERSE POSSESSION SS 9.13Cur. Law. ! ! ! it is for his benefit,42 and an instrument may be color of title though absolutely void.43Under some statutes deeds must be recorded or registered in order to constitute color of title.44A grantee's possession is presumptively referable to his deed.45The construction of deeds as the basis of adverse possession is for the court and not for the jury.46

Footnote 49: Five and ten year statute inapplica-

Footnote 40: The author is grateful to the anonymous referees for the support of the author.

Footnote 41: The author is grateful to the anonymous referees for the support of the author.

Footnote 44: The author is grateful to the anonymous referees for the support of the author.

Footnote 45: The author is grateful to the anonymous referees for the support of the author.

Footnote 46: The author is grateful to the anonymous referees for the support of the author.

Footnote 47: The author is grateful to the anonymous referees for the support of the author.

Footnote 48: The author is grateful to the anonymous referees for the support of the author.

Footnote 49: Five and ten year statute inapplica-

Footnote 49: The author is grateful to the anonymous referees for the support of the author.

Footnote 40: The author is grateful to the anonymous referees for the support of the author.

Footnote 41: The author is grateful to the anonymous referees for the support of the author.

Footnote 42: The author is grateful to the anonymous referees for the support of the author.

Footnote 43: The author is grateful to the anonymous referees for the support of the author.

Footnote 44: The author is grateful to the anonymous referees for the support of the author.

Footnote 45: The author is grateful to the anonymous referees for the support the time and in the manner prescribed thereby,50 and the fact that he is prevented from so doing is no excuse.51 Payment of taxes alone without possession or color of title is not sufficient.52

SS 10. _Area of possession.53 See 11 C. L. 51_.\_When a possession is without color of title, it extends only to the land actually occupied,54 in the absence of controlling statute;55 but actual possession of a part of land claimed under some written in-ment\* of taxes within Codes, $ 4928, re- SuV 158. Payment without possession in-quiring possession and payment of taxes. Suflleent under five-year statute. Brunner Stiles v. Granger \[N. D.\] 117 NW 177. Payment of tax judgment and costs by pur- 602. Where by reason of not having color chaser at tax sale held not payment of taxes or other state barring title of owner not in three tract-recovers only the portion actually occupied, he is entitled to a decree for taxes for 30 years. Dunnington v. Hudson, 217 Mo. 93, 116 SWV 1083. Railroad company listing part of a lot not part of its right of way with state board of equalization having no authority to assess same held not 21 L, R. A. 829.

to have paid taxes, lot having been assessed as such to owners by local assessor having jurisdiction. Rio Grande Western R. Co. v. Salt Lake Inv. Co. \[Utah\] 101 P 568. Plaintiff held not entitled to land un- 915; Poole v. Oliver \[Ark.\] 117 SWV 747: der Act March 18, 1899, providing that unlicosed and unimproved land shall be deemed in possession of person paying taxes where he has color of title, he and defendant having agreed that plaintiff\* of agent should pay taxes until plaintiff and defendant adjusted their differences rejecting the land. Chatfield v. Iowa & Ark. Land Co. \[Ark.\] 114 SWV 473.

50. Payment of taxes under rendition of different tracts held insufficient under five-year statute. Sharpe v. Kellogg \[Tex. Civ. App.\] 116 SWV 401. Payment of taxes before sale to enforce, them is sufficient, though after April 10, when lands become delinquent. Price v. Greer \[Ark.\] 116 SWV 676. Under Kirby's Dig. $ 6057 giving title by payment of taxes for seven years provided three payments are made after passage, it is sufficient if three payments are made after passage. The act, though three full years have not expired from first of such payments. Price v. Greer \[Ark.\] 116 SWV 676. Bar complete If seven years have elapsed from date of first payment, if seven payments have been made in succession, three of which were made after passage of statute. Id. Seven years adverse possession and payment of taxes is sufficient under Ba1. Ann. Codes & St. $ 5503 (Pierce's Code, $ 1160), though seven years have not elapsed since first payment of taxes. Lara v. Sandell \[Wash.\] 100 P 166.

01. Occupation and payment of taxes for four years and offer of occupant to pay for fifth and last year, but refusus1 thereof by tax collector because payment had been made by original owner, held not sufficient under Code Civ. Proc. $ 325. Glowner v. De Alvarez \[Cal. App.\] 101 P 432. To acquire title by possession and payment of taxes for 7 years under Hurd's Rev. St. 1908, c. 83, $ 6, claimant must pay taxes, and if land is not subject to taxation or is not assessed, title cannot be acquired short of 20 years. Illinois Cent. R. Co. v. Cavins, 283 Ill. 830, 87 INS 371.

01. Payment without actual possession insufficient. Scroggins v. Nave \[Ky.\] 119 * \[58\] "ADVERSE POSSESION $ 10", 13 Cur. Law.

- \[59\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[60\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own." \[61\] "Where
- \[62\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[63\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own." \[64\] "Where
- \[65\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[66\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own." \[67\] "Where
- \[68\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[69\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own." \[69\] "Where
- \[69\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[69\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own." \[69\] "Where
- \[69\] "Astrument is in law coextensive with the boundaries therein defined," " if the whole is claimed " and no one else occupies adversely." \[69\] "Where color of title must be relied on, one cannot prescribe beyond the calls of his grant," and where several tracts are conveyed by a grantor who does not have title to all, actual possession of what the grantor owned will not extend constructively to what he did not own.

title to trees or minerals has been severed by conveyance from title to the surface of the soil, adverse possession of the surface does not include possession of the trees or the minerals.\[91\] The presumption is that one claims all the land covered by his paper title.\[92\]

SS 11. \_Sufficiency of possession.\[63\] See 11 C. L. 58.\_The sufficiency of acts to constitute an adverse possession depends on the facts in each case, considered in the light of the statute.\[94\] Unimproved and unoccupied land is presumed to be in the dispute as well as other parcels conveyed. Idence, 11 C. L. 1346!: Inclosure, erection of Lyon v. McGowin \[Ala.\] 47 S 342. Where building, receipt of rents and profits, etc. Green v. Horn, 128 App. Div. 686, 112 NYS grantor owned, the grante's possession of only so much as the grantor owned will not give constructive possession of the re-mailored right of way, having continued for maininse land embraced in the description of the deed, actual possession of some part in dispute being essential to bar owner. Byrd V. Phillips \[Tenn.\] 111 SWV 1109.

61. Yellow Popular Lumber Co. V. Thompson's Rens, 108 Va. 612, 62 SE 358. Owner of trees could not tack his possession there- of to possession of owner of land, each owner holding by separate conveyance. Id. Granger \[N.\] 117 N NV 777. Forty years' occupancy and improvement of disputed rebutted by proof occupant did not claim beyond a certain line. Haddock v. Leary, 148 N. C. 378, 62 SE 426.

01. Search Note See Adverse Possession, Cent. Dlg. 87-147!: Dec. Dig. 81 14-38; 1 Cyc. 982-999, 1024-1026!: 1 A. & E. Enc. L (2ed.) 822.

01. Actual fencing and inclusore of tract not necessary. Wallace v. Sache, 106 MInn. 123, 118 N NV 360. Ordinary use and taking of ordinary profits will suffice. Id. Sufficient that possessor enters and possesses land as if it were his own. Alderman v. New Haven \[Conn.\] 10 A 626. Laws 1891, D. 76 (astr. 3346, Rev. St. 1895), declaring in effect that a possession by inclusure of 6,000 acres or more shall not be the peace-able and adverse possession required by 10 year statute unless inclusive is a substanan- trial fence or one-tenth be cultivated, or unless land is actually occupied, applies though claim is asserted under recorded deeds. Dunn v. Taylor \[Tex.\] 113 SWV 265. Adverse possession may consist of the con- tinuous submerging of land by construction and maintenance of dam across stream. Simons v. Munch \[Minn.\] 120 N NV 373. State authorities boards of county commisioners to grant licenses for construction of dams across streams navigable for logs and lumber are for benefit of public and do not have effect of limiting easement to that purpose as to owners of submerged land. Id. "Title" as used in former opinion refers not to fee of land but to right to maintain dam. Id. In case of a mine severed from surface ownership, surface owner must show actual, notorious, exclusive, continuous, peaceable possession of the mine, independently of possession of surface, same as a stranger. Gordon v. Park \[DMo.\] 117 SWV 1163. Actual possession is shown by opening and operation of mine, and possession is continuous if operations are carried on at such seasons as nature of work permits or custom requires, if there is some evidence to connect the operations. Id.

Acts held sufficient \[See, also, post, Evl.\] possession of the holder of the legal title," but naked color of title derived from a sheriff's void sale will not draw to it constructive possession where actual possession is not taken of any part of the premises," and, if possession under color of title, cutting cordwood, extensive lumber- \[ on part of tract. Chicago, etc., R. Co. v. ing, seeding, and harvesting of hay, held sufficient, most of land being unht for cultivation. Kingston v. Guck \[Mich.\] 15 Det. Leg. N. 983, 118 NWV 967. Under Code Civ. Proc. 1892, $ 103, making use for supply of fuel, for timber for purposes of husbandry, or ordinary use of an occupant sufficient, possession held adverse and continuous where land was continuously used for supply of fuel and timber the ordinary uses for which it was fitted, though not cultivated or inclosed. Bardin v. Commercial Insurance & Trust Co. \[S. C.\] 64 SE 165. Inclosures: Fence on three sides of land and a river on fourth held sufficient enclosure when land was actually used to show appropriation subject to Rev. St. 1895, art. 3346. Dunn v. Taylor \[Tex.\] 118 SWV 265. That a river was not a perfect barrier against stock held not conclusive against claim of possessor of land thereon. Id. High bluff of river repaired in low places so as to turn away stock held a natural barrier and sufficient to show adverse possession, when completing inclosedure in connection with fences. Doniphan Lumber Co. v. Case \[Ark.\] 112 SWV 208. Evidence held to show defendants had acquired title under 10-year statute by inclosure and use. Appel v. Childress \[Tex. Civ. App.\] 116 SVV 129. Payment of taxes: Where land was vacant, payment of taxes under color of title for seven years held sufficient under Ball. Ann. Codes & St. g 5504 (Pierce's Code $ 1162). Goteter v. Moore \[VAsn.\] 101 P 365. Evidence held to show occupation and payment of taxes so as to give title under $-year statute. Cleveland & Sons v. Smith \[Tex. Civ. App.\] 113 SVV 547. Heid Insuffent \[See, also, post, Evidence, 11 C. L. 13461: Where lands were wild and antiltivated and it did not appear claimant or his ancestor was in actual possession or compiled with statutory requirements. Dallam v. Sanchez \[Fla.\] 47 S 871. Where Die of adverse possession was addressed to an entire league of land, but only possession proved was that of tenants under leases of undefined portions of the league and tenants did not extend possession beyond par- \[ ons leveled by houses, fields and improvements, plea was not sustained though \] leases contained agreements by tenants to occupy and hold possession of league. Houston Oil Co. v. Klimball \[Tex. Civ. App.\] 114 SVV 662. Where evidence did not show 10 years' possession by purchaser of inter- \[ ons leveled by an hour prior to purchase. nor that \] cultivation and possession of part of tract was under claim of ownership of entire \[ ons leveled by an hour prior to purchase.\] 117 SVV 706. That a venue, and was not clear as to any inclusive accompanied by use, enjoyment or cultiva- \[ ons leveled by an hour prior to purchase.\] 117 SVV 717.

## 60 Adverse Possession $ 11.

### 61 Civ. Law.

possession of the holder of the legal title," but naked color of title derived from a sheriff's void sale will not draw to it constructive possession where actual possession is not taken of any part of the premises," and, if possession under color of title, cutting cordwood, extensive lumber- \[ on part of tract. Chicago, etc., R. Co. v. ing, seeding, and harvesting of hay, held sufficient, most of land being unht for cultivation. Kingston v. Guck \[Mich.\] 15 Det. Leg. N. 983, 118 NWV 967. Under Code Civ. Proc. 1892, $ 103, making use for supply of fuel, for timber for purposes of husbandry, or ordinary use of an occupant sufficient, possession held adverse and continuous where land was continuously used for supply of fuel and timber the ordinary uses for which it was fitted, though not cultivated or inclosed. Bardin v. Commercial Insurance & Trust Co. \[S. C.\] 64 SE 165. Else 165. Inclosures: Fence on three sides of land and a river on fourth held sufficient enclosure when land was actually used to show appropriation subject to Rev. St. 1895, art. 3346. Dunn v. Taylor \[Tex.\] 118 SVV 265. That a river was not a perfect barrier against stock held not conclusive against claim of possessor of land thereon. Id. High bluff of river repaired in low places so as to turn away stock held a natural barrier and sufficient to show adverse possession, when completing inclosure in connection with fences. Doniphan Lumber Co. v. Case \[Ark.\] 112 SWV 208. Evidence held to show defendants had acquired title under 10-year statute by inclosure and use. Appel v. Children \[Tex. Civ. App.\] 116 SVV 129. Payment of taxes under color of title for seven years held sufficient under Ball. Ann. Codes & St. g 5504 (Pierce's Code $ 1162). Goteter v. Moore \[VAsn.\] 101 P 365. Evidence held to show occupation and payment of taxes so as to give title under $-year statute. Cleveland & Sons v. Smith \[Tex. Civ. App.\] 118 SVV 547. Heid Insuffent \[See, also, post, Evidence, 11 13 Cur. Law. ADVERSE possession SS 12.61

title is discontinued before the expiration of the statutory period, the constructive possession will follow the true title and not the color of title." The possession of a tenant inures to the benefit of the landlord," and where the tenant thereafter acquires title he may assert the landlord's rights." So, also, a grantor's possession of the surface of mineral lands inures to the benefit of his grantee of the minerals therein, as against third persons," and as against the latter the possession of one who claims the soil may be relied on by a claimant of timber thereon." The possession of one who merely claims to hold for himself and another inures only to the benefit of the possessor to the extent of half the property in the absence of contract or tenancy."

SS 12. \_Pleading, evidence and instructions."\_See 11 C. L. 64.\_Adverse possession must be specifically pleaded," and the plea must include all the essential elements of such defense," but a plea of title in defendant has been held to admit proof of title by adverse possession." A reply to a plea of limitations setting out permissive possession under executive contract of sale need not allege the terms of such contract or the vendor's performance thereof." The ordinary rules of pleading apply."

\_Evidence.\_See 11 C. L. 64.\_The burden is on the party setting up adverse possession," and proof of the essential elements of such possession must be clear and co-gent;" but it is ordinarily sufficient for claimant to bring himself within the gen-

67. Stone v. Perkins, 217 Mo. 586, 117 SW
01. Neal v. Davis \[Or.\] 99 P 69. Allega-
01.

68, 69. Harris v. Iglehart \[Tex. Civ. App.\]

ments of B. & C. Comp. & 329. Id.
113 SW 170.

77. Giem v. Rhine \[Tex. Civ. App.\] 115 SWV
01.

Co. \[Tenn.\] 118 SWV 694.

78. Adverse use of water and prior ap-,

propriation held not inconsistent defenses.

showing no title in his grantor, conveys

Hough v. Porter \[Or.\] 98 P 1083. Judg-

the timber to A for 12 years and afterwards

converys to B the land "except the pine trees,

authorized where reply denied aberrant

etc., heretofore deeded away to A for 12

of title and plaintiff's pleadings did not

years" and B enters in good faith and re-

manis in exclusive possession for more than

seven years. 'B's possession is not adverse

to A, but in tregsness by one claiming title

from state defendant may set up such possession of B as establishing prescription in

A. Moore v. Ensign Oscamp Co., 181 Ga. 421,

69 SE 229.

72. Frey v. Meyers \[Tex, Civ. App.\] 113 SE

01. Person for whom possessor claimed to

hold acquired no title. Id. Meyers v. Frey

\[Tex.\] 119 SWV 1142.

73. Seenen Notee See Adverse Possession,

Cen. Dig. $6, 636-701; Dec. Dig. $110-

117: 1 Cyc. 1140-1155; 1 A. & E. Enc. L.

(2ed.) $86.

74. Pleading held insufficient. Perry v. Ball \[Tex. Civ. App.\] 113 SWV 588.

01. Answer in ejectment that defendant and his grantors had been in the actual, open notorious, and exclusive possession of the premises for more than 20 years, and had been the actual owners during said time. held insulinClient for failure to allege that possession was adverse or

under claim of title. McGrath v. Valentine

\[C. C. A.\] 167 F 473. Under five-year stat-

ute regulating possession under recorded dead, person setting up title by adverse

possession need not specifically aver that his defendant

his deal is not forged. Work v. United

Globe Miles \[Aris.\] 100 P 813. Allegation

that cross complainant held under recorded

deed from certain grantors named held

sufficient. Id.

76. Neal v. Davis \[Or.\] 99 P 69. Allega-

01.

01. Griffith v.

### 62 ADVERSE POSSESION SS 12.

13 Cur. Law.

eral provisions of the statute, the owner being required to show exceptions.\[81\] The competency and weight of the evidence are governed by the ordinary rules.\[82\] The

show adverse possession of part of alley by | not by supplemental |. petition. Hese v. lot owner for statutory period so as to partially extinguish easement of lot owner on other side of alley. Kupprecht v. Many's | was posession. Gardner v. Montague, Roman Catholic Church Soc, 131 App. Div. 108 Va. 192, 60 SE 870. | 564, 115 NYS 926. To show defendant had acquired title by adverse possession to cer. Armstrong v. Wilcox | | 49 $ 41. | 49 $ 41. | 49. | 48 $ 41. | 49. | 48 $ 40. To show that certain possessions were on land located under a particular entry. Breckenridge Cannel Coal Co. v. Scott | 171 $ 890. To sustain ver. did not then make any claim to the land, which subject to rejection, though uncontra-oriented, predecessor being dead. Appel v. M. G607, 117 SW 724. To show possession of | 49 plainff\* grantors so as to make out of predecessor and his wife held not con- | 5. Jones, 81 S. C. 453, 62 SE 870. To sustain finding that plainff's grantors held title acquired by adverse possession but under five and ten year statute. Hoencke v. Lomax | 118 SW 817. To establish title by adverse possession in pur. | 49.

acts and declarations of the claimant while in possession may be shown.\[88\] While declarations or admissions made after a title has ripened cannot operate to divert that title,\[84\] claimant's declarations made after the alleged statutory period may be admissible on the issue whether the possession was in fact adverse.\[85\] Continuation of a possession once shown will not be presumed in the face of evidence to the contrary.\[80\]

_Instructions.\[See 11 C. L. 87.--If there is evidence on the issue of adverse possession, the question should ordinarily be submitted to the jury; \[87\] otherwise not.\[88\]_

knowledgment of married woman's deed

regard to claim against another part of was only in certificate and that deed was in

plaintiff's land held properly excluded. Id.

fact properly acknowledged held admissible

Possessor's declarations in disparagement

to show bons fides of claimant's title,

of his title held admissible. Hill v. Bean,

though action to correct certificate was

180 N. C. 485, 64 SE 212. Heid competent

barred. Yeeder v. Gilmer \[Tex. Civ. App.\]

for defendant in experiment who had shown

120 SSV 584. Evidence for plaintiff that

possession in one under whom he claimed

witness had acted as attorney for defend-

to also show acts and declarations on part

ant's predecessor and had negotiated for

or such person characterizing his possess-

purchase or lease of the land, and that he

sion. Godley v. Barnes \[Ga.\] 64 SE 546.

had given a deed to his principal only to

Could show that such person sued in as-

protect improvements, held admissible to

sampmit one who had boxed for turpentine

negative claim of ownership. Hyman v.

trees on the land, though defendant in as-

Grant \[Tex Civ. App.\] 114 SSV 583. Evil-

sampmit was stranger to title of plaintiff in

dence that a grantor remained in possess-

sion after conveyance to defendant, and

not be admissible as conclusive adjudiation

surrendered her possession to plaintiff

of title (Id.), or as proving truth of plaintiff's

telling him land belonged to him, held add-

tiff's allegations therein (Id.), nor would

miselible to show break in possession under

make fact of renddition of judgment, be

which defendant claimed. Pardue v. Whit-

relevant (Id.), or be part of plaintiff's

safeld \[Tex. Civ. App.\] 115 SSV 306.

sertion of title (Id.). If declaration in as-

**Held inadmissible:** Where plaintiff claimed

sumspin action was otherwise admissible as

by adverse possession evidence that his

an assertion or act characterizing posses-

father had told him the land belonged to

plaintiff's mother held not admissible to

though general might have been applied to

establish adverse possession, but only to

the land involved in element suit, it was

show character and extent of father's pos-

sompotent to show by parol that trees

session. Jeffery v. Jeffery \[Ark.\] 113 SWV 27.

I1. On issue of permissiveness of posses-

sion, statement by defendant's husband in

sistem with or in submission to the title of

her presence that himself and wife had no

the real owner, nothing but clear unequiv-

nome held admissible. Chambers v. Morris

coal and notorious disclaimer and disclaimer and disclaim.

\[Ala.\] 48 S 687. Objection to one's test-

vowsal of the title of such owner will ren-

mony on ground that declarations as to

der the possession, however long continued,

character of possession is admissible only

adverse. Kirby v. Kirby, 286 IL1, 255, 86 NE

when made by occupant held removed by

559. Slight evidence of statements by par-

evidence that he authorized his mother's

ent inconsistent with claim of adverse possession

session against children held entitled to

Steel Co. v. Paczocchia \[Vis.\] 119 N NVV 650.

greater weight than in case parties occu-

Actual possession cannot be shown by a

pled different relationship. Id. Evidence

tennant's declaration acknowledging

that one in whose favor adverse possession

any, the (estimony being hearsy. Dunn

is claimed made statements inconsistent

v. Taylor \[Tex.\] 118 SV 265.

with such possession is competent evidence.

Such statements by husband by possession of

55. Carroll v. Rabberman, 240 III. 450, 88

land through right to-homestead and dover

held admissible against widow claiming fee

so. Where person put in possession stayed

in opposition to children of wife through

only three months. Stone v. Perkins, 817

whom husband was entitled to dover and

homestead. Id. Declarations of parent re-

sdfing on land through dover and home-

stead derived through wire, inconsistent

with intention to claim adverse possession,

held to prevent running of statute against

children. Id: Declarations of ownership

by person in possession are strongest proof

of adverse possession and always admissible.

Texas & N. O. R. Co. v. Broom \[Tex. Civ. App.\] 114 SSV 655. Declarations by one

App.\] 114 SSV 655. Declarations by one

under whom defendant claimed as to ex-

tent of his claim held admissible, though he

sion. God

# ADVERSE POSSESION $ 12.

13 Cur. Law.

structions must be unambiguous," and must properly define adverse possession."

They must be justified by the law " and the evidence," and must otherwise conform to the usual rules."

been occupied, there being evidence it had & N. O. R. Co. v. Broom \[Tex. Civ. App.\]

been put to such use as it was susceptible 114 SWV 655. Instruction omitting word of. Chambers v. Morris \[Ala.\] 48 $ 687.

"consecutive," in describing number of Issue of adverse possession by several co-, years required for title by adverse possession, is erroneous. Hays v. Lemoine \[Ala.\]

v. Arledge \[Tex. Civ. App.\] 120 SWV 508.

"and" enjoyment, held error, statute requiring to prove adverse possession, but there was also some evidence to the contrary. Koltermann v. Chilvers \[Neb.\] 117

Where in \_e_jcement for a coal mine court instructed on usual elements of adverse involves good faith, is a mlxed question of law and fact. Error, under the facts of the case to direct a verdict in favor of defendant. Moore v. Ensign-Oscamp Co., 111 Ga. 421, 62 SE 229.

88. Held error to submit issue of adverse possession, plaintiff having introduced no evidence thereof. Eighteen v. Borden \[Ky.\] 117 $ 675. Submission of question of adverse possession for 20 years held error, there being no evidence of adverse possession for 20 years held error, there being no evidence of adverse possession for such time as could raise prescription. Fueling v. Please \[Ind. App.\]

87 NE 700. Evidence that defendant's predecessor recognized as his tenant one who by mistake ran his fence $0 or 60 rods into I,000 acre tract in dispute, and who said he would give up the land, held insufficient to raise issue of adverse possession. Hyle v. Davidson \[Tex. Civ. App.\] 116 SWV 823.

Instruction submitting issue of adverse possession against cotenant held justified by evidence. Honea v. Arledge \[Tex. Civ. App.\] 120 SWV 508.

89. Instructions that subsequent actual possession of one who took possession as widow would not of itself be notice that she claimed adversely held misleading. Hays v. Lemoine \[Ala.\] 47 S 87. Charge in ejcement held calculated to mislead jury into belief that if plaintiff's grantor was in possession of any one of several tracts, whether the one in dispute or not, it would be sufficient to make a prima facie case despite evidence of adverse possession in defendant. Barry v. Madoris \[Ala.\] 47 S 152. Instruction held calculated to lead jury to believe that posession for seven years under color of title would not avail against holder of prior outstanding. Gedley v. Barnes \[Ga.\] 64 SE 546. Instruction to find for plaintiff "on this Issue" held not objectionable as re-, during finding for plaintiff on entire case in case of finding for him as to adverse possession. Brummer Fire Co. V. Payne \[Tex. Civ. App.\] 118 SWV 602.

01. Charge to find for defendants if they had had peaceable and adverse possession for ten years and such possession had been open, notorious, etc., held sufficient, though not defining peaceable and adverse possession separately and in language of state. Stoker v. Fugitt \[Tex: Civ. App.\] 113 SWV 310. Where court properly defined adverse possession, instruction defendant had title 11 he claimed the land or cultivated, used, or enjoyed it for 15 years under such possession held proper though word "claiming" was not in state. Texas\* \[13\] Cur. Law. **AFFIDAVITS.**

Nature of title acquired. 94See 11 C. L. 57.--The title acquired by adverse possession is an absolute 98 and marketable one,98 assertable in all actions, legal or equitable.97 Of course adverse possession or prescription can confer no right to maintain a nuisance,98 and claimant will be confined to the rights he actually acquired.99

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

## 14 Adviee of Counsel, see latest topical index.

### The scope of this topic is noted below.

\_Who may take.\_See 12 C. L. 88.--A notary public, who is an attorney at law, and clerk in a law office, may take affidavits if not interested in the proceedings in which such affidavits are to be used,3 and, where there is no statute forbidding an attorney of record to take an affidavit of his client to be used in the case, the court may, considering the circumstances thereof, allow such an affidavit to stand.4

Footnote 98: Always begin with the latest article on the subject. Use the latest topical index.

Form and requisites.See 11 C. L. 68--The affiant must sign his affidavit,\* and if he fails to do so the defect cannot be cured by amendment.\* It is also necessary that the affiant, at the time of tendering the affidavit to the officer, use language signifying that he consciously takes upon himself the obligation of an oath.\* Every affidavit should show upon its face that it was taken within the jurisdiction of the officer who certified it,\* and, if he is authorized to act outside of the county of his appointment, such fact should be noted in jurat of an affidavit taken by him outside of such county.\* The jurat must be signed by an officer with the addition of his of-ficial seal.10 but need not always give the date on which the affidavit was made.11 To be entitled to consideration in any judicial proceedings, an affidavit must be traversable and must lay the foundation for a charge of perjury if false.12

Admissibility of affidavit in evidence and effect thereof.See 11 C. L. 68--The ex parte affidavit of a person not a witness cannot be used as independent evidence.18

The scope of this topic is noted below.18

An affidavit of defense is purely a statutory requirement.14 In disposing of a rule for judgment for want of a sufficient affidavit of defense, nothing is before the court except plaintiff's statement and defendant's affidavit in reply thereto,17 and judgment cannot be entered for want of a sufficient affidavit of defense where the declaration itself is defective.18 On a motion to strike a plea for want of an affidavit.

- \[treated as having been made on day bill hence warrant based thereon and judgment was filed. Ebann v. Brown, 139 Ill. App. v. Pennsylvania Tanning Co., 130 App. Div. 405, 114 NYS 1002. Act of plaintiff's attorney in returning answer as a nullity, because affidavit of verification was taken by defendant's attorney of record, held not authorized as affidavit was not void. Zichermann v. Vohlstadter, 60 Mise. 362, 113 NYS 403. 5. AmDavid for attachment which is sworn to but not signed is void as affidavit. Davis v. Sherrill \[Tex. Civ. App.\] 113 SSV 566. 6. Where purported affidavit for attachment is not signed by affant, it is not an affidavit, and cannot be amended. Davis v. Sherrill \[Tex. Civ. App.\] 113 SSV 565. 7. If officer so understands, and immediately signs jurat, this will amount to such concurrence of act and intention as will constitute legal swearing. Mitchell v. Measury \[Ga. 64 68 276. 8. Under Laws 1882, D. 1704, c. 683, 85, as amended by Laws 1894, p. 186, c. 68, authoring netaries to take an affidavits in county where appointed, the affidavits is void where jurat shows it to have been sworn to in county other than that for which notary was apportioned. Robinson v. Cooper, 62 Misc. 517, 115 NYS 599. 8. Where venue indicated that affidavit was taken in county of New York, and the jurat that officer was appointed for Kings County, the affidavit was void. Robinson v. Cooper, 62 Misc. 517, 115 NYS 599. 10. Paper purporting to be an affidavit of publication of notice of an action was insufficient where no name was subserbled to juxt. Deputy v. Dollaridge \[Ind. App.\] 86 NE 344. 11. Affidavit to bill for injunction may be 13. 14. 15. 16. 17. 18. 19. 18. 19. 19. 19. 19. 20. 21. 30. 31. 40. 41. 5. 21. 5. 32. 5. 42. 5. 6. 7. 8. 9. 21. 43. 5. 6. 7. 8. 9. 33. 5. 7. 8. 9. 44. 5. 6. 8. 9. 7. 8. 9. 8. 19. 21. 5. 8. 19. 22. 33. 5. 7. 8. 9. 19. 34. 5. 8. 19. 23. 5. 8. 24. 5. 8. 25. 8. 26. 9. 35. 8. 27. 8. 28. 36. 9. 4. 5. 8. 28. 37. 8. 38. 4. 5. 8. 39. 6. 9. 7. 8. 9. 9. 19. 20. 31. 40. 5. 8. 21. 5. 8. 22. 5. 8. 23. 5. 8. 24. 5. 8. 25. 8. 26. 9. 37. 8. 38. 4. 5. 8. 39. 6. 9. 7. 8. 9. 9. 19. 21. 22. 30. 31. 40. 5. 8. 23. 5. 8. 24. 5.

davit of defense, the grant or refusal of a counter motion for leave to file an affidavit instanter is within the court's discretion,19 and, if judgment be entered before the affidavit of defense is filed, the validity of such judgment will not be affected by the subsequent filing of the affidavit, even upon the same day.20 The right in Pennsylvania to take judgment for the amount admittedly due and to proceed on the remainder cannot be invoked when a rule for judgment for the whole claim has been taken for want of a sufficient affidavit of defense.21

An affidavit of defense must be accorded a fair and liberal interpretation,22 and where, it fairly set forth facts sufficient to show prima facie a good defense, it is not to be subjected to a close, technical examination as in the case of a special plea demurred to,23 as it is offered to prevent a summary judgment, and for that purpose the showing of a defense with certainty to common intent is sufficient,24 all that is required being that the facts alleged shall be sufficient to indicate a substantial legal defense made in good faith.26 Ordinarily, however, every matter of defense must be set forth specifically and with such detail as to show clearly its relation to the plaintiff's claim,26 and the affidavit must be as explicit and specific as

Super. Ct. 644; Zeller v. Wunder, 36 Pa. account for furniture, affidavit of defense is sufficient which specifically denies purchase on book account, but specifically grant counter motion where affidavits offerd state no defense. Reed v. New York 1176 to furnish certain rooms for less sum that claimed and that plaintiff failed to comply with his contract. Schaefer v. davit of defense must be filed within fifteen days from filing of rule to file affidavit of defense is sufficient which avers that goods on 16th day for want of affidavit, such they were so unsound, so unnutt for house-indavit is filed later the same day. Western National Bank v. Cotton, Oil & Fibre Co., 55 Pa. Super Ct. 47.

21. Faux v. Filter \[Pa\_\] 72 A 891. Court cannot be convicted of error in not making an order permitting plaintiff to take judgment for part of his claim. Gross v. Ricehezza, 37 Pa. Super. Ct. 441.

01. If facts stated will, by any fair and reasonable construction, constitute defense to action within scope of defensive pleas, it is right of defendant to have case tried by jury. Patterson v. Bartlev, 30 App. D. C. 651. In an action by payee against maker of promissory notes, an affidavit of defense, which, though confusing, averted that notes were given in partnership venture which had been violated by payee, was sufficient to send case to jury. Faux v. Filter \[Pa\_\] 72 A 891. Where affidavit of defense denied that defendant had contracted to fill plaintiff's property with number of cubic yards of earth alleged by plaintiff, such affavit was a sufficient denial of liability to furnish the less amount indicated by difference between amount actually filed in and amount stated by plaintiff. Bigham v. Wash-Pittsburg Terminal R. Co. \[Pa\_\] 72 A 818.

01. Stern v. Dwyer, 35 Pa. Super. Ct. 132. 24. In action on book account for merchandise, affidavit of defense as to claim ef set-off, arising from failure of plaintiff to deliver merebandise according to their agreement and damage sustained by reason of shutting down of defendant's factory, held sufficient. Stern v. Dwyer, 35 Pa.

01. Comment for furniture, affidavit of defense is sufficient which specifically denies purchase on book account, but specifically avers that there was a contract with plaintiff to furnish certain rooms for less sum than claimed and that plaintiff failed to comply with his contract. Schaefer v. Lange, 37 Pa. Super. Ct. 617. In action for foodavits sold and delivered, affidavit of defense is sufficient which avers that goods were ordered but not such goods, and that they were so unsound, so unnutt for house-hold consumption, so unnremarkable, so filled with sand or grit and so sour, that they were wholly useless and worthless. Gross v. Ricehezza, 37 Pa. Super. Ct. 441.

In action for breach of contract, where statement alleges nondelivery and market price, an affidavit of defense, which denies that there was any market price at place named at time delivery should have been made. meets the issue as to damages and is sufficient to prevent summary judgment on motions. Connilleau v. Rogers, Holloway & Co., 162 F 988. In action to recover for goods sold and delivered, affidavit of defense held sufficient to prevent judgment. Zeller v. Wunder, 36 Pa. Super. Ct. 1.

25. Patterson v. Barrie, 30 App. D. C. 631, following Dobbins v. Thomas, 26 App. D. C. 157.

01. Held insufficient in an action to recover purchase price of books. Patterson v. Barrie, 30 App. D. C. 631. Where last indexer on note sues prior indorser, an affidavit of defense not denying making and indorsing of note and insufficentiy denying attached copy, without demanding inspection of original, and not denying that plaintiff is holder of note, or that note at maturity was presented at place named in note for payment, or that said note was protected, is insufficenti. Burns v. Arm-strong \[Pa\_\] 72 A 255. Affidavit of defense of insury should state, if within defendant's power to so state, the date, amount, and rate of interest of each of alleged invurious notes, when they matured, and also amount of usury. King v. Curtin, 31 App. D. C. 23; King v. Curtin, 31 App. D. C. 28. Affidavit the nature of the circumstances reasonably admit,27 and what it does not state must be regarded as not existing;28 but the affidavit is sufficient if the denials are as specific as the statement of claim.28 Where the plaintiff has his rule for judgment for want of a sufficient affidavit of defense discharged merely to accelerate the trial, the court, in its discretion, may grant a second rule for judgment.39 The action of the trial court in refusing to enter judgment for want of a sufficient affidavit of defense will not be disturbed except for manifest error.31

Footnote 28: https://www.stat.ucsd.edu/~davit/

###### Abstract

The design of this topic is a natural problem.

## 17 The relation between the parties

In general, \[86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 202, 223, 235, 246, 247, 258, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 311, 320, 321, 333, 344, 355, 356, 357, 358, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 411, 412, 413, 424, 435, 446, 447, 455, 458, 459, 460, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 515, 509, 515, 515, 525, 535, 549, 556, 561, 562, 574, 575, 576, 577, 585, 585, 590, 515, 525, 535, 549, 556, 577, 585, 591, 503, 504, 505, 506, 507, 509, 515, 525, 535, 549, 556, 577, 585, 592, 535, 559, 560, 515, 525, 535, 559, 570, or an option,50 or a sale,51 or a conditional sale,52 or a joint adventure,53 or a conveyance,54 and whether the relation created is that of principal and agent, or master and servant,55 or employer and independent contractor,56 and, where an agency is found to exist, the question whom the agent represented,57 depends upon the terms of the contract and the particular facts and circumstances, the existence of which is usually a jury question,58 though the question, whether, upon a given state of facts, the relation created is that of agency, or some other relation, is a question of law.59

_A power of attorney_ is to be construed with reference to the same rules as those governing the construction of other written instruments.60 Thus, its construction will be controlled by the language used in connection with the intention of the donor, and the object sought to be accomplished, under the general doctrines of

owner's agent for sale of land. Redman uber custom whereby land, after location v. Manning \[Or.\] 99 P 657, Evidence held to show that one stockholder, in negotiation for sale of stock held by several others \[Tex. Civ. App.\] 116 SWP 630, was acting in representative capacity and was accountable as agent. Merrill v. Sax \[Iowa\] 118 NYW 634. One employed to sell stock of corporation, on commission, and 56. Relation between one with whom contract was made and an alleged undisward all moneys received to corporation \[a agent, but Independent contractor and em- \] 5078, defining larecny by agent. State v. Phillips, 105 Min. 375, 117 NYW 508, Plaims, lifts made arrangement with broker where- \] uber local, under directens from dealer, held dealer's servant or agent, not inde- \] ubering and selling glue, plaintiffs to receive commissions on all sales. Field, broker was plaintiffs' agent. Deane v. \[a agent, Deane v. \[a agent, Deane v.

agency.\[61\] In case of doubt, construction should be against the donor, when third persons are interested, but a strained construction should not be employed to defeat the manifest intention or embrace authority not intended.\[62\] Where addressed to matters of statute or substantive law, such statute or law becomes a part of the power.\[63\] Parol evidence is incompetent to vary the terms of a power of attorney.\[64\]_Intermediaries and dual agencies.\[65\]_ in C. L. 63--An agent cannot act for both parties to a contract or transaction 65 at the same time,\[66\] unless they consent,\[67\] but a broker, knowing of a customer, has a right to contract with an owner of property for a commission in case of sale.\[68\]_Subagents.\[69\]_ in C. L. 63--Authority of an agent to appoint a subagent must exist in order that the principal may be bound,\[69\] but such authority may be implied.\[69\] One without authority to do an act cannot employ another to do it.\[71\]_Authority involving judgment or discretion cannot be redelegated.\[72\]_(SS 1) \_C. Implied agency from relation of parties.\[73\]_See 11 C. L. 63--For certain purposes incidental to the relation, one person may be the implied agent of another to whom he sustains a particular relation.\[74\]_(SS 1) \_D. Evidence of agency.\[75\]_See 11 C. L. 63--The fact of agency may be established by inference from facts and circumstances of the agent's acts and dealings for the principal,\[66\] acquiesced in by the principal,\[67\] and by proof of a course of .\[\]_(SS 1) \_C. Implied agency from relation of parties.\[76\]_See 11 C. L. 63--For certain purposes incidental to the relation, one person may be the implied agent of another to whom he sustains a particular relation.\[74\]_(SS 1) \_D. Evidence of agency.\[75\]_See 11 C. L. 63--The fact of agency may be established by inference from facts and circumstances of the agent's acts and dealings for the principal,\[66\] acquiesced in by the principal,\[67\] and by proof of a course of .\[\]_(SS 1) \_C. Implied agency from relation of parties.\[76\]\_See 11 C. L. 64--For certain purposes incidental to the relation, one person may be the implied agent of another to whom he sustains a particular relation.

dealing between the principal and agent 7\* in regard to similar matters." Where it is alleged that a corporate agent had power to do a certain act, officers of the corporation may testify that he had no such power." Decisions dealing with the sufficiency of the evidence to show agency in particular cases will be found in the note."

The fact of agency cannot be established by proof of declarations or admissions by the alleged agent,"\[82\] though the stringency of this rule has been greatly relaxed

other lands himself and had revoked the power, was sufficient, with lapse of 50 years, to take issue to jury. Loughridge

seller of materials had authority to act for super, was sufficient, with lapse of 50 years, to take issue to jury. Loughridge

seller in promising to repair and return v. Ball \[Ky.\] 118 SW 321. Authority of

subesquently recognized foreman's act.

agent may be proved by testimony from

Richards v. Shepherd \[Ala.\] 49 S 251. Re-

witnesses as to what agent did, in what

cials in need executed by attorney in fact,

eapacity he was seen to act, and what prin-

cipal allowed him to do. Sariol v. James

he had seen power of attorney, held prima

McDonald Co., 127 App. Div. 648, 111 NYS

face evidence of authority of attorney to

7%. Issue being authority of agent to

603. Proof of payment by wife of interest

make contract for principal to pay commissions, evidence that agent had made similar

rants finding of payments by both. Bre-

previous contracts and that principal had

baid commissions thereander was compe-

let. Giger v. Levin, 113 NYS 1016.

dence held not to show relation of principal

79. Trover by senior mortgage against

junior mortgage of chatels, which had

Southern Exp. Co. v. Saks \[Ala.\] 49 S 392.

been taken by third person under assignment

Proof of general understanding, six years

ment of junior mortgage. Proof that third

person had acted as junior mortgage's

aim telegram if anything should happen to

agent in collecting other debts was admissi-

ble to show agency in transaction in issue.

hinderson Law Co. v. Hinson \[Ala.\] 47 S

717.

001. Where defendant in suit by corpora-

tion alleged that agent of corporation had

power to do certain act, it was proper to

follow officers of corporation to testify that

fendant's agent. Greenville Lumber Co. v.

he had no such power, Dolvin v. American

Harrow Co., 131 Ga. 300, 62 SEP 198.

81. Evidence sufficient to show agency

the evidence of agency held for jury. Lyons v.

Hammond Elevator Co., 139 Ill. App. 495.

Evidence warranted finding that one to

whom money was advanced was defendant\*

agent. Vhite v. Ballard County Bank

\[Ky.\] 117 SW 294. Evidence showed agency

of person who said defendant's hay.

Benson v. Stevens \[Mich.\] 15 Det. Leg. N. 1063.

119 NNV 431. Evidence held to show that

person who undertook to prepare defects was

buyer's agent. Hardy v. Ward, 150 N. C.

385, 64 SE 171. Evidence held to show authority in agent to sign defendant's name

to note. Eoff v. Citizens' Bank \[Ark.\] 112

SVV 213. Evidence held to show that one

contracting for installation of furnace

acted as authorized agent for legal ownership

ers of property; then authorized. Beach v.

Huntsman, 42 Ind. App. 205, 85 NE 523. Evidence held to show

dence held to show agency and authority

of husband to place wife's property in

charge of one charged with emhesizing it.

Henderson v. State \[Tex. Cr. App.\] 117 SW

825. Evidence held sufficient to take to

jury issue whether one who made contract

was defendants' agent. Short & Co. v.

Johnson \[Ark.\] 116 SW 688. Evidence held

to show agency and authority of one who

made loan for plaintiff and collected interest

est and received payment. Jolly v. Hueb-

ler, 132 Mo. App. 675, 112 SW 1013. Evidence

dence warranted finding that foreman of

13 Cur. Law.

## References

- \[1\] S. Bell, "The Bell's Law", _Phys. Rev._**D46**, 1987.
- \[2\] S. Bell, "The Bell's Law", _Phys. Rev._**D47**, 1988.
- \[3\] S. Bell, "The Bell's Law", _Phys. Rev._**D48**, 1988.
- \[4\] S. Bell, "The Bell's Law", _Phys. Rev._**D49**, 1988.
- \[5\] S. Bell, "The Bell's Law", _Phys. Rev._**D50**, 1988.
- \[6\] S. Bell, "The Bell's Law", _Phys. Rev._**D51**, 1988.
- \[7\] S. Bell, "The Bell's Law", _Phys. Rev._**D52** in its application to corporations which can act only through agents. \[88\] Where the agency is prima facie shown by other competent evidence, proof of declarations by the agent is competent in corroboration. \[84\] An agent is a competent witness to testify to the fact of agency \[85\] and the scope of his authority. \[88\]

(SS 1) \_E. Estoppel to assert or deny agency \[87\]\_See 1 C. L. 80_may arise from conduct of a party. \[88\]

(SS 1) \_F. Termination of relation. \[88\]\_See 1 C. L. 86_Where the relation is simply that of agency, \[80\] and the contract does not specify any period of its continuance, it may be terminated at will by either party. \[91\] In a continuous transaction or ne-

\*\*83. Smith v. Pullman Co. \[Mo. App.\] 119 SE 930. One who signed and took possession of property under lease, recting that certain persons were agents to rent property, was estopped to deny their agency. Infocur of agency. Missouri Valley Bridge & Henon v. Stokes, 109 Md, 117, 71 A 532. Iron Ce. v. Ballard \[Tex. Civ. App.\] 116 SW 93. Declarations incompetent to prove name and permits others to conduct the agency, but are circumstance to be considled.

business in his own name and deposit re-

red on question in connection with other

elpts to his credit makes them his agents,

facts. Ouf, etc., R. Co, v. Cunningham

and he is liable for money lost in gaming \[Tex. Civ. App.\] 113 SW 767. Admission of

carried on in the place. Cartwright v. Mc-

delarations of agent not error, where

Elwain \[Ky.\] 116 SW 297. Instruction to

party compaling himself brought out on

effect that holding out as agent must have

cross-examination facts tending to show

been with principal's knowledge approved.

agency. Id. Declarations of an alleged

Mclintyre v. Smyth, 108 Va. 738, 62 SE 930,

agent may be received provisionally as ver-

Where seller promptly disavowed agent's

bal acts indicating that he was acting on

anauthorized act in taking certain order by

another's behalf, leaving it to subsequent

letter to agent, but did not notify buyer

proof to establish his connection as agent.

but shipped car of oil as ordered, seller did

Clouf", V. Rookhignan County L, & P. Co.

not ratify agent's act, but was estopped to

\[N. F.\] 71 A 232. Declarations of person

assert that order was unauthorized. Ster-

with whom customers of broker dealt

iming-Hurd Oil Co. v. Big Four Ice, Light &

competent to show his agency for broker,

though competent to supplement previous

evidence tending to show such agency.

Mullen v. Quinlan & Co., 195 N. Y. 109, 87 NE 1078. Proof of payment of taxes by

agent not proof of authority; but admission

not error when there was evidence aliume

of agency. Union Naval Stores Co. v. Push

\[Ala.\] 47 S 48.

83. Clough v. Rockingham County L & P. Co. \[N. F.\] 71 A 233. Agent may testify

directly to his authority, though declarations are incompetent. Bender v. Ragan

\[Vvash.\] 102 P 427. Declarations of agent

not competent, but his testimony is competent, to prove agency. Lefkowitz v. Iba,

114 NYS 29. Rule that declarations of

agent are incompetent does not exclude

agent as witness to fact of agency. Wales

v. Mower \[Colo.\] 96 P 971.

84. Testimony of agent as to scope of authority competent in action against prin-

cipal by third person. Rainey v. Kemp

\[Tex. Civ. App.\] 118 SW 630. Agent hmm-

self, knowing facts, may testify to his

agency and the extent of his authority. Ayer & Lord Tie Co. v. Young \[Ark.\] 117 SW 1050. Agent may testify to his authority and as to what he did as agent. Hill v.

Bean, 150 N. C. 436, 64 SE 212.

87. Sernck Notei See Principal and Agent,

Cent. Dig. $\\lx@sectionsign$ 42-45: Dec. Dig. $\\lx@sectionsign$ 25; 1 A. &

E. Enc. L. (2ed.) 1195.

See, also, Clark & S. Agency, $\\lx@sectionsign$ 55-60.

88. See, also, Estoppel.

Estoppel shows: \[Evidence sufficient to

support finding that defendant held person

out as agent so as to be responsible for his

acts. McIntyre v. Smyth, 108 Va. 738, 62 SE 930.

82. Smith v. Pullman Co. \[Mo. App.\] 119 SE 930. One who signed and took possession of property under lease, recting that

certain persons were agents to rent property, was estopped to deny their agency.

Missouri Valley Bridge &

Benton v. Stokes, 109 Md, 117, 71 gotiation, the authority of an agent does not expire with the performance of one act, however important that act may be.\[92\] Where the contract provides for the manner of and cause for termination of the relation, its terms control.\[93\] A contract of agency which leaves the agent free to terminate the relation on reasonable or specified notice must be held to give the principal the same right in the absence of express contrary provisions.\[94\] Death of the principal revokes the authority of the agent," unless the agency was coupled with an interest."

_Notice of revocation_ See 11 C. L. \[97\] must be given third persons, in order to affect them.\[97\]

_SS 2. Rights and liabilities of principal as to third persons. A. Actual or implied authority to bind principal.\[98\] See 11 C. L. \[97\]_--Acts of the agent within the scope of the authority actually conferred upon him are binding upon the principal.\[99\]

Acts relating to matters not properly incident to the management of the ordinary

92. Wolcott v. Hayes \[Ind. App.\] 88 NE \[no amount due him for expenditures. Held, he received power coupled with an interest which was not revoked by donor's death. Bhowrsky v. U. S. Grand Lodge of the Or-

for spring and fall seasons did not equal der Gr birth Abraham, 129 App. Div. 695,

113 NYS 1080.

salesman's territory. Walfsheimer v. Frankel, 130 App. Div. 853, 115 NYS 958. Agent or servant being employed for three years, provided he proved "satisfactory" to employer, latter had right to discharge agent if dissatisfied, whether or not he had reasonable ground for dissatisfaction. MacKenzie v. Minis \[Ga.\] 63 SE 900. Ordinarily

any breach of duty undertaken by agent is good cause for his discharge. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SW 237. Contract providing that insurance agent should receive renewal premiums for 10 years if contract was terminated subsequent to one year and he should forfeit all rights if guilty of certain acts, and could be discharged at any time for "good cause," on **notice**, construed; terminable any time after one year, with premiums; terminable for any act mentioned with forfeiturbe of rights. Id. Letter from principal to agent stating that it was necessary to terminate the contract of agency, "notice of which is hereby given," held sufflectant notice under contract providing for termination by no-

tice. Nelles v. MacFarland \[Cal. App.\] 99 94. Newhall v. Journal Printing Co., 105

35. Lancaster v. Springer, 239 Ill. 472, 88

NE 272; Maxwell v. Harper, 61 Wash. 351,

98 P 756. Agency to deliver property to donees is revoked by death of donor before delivery. Trubey v. Pease, 140 Ill. 613, 88

NE 1005. Death of grantor of power of attorney to convey land revokes power. Lator v. Tooker, 130 App. Div. 11, 114 XYS

403. Death of principal revokes authority of agent to make feed. Wash v. Lubbeck

1\[Tex. Civ. App.\] 118 SW 88. Dead executed by attorney-in-fact, under power of attorney, after death of principal, is void,

whether or not agent had notice of death. Co. \[Mo. App.\] 11 give SV 498. Where agent

of principal. Dallam v. Sanchez \[Fla.\] 47

86. Agent for beneficiary under life policy had paid out money at her request, and received from her a power of attorney to collect money due on policy and apply same

on amount due him for expenditures. Held, he received power coupled with an interest which was not revoked by donor's death. Bhowrsky v. U. S. Grand Lodge of the Or-

for gyrin and fall seasons did not equal der Gr birth Abraham, 129 App. Div. 695,

113 NYS 1080.

salesman's territory. Walfsheimer v. Frankel, 130 App. Div. 853, 115 NYS 958. Agent

or servant being employed for three years, provided he proved "satisfactory" to employee, latter had right to discharge agent if dissatisfied, whether or not he had reasonable ground for dissatisfaction. MacKenzie v. Minis \[Ga.\] 63 SE 900. Ordinarily

any breach of duty undertaken by agent is good cause for his discharge. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SW 237. Contract providing that insurance agent should receive renewal premiums for 10 years if contract was terminated subsequent to one year and he should forfeit all rights if guilty of certain acts, and could be discharged at any time for "good cause," on **notice**, construed; terminable any time after one year, with premiums; terminable for any act mentioned with forfeiturbe of rights. Id. Letter from principal to agent stating that it was necessary to terminate

the contract of agency, "notice of which is hereby given," held sufflectant notice under contract providing for termination by no-

tice. Nelles v. MacFarland \[Cal. App.\] 99

94. Newhall v. Journal Printing Co., 105

01. Lancaster v. Springer, 239 Ill. 472, 88

NE 272; Maxwell v. Harper, 61 Wash. 351,

98 P 756. Agency to deliver property to donees is revoked by death of donor before delivery. Trubey v. Pease, 140 Ill. 613, 88

NE 100 business of the principal,1 outside the scope of the agent's actual authority,2 or done after his authority has terminated,3 and not impliedly 4 or apparently 6 authorized, or subsequently ratified * by the principal, are not binding upon him. Such authority may be implied as is reasonably necessary and proper to carry into effect the main power conferred,7 and an agent has also implied power to follow the usual /

Footnote 11: The authority of an agent does not ex-

were paid. Bank failed. Creditor liable to tend to any matter or transaction which is not properly incident to the management

to him as depositor for amount cashier of the ordinary business of his principal.

promised to deposit. Langlois v. Gragnon Farmers Co-op. Shipping Ass'n v. Adams

\[La.\] 49 S 18. Power of attorney to act for Grain Co. \[Neb.\] 122 NWV 55. Agent of cor-

principal, and to execute papers, etc., held

poration organized to buy and sell grant

not to confer power to sign principal's and live stock has no power to speculate in

name and acknowledge it, as though prin-

grain and mess pork on Chicago board of

cipal himself were personally executing it.

trade, and corporation not bound by such

\[People v. Shanley, 117 NYS 846. Agree-

acts not having given actual authority. Id.

ment by landlor's agent that tenant could

Only such powers as are incident and per-

remain in possession of premises part of a

tment to the business which the agent is

month without payment of rent unenforci-

empowered to transact. Blair v. National

ble unless specially authorized. Johnson v.

Shirt & Overalls Co., 137 Ill. App. 413.

Ruitet (Tex. Civ. App.) 120 SWV 267. Let-

Power to lease and manage a farm gives no

ter from mother to son, authorizing him to authority to indorse. a check not connected

sell stock for certain amount and deposit

with the business of the farm. Califf v.

proceeds in bank which would aid in mak-

First Nat. Bank, 87 Pa. Super. Ct. 412.

ing sale and pay 4 per cent, did not author-

**2.** To bind principal for purchases by

lze soon to deposit money until debt owed

agent, authority to make particular pur-

by him to bank was paid and as collateral

chases must be shown; agency for other

for his loan. Guarantee Title & Trust Co.

purpose not enough. Crone & Co. v. Long

v. Gillespie \[Pa.\] 72 A 703. Drayman

\[Ala.\] 49 S 227. Agent not shown to have

ployed to take shipper's goods to depot for

authority to make contract leasing property

shipment has no authority to enter into

crty of principal. Bonnazza v. Schlitz Brew.

Contract limiting liability of carrier, and

Co.-\[Mich.\] 15 Det. Leg. N. 846, 118 NWV 94.

shipper is not bound thereby where he did

Evidence held to show that special agent

not learn of it until long after shipment.

had no authority to take order taken.

Benson v. Oregon Short Line R. Co. \[Utah\]

Sterling-Hurd Oil Co, v. Big Four Ice,

99 P 1072. General agent for rental and

Light & Cold Storage Co. \[Tex. Civ. App.\]

care of property can bind his principal only

116 SWV 397. Principal not bound by agent's

by contracts within scope of his authority.

guaranty of performance by third persons

Instruction making any contract made by

of provisions of oil lease on land, when

him binding on principal erroneous. Na-

power of attorney expressly provided that

tional Loan & Inv. Co. v. Bleasdale \[Iowa\]

agent could not bind principal by any war-

119 NWV 77. Act of agent of municipal cor-

rury whatever. Williamson V. Deevey

poration, beyond his authority, cannot bind

\[Tex. Civ. App.\] 114 SWV 195. Agent of tele-

the municipality in its private corporate

graph company had no authority to receive

capacity. J. Burton Co. v. Chicago, 236 Ill.

message for transmission after office had

38, 84 NE 93. Where street commissioner

closed and to promise to deliver before

issued permit to property owner to build

opening hour next morning, rules for clos-

vault under alley, which was prohibited by

ing and opening being reasonable. West-

ordinance, his act was of no force, and city

ern Union Tel. Co. v. Cobb \[Tex. Civ. App.\]

was not estopped to deny its validity,

118 SWV 171. Evidence held to show that

through he had accepted bond and compen-

brewing company's agent had no power to

sation. Id.

grant to defendant agency for sale of com-

bany's goods for definite time and that he

hands of committee for sale before certain

did not attempt to do so. Uihlein v. Ca-

date, sale after that date conveyed no title,

plice Commercial Co. \[Mom.\] 102 P 564.

being unauthorized. Smith & Co. v. Collins

Where vendor makes written contract for

\[C. C. A.\] 165 F 148. Where bonde were

sale of chatlels, It does not, by sending

black holes to bank for execution by pur-

certain date, a sale after date was unauch

chases, authorize bank to accept notes In and customary mode of conducting the business entrusted to him.\* Implied authority to contract for medical services has been held to grow out of an emergency requiring such action.\* A mere agent or attorney in fact, who is not an attorney at law, cannot ordinarily represent his principal in judicial proceedings.10 Personal acts of the agent, not done in his representative capacity, are not binding on the principal,11 and a creditor who elects to give credit to the agent rather than to the principal, with knowledge of the facts, cannot hold the principal for the debt, though he receives the benefit.12 An agent has no power to use the subject-matter of his agency for his own benefit.13

\_Acts of a subagent.--\_An act of a subagent, within the scope of the authority of the agent, may be adopted by the latter.14

(SS 2) B. Apparent authority and unauthorized or wrongful acts of agent.15--See 11 C. L. #9--The principal is bound by all acts of the agent within the apparent scope of his authority,16 apparent authority being such as he appears to have by

buying and shipping cotton held to have authority to bind principal by contract to 112 SW 220.

store cotton on railroad platform at his own risk from fire. Id. Sale agent of grain

attorney at law in Texas. Harkins v. company to buy and sell grain had implied power to order copy of investigation and report of interstate -commence commission relative to grain rates, since knowledge of rates was essential in dealing in grain. Law Reporting Co. v. Elwood Grain Co. \[Mc. App.\] 115 SW 475. Agent having authority as to matters covered in account has power to bind principal by account stated by him. Such authority need not be in writing. Sariol v. James McDonald Co., 127 App. Div. 648, 111 NYS 796. Superintendent of trucking had no implied authority to offer reward for recovery of property action from employer. Rubenstein v. Frost, 118 NYS 681. One employed to drive horses

11 n races has no Implied power to receive a purse won in a race; payment to driver not payment to owner. Snow v. Wathan, 112 NYS 41. Not extended beyond what is given in terms and what is necessary and proper to the carrying out of the authority given. Califf v. First Nat. Bank, 37 Pa. Supert. 412.

8. Aqueduct commissioners, under Laws 1883, p. 666, c. 490, would have power to make contract under seal, if this was customary. Peterson v. New York, 194 N. Y. 437, 87 NE 772. Authority to do an act clothes the agent with apparent authority to do the things usual and necessary for the accomplishment of the act authorized. McDonald v. Pearre Bros. & Co., 5 Ga. App. 120, 62 SE SE 30. Agent to negotiate sale has power to employ attorneys to close title. Ekan v. De Jonge, 113 NYS 787. Where commercial traveler has power to receive and transmit orders but not to close contracts, he has authority to transmit the buyer's instructions to the seller as to mode of shipment, by sea insured, it being customary for wholesaries to ship goods in this way when so instructed. McDonald v. Pearre Bros. & Co., 5 Ga. App. 130, 62 SE SE 800. Where stranger struck by train re-qulred immediate medical attention, conductor of train had implied authority, growing out of emergency, to employ surgeon and blind company for his services.

reason of the authority actually exercised by him,17 with the knowledge and acquiescence of the principal,18 the basis of the binding force of apparent authority being estoppel to deny authority which the principal has caused or allowed the agent to exercise.19 This estoppel must be based on conduct of the principal; 20 apparent or implied authority cannot be assumed from acts and declarations of the agent alone.21 Authority conferred upon an agent, whether general or special, is to be construed as including only the usual means appropriate to the end.22 Even

17. Where dealings between parties were -- like purchases in future, before notice of such as to show apparent authority in defendant's chauffeur to contract for supplies and work on automobile, and defendant accepted benefits of contract, he was liable to plaintiff for their value. Lozier Motor Co. v. Ziegler, 115 NYS 134. Where husband had represented wife in all transactions concerning notes, she was bound by his action, in suit on notes in denying any knowl-edge of counterclaim, part of which was allowed, and could not subsequently hold bank accountable for full amount of notes.

Schoreder V. State Bank \[Iowa\] 121 NVP 506. Where agent said machinery, took notes and mortgage in payment, collected some notes and started foreclosure, he had apparent general authority to make settlement whereby mortgaged and other prop-erty was taken for debt. Northwest customers, could not show want of actual Threat Co. v Dahlgren, 50 Wash, 325, 97 P 228. Seller shipped engine consigned to itself, care of its agent, and agent employed assistant, unloaded and set up engine, and save it test. Held, he was acting within authority; principal liable for free caused by agents' negligence. Autlman & Taylor Mach. Co. v. Gay, 108 Va. 647, 62 SE 946. Agent for sale of machinery and twine, authorized to make contracts, settlements, collect balances, etc, has power to enter into contract with customer relieving him or excess of twine bought by him, by authorising shipment to different persons. Herpolisheimer v. Acme Harvester Co. \[Neb.\] 119 N NVP 30. Where owner of trunk required express company to deliver it, and maid was authorized to deliver trunk to express company, maid had authority to make contract as to carriage including limitation of liability contained in receipt. Wrigh v. Fargo, 59 Misc. 416, 112 NYS 358. Driver for express company, who collected goods for shipment, had authority to bind company by statement, that package was properly addressed and would reach its destination, made when receiving it. Magnus v. Platt 62 Misc. 499, 115 NYS 824. Local insurance agent took additional premium with knowledge that insured carried other insurance, and promised to indorse consent of company to additional insurance on policy, but failed to do so. Held, this was waver of provision requiring written consent indorsed on policy. Eagle Fire Co. v. Levallement (F1a. 47 B 947.

18. Apparent authority means such authority as the acts or declarations of the principal, not the agent, give the agent the appearance of possessing. Farmers' Co-op. Shtipping Assn v. Adams Grain Co. \[Neb.\] 112 NV 55. Slence of principal, who has knowledge of acts of agent in buying goods for sale, is evidence of authority to make general discretion must be exercised in a reasonable manner and cannot be resorted to to justify acts which the principal could not be presumed to intend.28 The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence and is a question of fact for the jury.29 One dealing with an agent is bound to make reasonable inquiry as to his authority 26 especially where the agency is special 27 or limited,28 or where there are circumstances calculated to put him on inquiry,29 and cannot rely on an agent's apparent authority when he has notice of a limitation upon the agent's powers.29 An agent cannot bind his principal in matters where he is adversely interested 29 or where he is secretly acting for the other party to the transaction,30 and a third person is presumed to know the agent's lack of authority in such cases.40 Secret instructions to the agent, unknown to a third person, will not affect the binding force of acts within the agent's apparent authority."

_Unauthorized and tortious acts. \[58\]_ 11 C. L. 71.--The principal is responsible for wrongful and tortious conduct of the agent in the course of his employment and within the apparent scope of his authority. \[54\] The principal is of course not liable where such acts are unauthorized and outside the course and scope of the agent's employment. \[33\] Misrepresentations and fraud of an agent, while acting for the principal, with authority, \[88\] makes the latter responsible \[87\] and invalidates a contract for the principal which was induced thereby, \[88\] though the principal was per-

\*\*35. Where agent had apparent authority to arrest debtor's wife, and corporation to make purchase, principal was liable not-

would not be liable unless it ratified their withstanding secret instructions to agent act. Powell v. Champion Fibre Co., 160 to buy from another. Mississippi Valley N. C. 16, 43 SE 159. Note given for benefit of plaintiff, as compromise in bastardy pro-

S94. Purchase not affected by secret instructions or communications to agent as

agreement by plaintiff's guardian and at-

to conditions on which deed was to be de-

forney that she would not testify in prosec-

lived. Thornton V. Pinchekarla \[41a\]. 47 S

cution against putative father for rap,

289. Where oral contract made by agent

when plaintiff had no knowledge of such

was within ecops of his apparent authority,

agreement. Griffin v. Chriswisser \[Neb.\] it was immaterial that agent had instructe-

tions to make written contract, when other

of authority of detective. Kehoe v. Mar

party had no notice of limitation on his

shal Field & Co., 114 Ill. App. 140. A prim-

powers. Gooding v. Moore, 150 N. C. 159.

cipal is not liable for the malicious acts

63 SE 895. Where company authorized au-

dict to settle claim of servant for injuries,

thority. Equitable Life Assur. Soc. v. Les

and servant had no knowledge of any lim-

taton on auditor's power, an agreement

made with auditor to pay servant sum of

charge of property, but who had no power

money and care for him until well, was

binding on company. Maloney v. Hudson

hot fraud of owner, who afterwards sold

River Water Power Co., 117 NTYS 601.

Where agent delivered contract for ex-

change of property, in violation of secret

133, 108 XYS 894.

haructions from principal, but other party

had notic of agent's authority, and not of

secret instructions, agents act bound prim-

cipal. Hawes v. Birkholtz, 114 NTYS 165.

34. Principal liable if agent was acting

for him, within scope of employment,

though act unauthorized. Wallace v. John

A. Casey Co., 132 App. Div. 35, 116 NTYS 894.

One who sends another to levy under dis-

tress warrant, which he sues out, is liable

for acts done while executing their au-

thority, Jones v. Parker, 81 S. C. 214. 64.

SE 261. Slander uttered by manager of

foreign corporation, with general powers,

while engaged in adjusting account with

person of whom slanderous words were

spoken, such words relating to matter in

hand, made corporation liable. Payton v. People's Credit Clothing Co. \[Mob. App.\] 118

SWV 531. Principal may be liable although

not a joint tort feaser. Epstein v. Gordon,

114 NYS 438. In action by patron of theater

for tort of shaker, it was held that question

of whether the servant was acting within

scope of his authority was for jury. Id.

35. Insurance company not liable for

slanderous statements by solitcitors, an-

l. Principal liable for fraud of agent who

authorized and not within scope of their

employment. Kane v. Boston Mut. Life

Insc. Co., 200 Mass. 265, 86 NP 302. Meer

action brought in time. Smith v. Gray

fact that insurance solitcitors s slameded

plaintiff, while employed by defendant,

rescind where vendor's agent concealed

would not make defendant liable, where

agency and fact that the would receive com-

there was no proof that statements were

in course and within scope of solitcitors'

does as joint purchaser with them. Houts

employment. Id. Agents of corporation

v. Scharbauer, 46 Tex. Civ. App. 605, 19 Tex.

authorized to collect bille had no authority

Ct. Rep. 556, 103 SWV 679.

sonally innocent \[30\] and the agent violated instructions \[40\]. The general rule is that a principal may recover the value of his property from a third person to whom it has been transferred by an agent acting without authority \[41\]. But where an agent is vested with apparent authority and held out by the principal as having authority to use labor and materials of his principal, the principal cannot recover therefor from an innocent third person, though the agent acted wrongfully \[42\]. Where an act is that of an agent or manager to whose charge the general management of the particular business, in the conduct of which the act complained of was done, the principal is liable in a proper case \[43\] for punitive as well as for compensatory damages, even though the agent may have violated general instructions of the principal \[44\]. For personal negligence of an agent, he is primarily and the principal only secondarily liable and an exoneration of the agent exonerates the principal \[45\].

(SS 2) _C. Particular kinds of agencies \[46\]._--Agency may be general or special. It is special when both the end and the means are specific \[47\]. It is the duty of one dealing with a special agent to ascertain the extent of his authority before dealing with him \[48\], otherwise he deals with such agent at his peril, and the principal will not be bound by acts exceeding the agent's actual authority \[49\]. Buying and selling agents have no power to deal except upon terms fixed by the principal \[46\]. General authority as salesman does not include implied authority to sell goods upon extraordinary terms \[51\]. An agent authorized to sell property has no implied authority to assign to one with whom he makes a contract the rents from the property pending negotiations or until the final transfer \[52\]. Agent employed to sell real estate,

30. An innocent principal cannot assert any rights or retain any benefit upon a contract procured by the fraud of his agent. Reitman v. Fiorifle \[N. J. Err. & App.\] 72 A 74. Principal responsible for false representations made by selling agent acting within scope of his employment or authorized to make them regardless of whether agent or principal knew of falsity of representations. Wimple v. Patterson \[Tex. Civ. App.\] 117 SW 1034. Principal cannot retain property conveyed to him by reason of agent's false representations and at same time repudiate responsibility for fraud. Shopbell v. Boyd \[Cal. App.\] 98 P 69.

01. Principal is responsible for fraudulent or wrongful act of agent, done in course of his employment, though agent violates express instructions in doing it. Brown v. American Tel. & T. Co. \[S. C.\] 63 SE 744.

41, 42, Wilcoxon-Rose Const. Co. v. Evans \[Cal. App.\] 98 P 83.

43. Rose v. Imperial Engine Co., 127 App. Div. 885, 112 NYS 8.

01. Labability for punitive damages sustained .where agent wrote libelous letter. Rose v. Imperial Engine Co., 127 App. Div. 885, 112 NYS 8.

01. Judgment for agent and against principal cannot be sustained. Bradley v. Rosenthal, 154 Cal. 420, 7 P 875.

01. See 11 C. L. 72: also such subjects as Brokers, 11 C. L. 446; Insurance, 12 C. L. 252: Factors, 11 C. L. 1454; Attorneys and Counselors, 11 C. L. 332.

Search Note: See Principal and Agent, Cent. Dig. **83** 245-494; Dec. Dig. **83** 91-137;

1 A. & E. Enc. L. (Zed.) 1003; 6 Id. 223.

See, also, Clark & S. Asgenov, **83** 225-287.

47. Authority to surrender note and re- and not authorized to execute a contract of sale or conveyance, is only an agent to find a buyer.68 An agent authorized to deliver ded has power to receive payment.54 Under authority to convey, an agent cannot sell otherwise than for cash, unless specially authorized, and cannot transfer as a gift.68 Power to sell land as though it were the agent's own was held to confer authority to sell on credit, and dispose of proceeds as he saw fit.69 Authority by one cotenant to another to negotiate a sale of the property includes authority to contract to pay a broker a commission to find a buyer.67 An agent authorized to rent is empowered to make the usual covenant for repairs,68 and has authority to give the tenant notice to quit.69 An authority to buy cannot properly be inferred from an authority to sell.69 Authority to collect a debt does not authorize acceptance of anything but money.61 Authority to collect certain notes does not confer authority to collect all notes of a series.62 Special authority to collect a note does not authorize the agent to endorse the check given in payment.63 Authority to reloan money implies authority to collect the debt about to mature.64 An agent who has authority to make a deposit in a bank has no implied authority to draw it out.68 An agent as such has no power to mortgage his principal's property or indorse or issue accommodation paper binding upon the principal.69 Such acts must be specially authorized.69 An agent authorized to make a contract has no authority to subsequently consent to its rescission.69

(SS 3) _D. Ratification by principal.69--See 11 C. L. 74_--Ratification, as it relates to the law of agency, is the express or implied adoption of the acts of another by one for whom he assumes to act,70 and, when shown, is equivalent to original authority,71 the act ratified being binding upon the principal 72 and the third person.79

53. Manker v. Tough \[Kan\] 98 P 792.

01. Babson v. Cox, SS 29 App. D. C. 542.

01. General power of attorney d1d not authorize execution of quitclaim dead for "$1 and other considerations." Welice v. Waekershauser \[Iowa\] 120 NNV 77.

01. Neill v. Kleiber \[Tex. Civ. App.\] 112 SVW 694.

01. Lee v. Conrad \[Iowa\] 117 NNV 1096.

01. Authority to rent held to include authority to make lease with such conditions as are customary in leases and to bind principal thereby; hence, principal authorizing agent to agree to make such repairs as was necessary to secure tenant held table for value thereof. White v. Clow, 135 Ill. App. 464.

01. Benton v. Stokes, 109 Md. 117, 71 A $32.

01. Keyes & Co. v. Union Pac. Tea Co., 81 Vt. 420. 71 A $01.

01. Power to collect a debt does not confer authority to receive property in lieu of money in payment. Stringfellow v. Braselton \[Tex. Civ. App.\] 117 SVW 204. Agent to collect rent has no power to accept any but cash payment. National Loan & Inv. Co. v. Biesadistic \[Iowa\] 119 Nv 77.

01. Winer v. Bank of Blytheville \[Ark.\] 117 SVW 22.

01. Robinson v. Bank of Winslow, 42 Ind. App. 350, 85 NE 793.

01. Wales v. Mower \[Colo.\] 96 P 971.

01. Second Nat. Bank v. Gibboney \[Ind. App.\] 87 NE 1084.

66, 67. Roberts v. Little \[N. D.\] 120 NNV 66.

68. Fuller v. Samuels, 137 Ill. App. 536.

01. Search Note: See notes in 7 C. L. 82;

4 L. R. A. (N. S.) 431; 6 Id. 311; 16 Id. 693;

5 A. S. R. 109. 618; 69 Id. 638.

13 Curr. L. 6,

and not authorized to execute a contract of sale or conveyance, is only an agent to find a buyer.69 An agent authorized to deliver ded has power to receive payment.69 Power to sell land as though it were the agent's own was held to confer authority to sell on credit, and dispose of proceeds as he saw fit.69 Authority by one cotenant to another to negotiate a sale of the property includes authority to contract to pay a broker a commission to find a buyer.69 An agent authorized to rent is empowered to make the usual covenant for repairs,68 and has authority to give the tenant notice to quit.69 An authority to buy cannot properly be inferred from an authority to sell.69 Authority to collect a debt does not authorize acceptance of anything but money.61 Authority to collect certain notes does not confer authority to collect all notes of a series.69 Special authority to collect a note does not authorize the agent to endorse the check given in payment.69 Authority to reloan money implies authority to collect the debt about to mature.69 An agent who has authority to make a deposit in a bank has no implied authority to draw it out.69 An agent as such has no power to mortgage his principal's property or indorse or issue accommodation paper binding upon the principal.69 Such acts must be specially authorized.69 An agent authorized to make a contract has no authority to subsequently consent to its rescission.69

(SS 3) _D. Ratification by principal.69--See 11 C. L. 74_--Ratification, as it relates to the law of agency, is the express or implied adoption of the acts Ratification may be implied from circumstances,\[74\] or subsequent acts or conduct of the parties,\[75\] such as the acceptance by the principal of the benefits derived from the agent's unauthorized acts,\[76\] bringing suit on the agent's contract,\[77\] or failure to repudiate or object to the agent's acts\[78\] promptly\[79\] or within a reasonable time,\[80\]

Rutgers Fire Ins. Co., 193 N. Y. 323, 85 NNE 1087.

74. Ratification of agent's acts in negotiations leading to alleged accord and satisfaction held for jury. Perkins Co. v. Willcox \[Ga.\] 65 SE SE 831.

01. Where loan by executive committee of political party was reported to national convention and it acquessed therein, this amounted to ratification of loan. SIFF v. Forbes, 117 NYS 143. Where selling agent made preliminary contract with buyer but broke off negotiations on buyer's refusal to sign formal contract, and selling corporation's president told buyer that agent's action was final, agent's contract was binding on seller. Bitrick v. Consolidated Imp. Co., 51 Vash. 469, 99 P 203. Question being whether third person, who took mortgaged chatties under assignment of junior mortgage, was agent of junior mortgage, but letters by latter to attorney of senior mortgage, who claimed goods or damages containing admission of responsibility, was competent to show ratification. Henderson Law Co. v. Hinson \[Ala.\] 47 S 717. Whether one partner ratified purchases made by other held for jury. Hoffmaster Sons Co. v. Hodges, 164 Mich. 641, 15 Det. Leg. N. 926, 118 NEV 484.

No ratification Insurance company could not be held to have ratified acts of solicitors in making slanderous statements against another, where superintendent of agencies disapproved of them, by letter, though company took no positive action and though it received some business which slandered person lost, no knowledge of this by company being shown. Kame v. Boston Mut. Life Ins. Co. 200 Mass. 265, 86 NE 302. Where payee of note sent agent to collect it, and agent received check, indorsed it and kept proceeds, payee's action in claiming check and using bank was repudiation, not ratification. agent's act in endorsing it. Robinson v. Bank of Vinslow, 42 Ind. App. 350, 85 NNE 793. Agent's unauthorized contract for construction of skidway, not ratified by use of skidway, this being necessary in operation of mill. Ayer & Lord Tie Co. v. Young \[Ark.\] 117 SW 1080.

76. One who accepts fruits of compromise by agent, with full knowledge, ratifies and is bound by it. Beagles v. Robertson \[Mo. App.\] 115 SW 1042. Where agent for collection took notes in settlement, acceptance of notes by principal was ratification of unauthorized act, and maker of notes could not complain. Billingsley v. Benefield \[Ark.\] 112 SW 1885. Evidence held to show ratification of agent's act in accepting composition with debtor, principal having received and kept cash and notes. Warshawsky v. Bonewur, 130 App. Dlv. 250, 114 SNYS 685. Accord and satisfaction between debtor and creditor's agent ratified where creditor received and appropriated goods and money sent by agent and received by him in settlement. Mayfield Woolen Mills Co. v. Long \[Tex. Civ. App.\] 119 SW 908. Acceptance by insured of agent's check for unearned premium was ratification of agency for insured. Swing v. Kaufman, 115 NYS 143. Principal ratified contract of sale by agent by retaining order and notes given by buyer. Hansen v. Rolison \[Mich.\] 16 Det. Leg. N. 62, 120 NW 574. Where proporsty sold conditionally was accepted and used by buyer, it was immaterial that the written contract was signed by an agent for buyer, whose authority was not proved. In re Cohen, 163 F 444. If insurance comchapety rejects policy applied for through one not its agent, applicant could not recover premium from company, but if company should accept premium and issue policy, it would thereby ratify act of person pro-emptage, using policy, though not an authorized agent. Michigan Mut. Life Ins. Co. v. Thompson \[Ind. App.\] 86 NE 503. Ratification by adopting and acting on contract by agent. Gehm v. Chicago & N. R. Co. 143 Ill. App. 658.

01. Corporation ratified act of agent in illegal transaction when it kept fruits thereof and brought suit on note which was part of it. Twentieth Century Co. v. Quilling, 136 WIs. 481, 117 NEV 1007. Landford, declaring in petition that she made lease and gave notice to quit, thereby ratifies her agents acts in doing so. Benton v. Stokes, 109 Mo. 117, 71 A 532. Though plaintiff first learned at trial of action on note that payment claimed that payee's agent had made special agreement as part consideration, he could not proceed and rely on note without being bound by such special agreement, if made; could not deny agent's authority. Ownesboro V'agon Co. v. Wilson & Co. \[Kan.\] 101 P 4.

01. Principal must repudiate or disaffirm an unauthorized act if he desires not to be bound thereby. Lowe v. Benz \[Minn.\] 119 NEV 42. Bond was executed and placed in hands of attorney with instructions not to deliver to oblig
    What is a reasonable time being, in a particular case, a question for the jury.\[51\] There can be no ratification without full knowledge of all material facts.\[82\] A principal cannot accept and ratify an unauthorized contract by receiving benefits thereunder in so far as it is beneficial to him, and disaffirm as to the balance of it,\[83\] and this rule applies, though knowledge by the principal of all the terms and conditions of the contract be not shown.\[84\] But acceptance of the benefits of a contract, made for a lawful consideration and apparently valid, is not a ratification of unlawful conditions made by the agent and unknown to the principal.\[85\] A contract contrary to public policy cannot be ratified.\[86\] A ratification cannot be effective unless the principal, at the time of ratifying, has the power to do the act ratified.\[87\] Ratification by a corporation cannot be inferred from acts of the very officer who did the unauthorized act.\[88\]

(SS 2) \_E. Undisclosed agency.\[89\] See 11 C. L. \[76\]\_Where a simple contract, or or appreciate what she was doing. Welke V. Wackershauser \[Towa\] 120 NPV 77. Where agent authorized to accept delivery of notes unconditionally accepts delivery upon conditions, principal does not ratify by accepting notes without knowledge of one not under seal, is made by an agent in his own name for the benefit of an un-disclosed principal, either the agent or principal may sue " or be sued ": thereon, parol evidence being competent to show who was the real party in interest," unless the written contract itself expressly provides that none but the party therein named shall be liable." But in the case of negotiable instruments," specialities," and contracts under seal," parol evidence is incompetent to vary their express terms," and hence only the parties thereto can sue or be sued thereon. Though an undisclosed principal cannot be held on a negotiable instrument given by the agent, suit

SS 495-527; Dec. Dig. SS 138-146; 1 A. & E. Enc. L. (2ed.) 1139, 1168. See, also, Clark & S. Agency, SS 467-464; 528-542. 90. Either many sne. Anderson v. Stewart, 108 Md. 340, 70 A 228: Oliver Refining Co. v. Portmouth Cotton Oil Refining Corp. \[Va.\] 64 SE 56. Undisclosed principal may sue. Batley v. Lunt, Moss & Co. v. McNutt, 13 A 353: Cleveland, etc., R. Co. v. McNutt, 14 B 111. App. 66; Block v. Meridian \[C. C. A\] 169 F 516: Wilcox-Rose Const. Co. v. Evans \[Cal. App.\] 88 P 33: Clubb v. St. Louis & S. F. Jr. Co. \[Mo. App.\] 117 SW 110. Real party in interest may sue though contract is made by agent in his own name. Cole v. Utah Sugar Co. \[Utah\] 99 P 68L Undisclosed principal may sue on contract made by agent with telegraph company. West. \[Cunion Te\]. Co. v. Northcut \[Ala.\] 48 S 553. Undisclosed principal may sue for failure to deliver message to his agent, where message is sent by his agent. West. Western Union Tel. Co. v. Walker \[Ala.\] 48 S 102. Undisclosed principal of sender of telegram may sue for delay in delivery, but cannot recover damages for mental anguish, Western Union Tel. & T. Co. v. Potts \[Tenn.\] 113 SW 789. Where agent bought goods in own name and directed contract to be made in name of partnership, explaining that this was for convenience in shipping and handling, he was, as to one to whom contract was sent, an undisclosed principal. Anderson v. Stewart, 108 Md. 340, 70 A 228. Evidence held to show sale by plaintiff to defendant, not sale by plaintiff to his agent and by the latter to defendant. Palmer Fertilizer Co. v. Dupont \[Tla.\] 47 S 928. Agent may sue on contract made in his own name. Clubb v. St. Louis & S. F. R. Co. \[Mo. App.\] 117 SW 110. 91. See, also, post, SS 3, for liability of sugar Refining Co. v. Helvetia Swiss Fire agent. Where agent shares contract, he is bound as well as his principal. Eddy v. American Annument Co. \[Cal. App.\] 89 P 1115. Party making contract as principal may be sued by other party, though he in fact only agent. Fitzpatrick v. Manheimer \[Mich.\] 16 Det. Neg. M. 457, 122 NWV 83. One dealing with agent of undisclosed principal may elect to hold principal, if election is made within reasonable time after disclosure. Mississippi Policy Const. v. closed principal, could sue thereon for rents, though lesser know who owner was before benefit though agent contracted in his own name. Cooper v. Ratliff \[Ky.\] 118 SW 748. 97. Where an instrument is under seal, it cannot be maintained by parent undisclosed principal on written contract. Coaling outhers. Peterson v. New York, 19+ N. Y. SE 987. 100.

may be maintained against the principal for the original consideration." In an action by an undisclosed principal on a contract made by the agent, the defendant is entitled to be placed in the same position at the time of the disclosure of the principal as if the agent had been the real contracting party," and may in such action use, as a set-off a claim against the agent,1 or may prove payment to the agent, without knowledge of the agency, as a defense.2

A party to a contract has a right to know with whom he deals unless he consents to deal with an agent in behalf of an undisclosed principal." He has a right to rely upon representations made as to the identity of the other party to the contract, and if deceived by such representations he has a right to rescind.4

(SS 2) \_F. Notice through agency.\_5-See 11 C. L. 17--Notice to or knowledge of an agent 6 or a subagent,7 given to or acquired by him in the course of his employment, and relating to matters within the scope of his actual or apparent authority,8

98. Notes signed "as trustee," signer and 111 670-690; Dec. Dig. 1177-182; 1 A. & E. others receiving consideration. All undisclosed principals could be used in original consideration. Coaling Coal & Coke Co. v. Howard, 130 Ga. 807, 61 SE 987.

01. Anderson v. Stewart, 108 Md. 340, 70 A 228; Painter Fertillier Co. v. Dupont \[Fla\]. 47 S 928. If agent delivers property to carrier in his own name, not disclosing his principal, the latter is bound by any legal contract made by carrier with agent, but, if goods are received as those of principal, no special contract with the agent is binding on the principal, unless known to or artifiled by him. Wellborn v. Southern \[Fla\]. In California, where principal employs secret agent, who sells-fruit in his own name, principal cannot recover from innocente goods sold by agent as his own. Guggenheime & Co. v. Youell \[Vwash.\] 101 P 711.

L. Elability of agent to other party could be set off against claim by principal on agent's contract. Deane v. American Glue Co., 200 Mass. 459, 86 NE 890. Where buyer from agent had no knowledge of agency, but dealt with him as principal, buyer could, in action by owner for price, set off claim by buyer against agent. Winslow Bros. Co. v. Staton, 150 N. C. 264, 63 SE 950. Action for price of nude sold to defendant by plaintiff's agent for debt due defendant from agent. Defendant could show that agent was in business of selling rules for himself, and that he had no no-tice of agency. Id.

2. Where agent, really acting for plaintiff, sold glue to defendants and failed to disclose agency, and defendants paid agent, without knowledge of agency, plaintiff as principals could not recover from defendants, agent not having exceeded authority. Deane v. American Glue Co., 200 Mass. 459, 86 NE 890. Payment to member of partnership with whom defendant supposed he was doing business relieved him. Plaintiff could not afterwards recover, being undisclosed principal. Brodzak v. Robinson, 114 NTS 113.

S, 4. New York Brokerage Co. v. Wharton \[Towa\] 119 N NV 969.

S. Search Note: See notes in 21 L. R. A. 940; 24 A. S. R. 228; 3 Ann. Cas. 980.

See, also, Principal and Agent, Cent. Dig. 1177-182; 1 A. & E.

and before the transaction is concluded,\* is notice to the principal,**10** whether actually communicated to him or not,\*\*11 \*\*unless the agent has a personal interest in the subject-matter adverse to that of the principal,\*\*12 \*\*or unless the matter in question is one involving the good faith and conduct of the agent toward the principal.\*\*13 **Knowledge acquired before the commencement of the agency is sometimes imputable to the principal.**14****

**(SS 2)** \_G. Mode of executing authority.\_15\_\_See 11 C. L. 70\_\_If it is doubtful from the circumstances, or the instrument executed, whether grantor intended to execute a power possessed by him, it will not be held that the act or conveyance was an execution of the power.\*\*16\*\***But if the intent to execute the power and convey the principal's interest, be clear, it will be so construed, regardless of informality in its execution.**17****

681, 114 SWW 1117. Agent of railroad company to inspect and take up cross ties was entrusted by vendor with duty of measuring. Inspecting and taking up such ties for him; held notice to agent while so en-gaged of claims and rights of true owner was notice to vendor. Black & Sons v. Johnson \[W. Va.\] 64 SE 626. Agent authorized to sell goods and collect for them used printed form furnished by seller containing provision that quality of goods was warranted for limited time, and that defective goods would be made good or replaced, if notice of defects was given. Heid, notice of defects to agent was notice to principal. Buckeye Saw Mfg. Co. v. Rutherford \[W. Va.\] 64 SE 444. Where brokers were instructed to procure insurance to a certain amount, and procured some policies which companies cancelled, notice of cancellation to brokers, before they had ceased to act for insured, was notice to latter. Northern Assur. Co. v. Stanford Leather Co. \[C. C. A.\] 165 F 602.**Principal net bound: Where transfer company was in habit of hauling goods for consignee, company was consignee's agent only as to goods actually hauled. Notice to company of arrival of goods was not notice to consignee, unless expressly communicated to consignee. Hockfeld V. Southern R. Co., 150 N. C. 419, 64 SE 181. Though arrangement had been made between parties to pay debt by conveying land, yet previous authority to notary before whom deed was acknowledged to collect the debt would not authorize him to take the deed, and notice to him that deed was intended as mortgage, and that married woman, one of grantors, was not examined privily, was not notice to creditor. Stringfellow v. Braselton \[Tex. Civ. App.\] 117 SW 204.** **0. Notice to agent respecting matter within scope of his authority is notice to principal If given before transaction is ended or soon enough to be effective. Black & Sons v. Johnson \[W. Va.\] 64 SE 626.** **10. Knowledge of general agent, knowl-edge of company. Lindquist v. Northwestern Port Huron Co. \[S. D.\] 117 NW 365.** Notice to salesman that partner had retired from firm was notice to his principal Straus, Gunst & Co. v. Sparrow & Co., 148 N. C. 309, 62 SE 308. One who admits agency of another in purchasing land for him is bound by agent's knowledge of it.\*\*
(SS 2) $H$. Remedes, pleadings, procedure and proof.\[18\] See 11 C. L. 19--The agent cannot ordinarily maintain an action for a known principal.\[19\] To bind an undisclosed principal, he must be shed. Property of the principal cannot be taken and sold in satisfaction of a judgment against the agent.\[20\]

\_Pleading.\_See 11 C. L. 17--Where the cause of action is based on acts of an agent, the agency,\[31\] and facts showing responsibility of the principal "2" must be alleged. An allegation that a contract was made with a party is the same in law as an allegation that it was made with the agent of the party.\[23\] Where a contract appears on its face to have been made by an agent personally, a complaint based thereon must allege the making of it by the principal through the agent.\[24\] An express allegation that the principal with knowledge of all the facts ratified the act of the agent is sufficient without alleging the manner of ratifying.\[25\]

\_Burden of proof and sufficiency of evidence.\[26\]--The burden is upon one seeking to hold a principal for the act of an alleged agent to prove the agency,\[27\] and that the act relied upon was within the scope of the agent's authority.\[28\] Where it is proved that an act authorized by a power of attorney is done pursuant to the power, one who asserts that the power was revoked before the act was done has the burden of proving such revocation.29

\_Evidence, admissibility.\_See 11 C. L. 80--Declarations and admissions of an agent are competent against the principal only when there is other proof of the agency 30 and when they are made in the course of the agent's employment and relate to matters then being done by the agent,31 such matters being within the scope of his authored

Evidence sufficient, aside for agent's own

writer for defendant, latter not being consistent, to prove his authority, to make

nected with it in any way. Deane v. Ameri-contract in suit. Kessler & Co. v. Pareilus

can Glue Co., 200 Mass. 459, 86 NE 890. Excluding

\[Minn\_\] 119 Nvv 1069. Evidence held to

physons of personal malice by one not show that one who collected ren

on

shown to be defendant's agent, inadmissible

pliano was plaintiff's agent with authority

in action for false imprisonment and mal-

to make such collection. Bennett Piano Co.

v. Science, 130 App. Div. 231, 114 XYS 324.

Civ. App.J. 118 SWV 1077. Tax list, not signed

Authority of one employing man for de-

fendant held not to have been shown, so as

to make defendant liable as master to one

employed. Nichols v. Oram \[N. J. Law\] 71

A 54. Persons who made contract for sleep-

ing accommodations for passenger on train

held to have had authority to bind compeny. Smith v. Pullman Co. \[Mo. App.J 119

## 13 Cur. Law. AGENCY SS 2H.

ority.\[32\] As has already been observed, neither the fact of agency nor the extent of an agent's authority can be shown by proof of acts and declarations of the agent,\[33\] but this rule does not make the agent an incompetent witness to testify to these matters.\[34\] A power of attorney is competent evidence for the party claiming under it.\[85\] An admission of the party sought to be bound, tending to show the agency, is competent.\[46\] The party sought to be bound may introduce evidence to show the status and authority of the alleged agent.\[7\]

_Questions of law and fact.\[86\]_ in C. L. \[30\]\_--Both the fact of agency,\[88\] and the extent of the agent's authority\[30\] are questions for the jury, unless the facts are un-disputed, or unless they depend solely upon construction of a written instrument.\[46\]

of motorman, after accident, as to how it \[ranch owner, being mere narration of past occurred, incompetent against railway company. Morse v. Consolidated R. Co. \[Conn.\] 100 P 52. Authority of claim agent of ex- 71 A 583. Declaration of driver of team, press company sufficiently shown; state- \[nents by him in discussing claim compenectomy of accident or of his own possession, incompetent. Cohn & Goldberg Lambert Co. Co. \[N. J. Law\] 71 A 683. Declarations and \[nust ded, cannot, as agent, affect principal\]'s rights by making admissions as to past transactions. First Nat. Bank v. Authority to act, and give information, and \[nust\]. 86 when made while he is acting as agent, with authority, and when relating to matters then being done. Case Flow Works v. \[nust\]. 88 P 781.

been executed and transaction closed. Wroelsey v. Haynes \[C. C. A.\] 165 F 391.

Statement of manager prior to making alleged settlements, as to condition of other party, not competent to impreach settlement 55.

on ground of such party's incompetency, not being part of reste. Wells v. \[nust\]. 114 SW 737.

from which third person, as agent, third person has been called \[nust\]. 114 SW 853. Declarations of agent competent against principal only when made while acting as such, within scope of authority, Tablin v. Marcy, 81 Vt. 428, 71

119 SW 315.

A 72. Admissions and declarations of agent \[nust\]. 114 SW 737.

inadmissible without proof of authority to that certain person was plaintiff's repre- \[nust, Ref. C. Fuller Co. v. Pennsylvania\]. 113 NYS 1001. Alleged admission by agent incompetent unless agent has been connected with transaction to which it relates and his authority in matter shown. Blanchard-Carlille Co. v. \[nust\]. 114 SW 151. State- \[nust\]. 115 SW 315.

ments of employee not competent when nature of authority and duties was not shown.

Corkran v. Taylor \[N. J. Law\] 71 A 124.

When authority of agent was not shown to extend to affairs of certain office, his declarations concerning transactions at that office was not competent against principal.

Yashimi v. U. S. Express Co. \[N. J. Law\] 73

A 45. Agents for care and rental of land, which was in actual possession of tenants, could not bind owner by manufactured ad- \[nust\]. 114 SW 71 A 12.

missions that the claimed only to certain line, nor by act of moving fence. William Cameron & Co. v. Blackwell \[Tex. Civ. App.\] 116 SW 856. Where order taken by agent showed on its face that acceptance by seller was necessary, authority of agent being limited to recommendation of acceptance, what agent said before signing order could not bind seller. Bronson v. Weber Implicament Co. \[Mo. App.\] 116 SW 20. Declarations of ranch manager, while barn was burning, that he had set fire which later spread to barn, was incompetent against

## 3 Rights and liabilities of agent as to third persons

See 11 C. L. 81--An avowed agent for a disclosed principal incurs no personal contractual liability to third persons by reason of acts done within the scope of his employment \[42\] although he may expressly assume personal liability \[43\]. The burden is ordinarily upon the party asserting personal liability to prove such promise of the agent \[44\]. But, obligations assumed by an agent in his own name toward one who deals with him on his own credit, even though in the course of dealings for the benefit of the principal, bind the agent alone \[45\], and the burden is upon the agent to show that the principal is liable \[46\]. Where an agent induces another to enter into a contract by means of false representations, the agent does not become personally liable on the contract \[47\], but he, as well as his principal \[48\], is liable in tort if he knew that his representations were false \[49\]. If he honestly believed his representations to be true he is not liable

### 102 P 608

Whether one had authority as \[Tex. Civ. App.1 115 SW 673. Plaintiff sold agent of owner to sell property, for jury. goods to C, on C's responsibility, thinking bosswell v. Thompson \[Ala.\] 49 S 73. Whether one who commited trespass was acting as authorized agent of corporation, be for goods, even though he represented for jury. Union Naval Stores Co. v. Pugh \[Ala.\] 47 S 48. Whether persons assuming to act for defendant were acting within real or apparent scope of their authority, for jury. Campbell v. Order of Washington \[Vash.\] 102 P 410. Whether defendant's agent had power to give plaintiff contract for exclusive sale of goods in certain territory held for jury. De Laval Separator Co. v. Sharpless \[Iowa\] 120 NW 657. Whether husband was acting as general or special agent for wife for jury, error for court to intimate an opinion in charge. Garbutt \[Lumber Co. v. Prescott, 131 Ga. 326, 62 SE 228. Whether branch store manager had so conducted business, with knowledge of his principal, that he had implied authority to buy goods for sale, held for jury. Keyes & Co. v. Union Pac. Tea Co., 81 Vt. 420, 71 A 201. Whether certain person was agent for sale of trees, and whether he had authority to agree to replace trees that failed to grow within 5 years, held for jury. Moyers v. Fogarty \[Iowa\] 119 NW 159. 40. Error for court to pass on authority of agent as shown by two letters, where there was other evidence on question: should have submitted issue to jury. Tapia v. Marcy, 81 Vt. 428, 71 A 72. 41. Search Note: See notes in 7 C. L. 88; 28 L. R. A. 435; 50 T. 644; 61 Id. 261; 4 L. R. A. (N. S.) 363; 12 Id. 946; 22 A. S. R. 508; 3 Ahn. Cas. 219; 6 Id. 566. See, also, Principal and Agent, Cent. Dig. 58 451-491; Doc. Dig. # 128-136; 1 A. & B. Enc. L. (2ed.) 119, 1161. See, also, Clark & S. Agency, $ 562-627. 42. Blount v. Tomlinson \[Fla.\] 48 S 751. When contract is signed by one as agent, and he does no act inconsistent with his relation as agent, he cannot be held as principal. Davis v. Lee \[Vash.\] 100 P 752. If agent, supervising making of improvements, disclosed his principal, and other party extended credit to principal and not to agent, agent was not personally liable for labor and materials. Lambert v. Philipps \[Va.\] 64 SE 945. Where from written part of contract and circumstances it appeared that person making sale was acting as agent for father, he was not personally liable on contract. Cuneo v. Wimberly \[Tex. Civ. App.1 115 SW 673. Plaintiff sold goods to C, on C's responsibility, thinking that one who personally ordered goods--the defendant--was C. Defendant not liable as authorized agent of corporation, be for goods, even though he represented him! to be C. Turchin Sheffield Plate & \[Ala.\] 47 S 48. Whether persons assuming to act for defendant were acting within real or apparent scope of their authority, nor for jury. Campbell v. Order of Washington \[Vash.\] 102 P 410. Whether defendant's agent had power to give plaintiff contract for exclusive sale of goods in certain territory held for jury. De Laval Separator Co. v. Sharpless \[Iowa\] 120 NW 657. Whether argued premises would be ready at certain date. Lessee knew who-owner was. Eeld, could not, on repudiating lease because premises were not ready, recover money paid on lease from agent. Finnegan v. Geoghegan, 111 NYS 656. Note was signed by corporation, by its president and secretary, and by certain others as "trustees." Parol evidence competent to show that they signed as agents for corporation only. Knippenberg v. Greenwood Mining & Mill Co. \[Mont.\] 101 P 159. 43. Blount v. Tomlinson \[Fla.\] 48 S 751. Agent may, by form of contract and signature, make himself personally liable. Contract reading "I, W. H. P., treasure of" certain company, do hereby agree, etc., signed by V.

either on the contract or in tort.50 Where one, acting for another, and holding himself as having authority, enters into a contract with another, he will be liable if he had in fact no authority ; " but if his want of authority was known to both, or unknown to both, there being a mutual mistake, he will not be personally liable.52 Where an agent assumes to act for another without authority and the principal refuses to be bound by the contract made by the agent, one who paid money to the agent may recover it from him.54 In such action the burden is on the agent to show that he acted with authority and paid the money over to his principal.54 The failure of an agent to disclose to his adversary instructions. or information received by him from his principal for his own guidance has in it no element of fraud or bad faith.55 An agent who pays over money belonging to another, after notice and demand, is a proper party defendant in an action to recover it.56

The authorities are said to be in conflict as to the liability of an agent to third persons for nonfeasance,57 that is, for the failure of an agent to perform a duty owed by him to his principal.58 Failure to perform a duty owed third persons generally is misfeasance for which he is personally responsible.59 Some courts hold him liable only for misfeasance.50 An agent of a known principal cannot sue upon debts due the principal,51 nor can he enforce obligations taken in his own name for consideration given by the principal.52

\_Undisclosed agency.\_See 11 C. L. 62--Where the agency is undisclosed,53 the agent may be held personally liable,54 or the person dealing with him, on discovery of the

51. Sourwine v. McRoy Clay Works, 42 \[principal. Bradley v. Rosenthal, 154 Cal. Ind. App. 358, 85 NE 782. 420, 97 P 875. 52. Corporate agent, contracting for medical services for servant of corporation, not only, to rent same and collect rents, not personally liable, where he believed he had authority, and was not guilty of fraud or misrepresentation. Sourwine v. McRoy Clay Works, 42 Ind. App. 358, 85 NE 782. 53. Money paid agents on unauthorized sale of land may be recovered. Simmonds v. Long \[Kan.\] 101 P 1070. Though defendant sold building as agent, he was liable to purchaser for money paid, property not having been delivered, and money having been paid to him personally. Klotz v. Gordon, 117 NYS 240. Where account was assigned to agents, and check given, as part payment of price of property sold by agents and principal refused to ratify sale, agents were not liable to buyer for cash value of account and check, but were only bound to return account and check. Mitchell v. Chick \[Mo. App.\] 118 SW 517. 54. Simmonds v. Long \[Kan.\] 101 P 70. 55. Armstrong v. Campbell \[Iowa\] 118 NW 898. 56. In suit to recover money paid to trustee of bankrupt by agents of bankrupt, with notice of plaintiffs' rights and after demand by plaintiffs' agents were proper parties defendant. Gardner v. Pinafters Nat. Bank \[Tex. Civ. App.\] 118 SW 1146. 57. Minnis v. Younker Bros. \[Iowa\] 118 NW 532. 58. Hagerty v. Montana Ore Purchasing CO. \[Mont.\] 98 P 643. 59. Failure of mining superintendent to maintain shaft in safe condition made him liable to one injured by reason thereof. Hagerty v. Montana Ore Purchasing Co. \[Mont.\] 98 P 643. For personal negligence agent is primarily and principal secondary liable. Judgment for agent releases agency, may, at his election proceed against the principal; "\*" but having proceeded against the principal, with full knowledge of his rights, he cannot thereafter maintain an action against the agent."

SS 4. \_Mutual rights, duties and liabilities." A. In general.\_See 11 C. L. "22...The mutual rights and duties of principal and agent depend largely upon the terms of their contract." The relation is a fiduciary one, requiring from the agent the utmost good faith," even though he acts gratuitously." Thus, it is his. duty to make a full disclosure of all facts concerning any transaction in which he acts for his principal." While dealings between principal and agent are not prohibited, the agent must act in entire good faith," and the burden is upon him to show fair dealing." He cannot deal in or speculate with the subject-matter of the agency for his own benefit, without the principal's knowledge and consent," nor can be represent both parties to a transaction, without their knowledge and consent," and he must ac count to his principal for all profits made by him at the principal's expense,78 as well as for all sums secretly paid to him by the other party,77 and the principal may be subrogated to securities obtained by the agent in dealing for his own advantage.78 Fraud of the agent makes him liable in damages to the principal 79 and invalidates a contract made by him 80 so that it may be rescinded at the instance of the principal.81 An agent who violates instructions is liable to his principal for damages resulting therefrom.82

purchaser. Fidelity Trust Co. v. Pool, 136 \[Mo, App.\] 118 SWV 668. Agent, arranging 111, App. 266.

75. Agent cannot act for both parties without their knowledge and consent. Artures will be reserved at the instance of the principal. 81 An agent cannot act for two parties having conflicting interests in the subject-matter of the agency without the consent of both. Cameron & Co. v. Blackwell \[Tex. Civ. App.\] 115 SWV 856. Under an ordinary contract to sell land for the highest price obtainable, it is unlawful for the agent, without the consent of the principal, to accept compensation from the buyer. Alkin v.

Poffenberger \[Tex. Civ. App.\] 116 SWV 615.

Broker may act for both parties, with their knowledge and consent. Arthur v. Porter \[Tex. Civ. App.\] 116 SWV 112. Agent need not inform principal of dual agency if principal already knows. Id.

76. Agent, not allowed to make profit for himself at expense of principal, is trustee as to profits gained by fraud or deception.

117 NWV 887.

36. 97 P 10. Agent authorized to sell property cannot secretly make profit for him-

01. Secret agreement, by agent, against perfect out of transaction, but it is bound to account for full price received especially

01. Where agent for sale of land buys where authorized to sell for best price obtainable. Merrill v. Sax \[Towal\] 118 NWV 434.

01. Where agent for owner induced third person to take title, buying from owner for resinded. Rodman v. Manning \[Or.\] 99 8500 and then sold to another for $300, paying medium of transaction $10, agent was name, and sold to another at an inadequate table to owner for profits. Forrester-Dun-

paric, the second vendee knowing of the can Land Co. v. Evatt \[Ark.\] 119 SWV 282.

Where brokers sold out several accounts

11. Where workers sold out several accounts

01. Where agents induced another to take land plaintiff's account only, and keeping enough to pay themselves, paying balance to agent.

01. How does not allow (SS 4) _B. Accounting, settlement, and reimbursement._"See 11 C. L. 84.\_The agent must of course account to the principal for all moneys or property coming into his hands as agent,"4 and must also account for all profits made by him through a breach of any duty owed to his principal,"5 even though the principal has suffered no loss in the transaction through the fraud of the agent."4 An agent's account should be a detailed statement."4 A waiver of an itemized weekly statement of expenses is not a waiver of an accounting at some time."4

The agent may recover from the principal money properly paid in his behalf,"5 and the principal may recover excessive advances to the agent."4 A principal who

Co. v. Folger, 136 VWs, 468, 117 NWF 944. -- concealed price at which land could be acquired and himself took land at less price and transferred to third persons at profit. See, also, Principal and Agent, Cent. Dig. -- is 162-177, 224-228; Dec. Dig. -- is 78, 85; A. -- and E. Enc. L. (2ed.) 1086. -- See, also, Clark & S. Agency, **SS 370**, 371, 417-429. --

54. Muir v. Kalamazoo Corset Co. \[Mich.\] 15 Det. Leg. N. 1074, 119 NWF 589. All profits made of advantage gained by an agent in the execution of his agency belong prima ficle to his principal. Wells v. Cochran \[Neb.\] 120 NW 1123. Money received by agent, and forfeited by prospective buyer, belongs to principal. Metscham v. Swenson \[Or.\] 99 P 277. Prima-cipal may recover from agent moneys received for principal's use, to which agent has no claim. Beagles v. Robertson, 135 Mo. App. 306, 115 SW 1042. Where purchaser makes payment, and then makes default, broker is not entitled to any part of the amount forefleted but this belongs to the seller. Burnett v. Potts, 236 IL 493, 86 NE 258. Where agent buys land at judicial sale for principal, he is bound to turn over to principal all that he acquired. Sale v. Pulaski Stave Co. \[Ky.\] 117 SW 404. In suit for accounting held that plaintiff was propriator of business and defendant was confidential cierk and agent. Lord v. Smith, 169 Md. 42, 71 A 439. Where broker did not report or turn over entire price received for property, principal was entitled to recover balance of price, and broker was not even entitled to retain commission. Schliefenbaum v. Rundbaken \[Conn.\] 71 A 899. Where goods are sold by importer "In bond, actual duty," refunds of duties belong to purchaser, and importer becomes agent for their collection, and imitation does not belong to fun against action for their recovery until purchaser has knowledge of refunds to importer so he can make demand for them. Schmid v. Dohan \[C. C. A.\] 167 F 84. Where agent, selling stock on commission, transferred his own stock, and kept proceeds, he was guilty of larcy under Rev. Laws 1905, 5 507, 8, since he was employed to sell company's stock and payment to him was payment to company, and he was bound to forward money to it. State v. Phillips, 105 Minn. 375, 117 NWF 508. -- is 85. See, also, ante, 84. The agent is bound to account for profits gained by him by failure to disclose to the principal facts which it was his duty to disclose to enable the principal to deal with the other party to the best advantage. Leonard v. Omstead \[Iowa\] 119 NWF 873. Where agent, making exchange of lands, has become liable through an unauthorized act of his agent is entitled to indemnity against the latter,\[91\] unless he has ratified the unauthorized act.\[92\]

Where an agent takes title to land for his principal, and gives a warranty deed thereof at the principal's request, and is afterwards sned for breach of warranty, and notifies the principal, who refuses to defend, the agent has a cause of action against the principal for the amount of the judgment, and for expenses and counsel fees paid by him.\[93\]

Moneys collected by an agent for collection belong to the principal and can under certain circumstances be recovered by him in the hands of third persons.\[94\] When moneys in the hands of the agent, belonging to the principal; are stolen, and the agent pays the amount stolen to the principal in payment of his obligation, the agent is subrogated to the rights of the principal to the money stolen.\[95\] In an action by the agent to recover the money, it cannot be urged by the person who stole it, or by anyone liable to the principal for or on account of it, that the action should have been brought by the principal.\[96\]

(SS 4) \_C. Compensation of agent.\[97\]\_See 11 C. L. 84.\_The right to compensation,\[98\] and the amount thereof,\[99\] usually depend upon the terms of the agency contract, and no other compensation than that specified can be recovered, even for extra services.\[1\] In the absence of an express contract, a reasonable amount may be recovered,\[2\] but there can be no recovery upon a quantum mernit where there is an express contract.\[9\] No compensation can be recovered until it is due,\[4\] and unless 90. Action will lie for recovery of ad-

one-half profits on lands listed and sold

vances made to salesman after termination

of his employment. Freudenberg v. Cooper,

Dickinson v. Hahn \[S, D.\] 119 NV 1034.

61 Misc. 214, 113 NVS 493.

Outract construed as providing for 10 per

1. Bradley v. Rosenthal, 154 Cal. 420,

1. P 875.

1. Principal who ratifies an unauthorized

act, thereby releases the agent from liability for exceeding his powers. Beagles

v. Robertson, 135 Mo. App. 306, 115 SVV 1042.

3. Shearer v. Guardian Trust Co. \[Mo. App.\] 116 SWV 456.

1. 95, 96. Fitzpatrick v. Letten \[La.\] 49

1. 494.

1. Search Note: See notes in 4 C. L. 93;

05 L. R. A. (N. S.) 469.

8. See, also, Principal and Agent, Cent. Dig.

09 194-244; Dec. Dig. 91 81-90; 1 A. & E.

8. Enc. L. (2ed.) 1095.

1. See, also, Clark & S. Agency, # 348-369.

1. Landloyd told tenant to employ man

to cultivate crop. Held, landlord liable for

wages of man employed. Meadows v. Hudson \[Ark.\] 119 SWV 269. Broker not entitled to commission for procuring sale where

he failed to inform principal that pending

deal would make him liable for commission.

principal supposing sale to be of different

nature. Skinner Mfg. Co. v. Douville \[Fla.\] 49 S 125. Contract between general and

subagent for Insurance construed and held

that subagent's right to commissions on

renewal premiums ceased when contract

between company and principal agent

terminated. Nelles v. Mac Farland \[Cal. App.\] 49 S 98.

9. Contract construed as entitling agent

to portion of commission out of notes given

for machinery and paid. Ord Hardware

Co. v. Case Threshing Mach. Co. \[Neb.\] 119

NVP 682. Evidence held to warrant jury in

finding that plaintiffs were to receive

01 per acre on lands listed prior to contract

with defendant and thereafter sold, and

2. A. (N. S.) 469.

1. A. (N. S.) 469.

1. A. (N. S.) 469.

1. A. (N. S.) 469.

1. A. (N. S.) 469.

1. Search Note: See notes in 4 C. L. 93;

1. A. (N. S.) 469.

1. Search Note: See notes in 4 C. L. 93;

1. L. R. A. (N. S.) 469.

1. A. (N. S.) 469.

1. Search Note: See notes in 4 C. L. 93;

1. Search Note: See notes in 4 C.

the agent has fully performed,5 but the principal cannot defeat the right to a commission by revoking the agent's authority after he has performed the services agreed upon.\* Fraud or bad faith of the agent prevents the recovery of compensation.\* An agent may recover commissions from both parties to a transaction if they know of and do not object to the dual agency.8

(SS 4) \_D. Remedies, pleading, procedure and proof.9--See 11 C. L. 85--Decisions dealing with these matters in actions by the agent to recover compensation,10 and to recover for breach of contract by the principal,11 in actions by the principal to compel the agent to account,11 to recover damages for fraud,13 negligence,14 and

"sale" in such case. Wolfsheimer v. Essevey v. Ansonia Mfg. Co., 111 NTYS 661. Frankel, 130 Ap. Div. 853, 115 NYS 958. Where a contract with a broker provides for a sale realizing a specified amount net to the seller, the broker to have any surplus as compensation, the broker is not entitled to any compensation until the seller has received the specified net sum, unless a sale is prevented by the seller. Burnett v. Potts, 236 11. 499, 86 NE 258. 5. General agent, defocus of appointing plaintiff local agent for machines, was told of prospective buyers, and, with agent of plaintiff, took an order with understanding that agency contract should be executed same day, which was done, and that plaintiff should have commission. Held, plaintiff entitled to commission. Lindquist v. Northwestern Port Huron Co. \[B. D.\] 117 NV 365. 6. Principal could not revoke agency of broker, so as to defeat right to commission, after broker had procured purchaser ready and able to buy, to whom principal later sold. Peach River Lumber Co. v. Montgomery \[Tex. Civ. App.\] 115 SW 87. 7. Agent who acts adversely to principal, or fails to disclose facts which would influence his conduct, commits fraud on principal and forfeits right to compensation. Froker who failed to report entire price received forfeited right to commission. Schleifenbaum v. Rundbaken \[Conn.\] 71 A 899. Broker dues not forfeit right to commission for sale of property because of having exhibited to intending buyer pieces of property belonging to several different owners. Lemon v. Mackelem \[Mich.\] 16 Det. Leg. N. 456, 122 NW 77. 8. Arthur v. Porter \[Tex. Civ. App.\] 116 SVV 127. 9. Search Note: See Principal and Agent, Cent. Dig. $\\lx@sectionsign$ 162-193; Dec. Dig. $\\lx@sectionsign$ 78, 79; 16 A. $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&$ $&&$ $&$ $&$ $&&$ $&$ $&&$ $&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&$ $&&&$ $&&&$ $&&&$ $&\\ violation of instructions,\[18\] and in actions to rescind for fraud of the agent,\[14\] are given in the notes.

## 11 **Agriculture**

The scope of this topic is noted below.\[17\]

SS 1. Regulation, 97.

SS 2. Cropping Contracts, Products and Crop

Licens, 98.

SS 1. \_Regulation.\[18\]\_See 11 C. L. 86.Some of the matters with respect to which the states regulatory power has been exercised are; the prevention of noxious weeds,\[19\] the labeling of commercial feeds,\[20\] the employment of persons already under contract with another to do agricultural labor,\[21\] the establishment of stock-law districts,\[22\] and the fostering of agricultural societies and exhibits.\[23\] To procure the publication of false government crop reports is punishable under the federal laws,\[24\]

was acting as grantor's agent and was (and Tenant\*), the status of crops as prop- equity of fraud in concealing tree price.

ery and rights therein generally (see EmLeonard v. Omstead Iowa) 119 NW 978.

Elements and Natural Products\*), the in- Agency not shown: Where owners of claims agreed to transfer them to one by written contract, they were bound by contract and could not later claim that such such systems requiring the tagging and branding him to account for profits on sale to an- other. Townsend v. Dilshelmer, 50 Vash.

treated elsewhere.

294, 97 P 53. One who performed services in settling differences between corporation promoters held not agent of plaintiffs so as to be liable to them as trustee for stock

To, Evidence held to show defendant; received by him. Cranney v. McAllister \[Utah\] 101 P 855.

13. Burden on plaintiff seeking to recover on ground of fraud of agent, to show fraud: instructions erroneous. Smith v. Brigham, 106 Minn. 91, 118 NW 150.

01. Evidence held to sustain judgment for defendant in action by plaintiff for damages to be liable to them as trustee for stock

01. In action against agent for accounting for loss sustained through alleged violation of instructions in holding wheat, evidence held to show that agent was authorized to act as he did. Iona Warehouse Co. v. Van Buren, 50 Vash.

375, 97 P 291.

16. Old man gave power of attorney to woman in whose house he lived, and later made feed of property to her. Evidence held not to show fraud or duress or undue influence, and dede upheld. Hemennway v. Abbott, 8 Cal. App. 450, 97 P 190. Where no continuing trust or agency relation was shown between plaintiff and defendants, but it appeared that defendants had acted as agents for another in negotiations with plaintiff, and that such negotiations had ended when defendants bought the property, plaintiff was not entitled to convey- ance from defendant. Mackel v. Nolan \[Cal. App.\] 97 P 112.

01. It includes the regulation of agri-culture generally and societies and exhibiters\[23\]. To procure the tolls organized for the promotion thereof. Leasing on shares and landlord's lien for rent of agricultural lands (see Landlord) of agriculture to make false reports re

## 8. _Cropping contracts, products and crop liens.\[26\]_

See 11 C. L. \[87\].As in the case of other contracts, cropping contracts must be certain in their stipulations and terms,\[27\] and must be construed according to the intent of the parties as expressed." Ordinarily, a cropper's contract whereby one agrees to cultivate the land of another and is to receive as compensation therefor a share of the crop grown constitutes a contract of employment,\[28\] and confers upon the cropper no title to the crop raised.\[30\] Where a cropping contract is broken by the owner of the land and the crop is harvested by him, the cropper may recover the difference between the value of his share and the cost of production.\[31\]

\_Liens.See 11 C. L. \[88\].In some states a special lien is given by agricultural supplies furnished under specific contract,\[32\] in addition to the more general lien for supplies furnished without such a contract,\[33\] and it is held that the latter lien may attach for supplies actually furnished, though pursuant to a specific contract made in another state.\[34\] A supply lien is superior to a mortgage on the crop,\[32\] except as to such portions of the crop as are exempted from the operation of the lien.\[34\] A

garding cotton crop is an offense under $;$

Rev. St. U. S. 5440, relating to conspiracy to $;$

default the United States. Haas v. Henkel, 166 F #21.

See 25.Conspiracy to obtain cotton crop sta- $;$

!tides in advance of official publication.

Haas v. Henkel, 166 F #21.

See 26.Search Note: See notes in 1 C. L. 15; 5.

Id. 95.

See 26.also, Agriculture, Cent. Dig. # 15- $;$

See 27.Contract whereby one party was $;$

plant corn upon land of the other to be $;$

paid for by one-half market price of corn $;$

but not specifying time held void for un- $;$

pearant. Stencking v. Long, 142 Ill. App. 1203.

See 28.When plaintiff under cropping contract, assumed half of living expenses of $;$

defendant's family, expenses for defendant's son who thereafter became member of $;$

defendant's family could be recovered. Feeland v. Berry \[KY.\] 113 SW 425. In cropping contract under terms of which defendant was to have tobacco barn built plaintiff to attend to building, labor to be $;$

reasonable price, held that defendant was $;$

!to furnish materials, plaintiff being only $;$

required to superintend construction and to $;$

hire workmen. Id.

\[20\].Where one contracts with owner to $;$

make a crop on latter's land, he to furnish $;$

land, team and implements, the other to $;$

furish labor, crop to be divided, relation $;$

of employer and employee is created.

Adams v. State \[Ala.\] 48 S 795.Contract to farm on shares, one party to furnish land and team, the other to furnish labor, $;$

constitutes contract for thriing under Code 1907, $;$

$ 4743.Vandergrift & Son v. Haw- $;$

Kims \[Ala.\] 49 S 754.Contract whereby one party was to plant corn upon land of another to be paid for by one-half market price of corn, and also to plant other crops, held to be a severable contract wherein agreement to plant corn was a hiring. Stencking v. Long, 142 Ill. App. 203.

See 30.One working farm as mere employee has no title to crops raised, although compensation to be in kind, and consequently $;$

cannot execute a valid mortgage thereon.

Vandergrift & Son v. Hawkins \[Ala.\] 49 S 754.Contract for rental of farm on shares

so far partakes of nature of contracts for personal services as to make it just to take into consideration the principles by which action for breach of contracts for services are governed. Crews v. Cortez \[Tox.\] 113 SW 523.Where cropping contract is broken by owner of land, cropper may recover his share of the crop if harvested by owner, less such sums as those thrown out of em- $;$

ployment could by reasonable diligence have earned thereafter, but all other expenses including those for hired help which cropper would have incurred in performing his part of the contract should be deducted from value of his share because he would have realized only difference between value of his share and cost of production. Id.

Expresses incurred by owner not charge- $;$

able. Id.

32.Act No. 66, p. 114, Laws La, 1874, providing for recordation of contracts giving a $;$

lien for advances covers only the sum named in the contract. Iberville Planting & Mfg. Co. v. Monongahella Coal Co. \[C.\] C. A.\] 188 F 12.

33.For general lien see Civ. Code La. art.

321.Thebewill Planting & Mfg. Co. v. Monongahela Coal Co. \[C. C. A.\] 168 F 1 domestic employed on a farm does not come within the statute giving a lien for the wages of farm laborers.\[87\] Landlord's liens for rent and advances are treated elsewhere.\[88\]

A creditor who pays superior lienholders may be subrogated to their rights.\[89\]

Crops subject to a lien for supplies may be attached by the lienholder in the hands of a third party.\[40\] A complaint in an action to enforce a laborer's lien must state the facts upon which the right to recover is predicated,\[41\] but an amendment in this regard may be allowed even after judgment by default.\[42\]

\*\*SS 3. \_Agricultural societies.\[43\]\_See 11 C. L. #9--Agricultural associations incorporated under certain statutes are public agencies of the state, and their property is public property.\[44\] If, however, they are incorporated as private corporations their property is subject to execution,\[45\] and even where they are public corporations, they are subject to the same liability for negligence as are private corporations.\[46\] It is held that a statute prohibiting the sale of any article within a certain distance from the fair ground of any agricultural society without its permission is unconsitiutional in not being a valid exercise of police power.\[47\] A misnomer of an agricultural corporation will not invalidate a conveyance made to it, if it appears that it was the corporation intended.\[48\]

\*\*Alder by Verdict, etc.:\*\*Alid of Execution; Alib, see latest topical index.

**Dig. #1 1, 4-12; Dec. Dig. #1 4-6; 2 A. & E.**

\*\*aside in good faith.**Dunlap v. Berthelot, 122 La. 531, 47 S #82.**

\*\*37.**Woman employed on farm to do or-dinary housework and to assist in cooking for farm laborers is not a "farm laborer" within Rev. Codes 1905, 8 6277. Lowe v.**

**Abrahamson LN. D.1 119 NW 241.**

**SS. See Landlord and Tennat, 12 C. L. #28.**

**SS. Where factor to protect his privilege given by factor's contract under Act No. 66.**

**p. 114, Laws La. 1874, directly paid off claims of laborers having a superior privillege, he was within protection of Rev. Code La. art, 2161, providing that subrogation takes place of right for benefit of him who, being himself a creditor, pays another creditor whose claim is preferable, and was subrogated to laborers' privileges as against other lien claimants. Iberville Planting & Mfg, Co. v. Monongahela Coal Co. \[C. C. A.\] #168 F 12.**

\*\*40.**When crops subject to lien for supplies have been delivered by tenant to another than the landlord, the remedy of the latter to have his lien declared and enforced is by attachment under Kirby's Dig. #1 5040, 5041. Fenniman v. Nowlin \[Ark.\] #120 SVV 378.**

\*\*41.**Complaint of day laborers that they had done work for owner of threshing out-nt and praying judgment against owner of outfit and against owner of wheat does not state cause of action or show superior lien as against that of creditor of owner of wheat obtained by garnishment. Young v. Shockey \[Kan.\] 101 P 681.**

\*\*42.**Under Civ. Code, $3061, providing for lien to any one performing work in, about or upon a threshing machine to extent of his services, held that complaint for claims, incomplete in not fully developing facts essential to relief, could be amended after judgment on default. Lemon v. Hubbard \[CaL App.\] 102 P 554.**

\*\*43.\*\*Search Note:\*\*See Agriculture, Cent. 154
ALIENS,

The scope of this topic is noted below.\[49\]

$ 1. Who are Aliens, 100.

$ 2. Disabilities and Perllueges, 100.

$ 3. Immigration, Exclusion, and Expulsion,

$ 4. Naturalisation, 103.

$ 5. \_Who are aliens.\[50\]--\_The naturalization of a father naturalizes his minor children,\[51\] but the naturalization of the husband does not change the status of the wife, who has not actually gained admission into the United States.\[52\]

$ 2. \_Disabilities and privileges.\[53\]--\_See 11 C. L. 90.--\_Except as limited by treaty,\[54\]

a state may deny to aliens the privilege of inheriting land,\[55\] or may grant it upon such conditions as it sees fit.\[56\] In Indiana an alien not residing in the state and who has not made a declaration of citizenship cannot take by purchase but only by devise and descent,\[57\] but in Arkansas aliens may obtain title to land by the operation of the statute of limitations.\[58\] An alien who has not declared his intention of becoming a citizen of the United States cannot, under the homestead laws, acquire title to government land.\[59\] Ordinarily, an alien may maintain suits to vindicate his rights and redress his wrongs, including actions for personal injuries\[60\] and for wrongful death,\[61\] but if the state statute grants such rights to citizens only, a treaty preserving the right of aliens to resort to the courts will not usually be construed to extend such rights to an action for wrongful death.\[62\]

40. Includes the rights and liabilities of aliens, the law of naturalization, and the regulation of immigration. Excludes citizenship (see Citizens\*), and the right to vote (see Elections,\* 5 2).

$ 50. See 11 C. L. 90. See, also, Citizens, 11 C. L. 627.

$ 57. Burns Ann. St. 1894, SS 333. Such an alien can hold and convey only for period of five years, at end of which period lands eachate to state. Lehman v. State \[Ind. App.\] SS **NB 365**.

$ 58. Under Kirby's Dig. $ 264, providing merely by showing that he was brought to $\\lambda$marche at the age of five years by his father, without any showing that the latter was not thereafter naturalized. Savage v. Umphries \[Tex. Civ. App.\] 118 SW SW 876, releasing \[Arl.\] 118 SW 1009, SS83.

$ 52. If petition of husband has effect of naturalizing nonresident wife who is not herself entitled to admission it will be denied. In re Rustigian, 165 F 980.

$ 58. See note, 11 C. L. 91, as to right of $\\lambda$marche to locate mining claim.

$ 44.

$ 61. See note, 11 C. L. 91. Nonresident items may maintain an action under Code 14; 31 Id. 85; 146, 177; 54 Id. 94; 32 Id. A. 14; 32 Id. A. 14; 33 Id. 85; 147; 171 Gd. 951; 11 Id. 799; 12 A. 14; 33 Id. A. 14; 343 Id. A. 14; 35 Id. A. 14; 36 Id. 77; 55 Id. 95; 11 Id. 799; 12 A. 14; 37 Id. A. 14; 38 Id. A. 14; 39 Id. A. 14; 40 Id. A. 14; 39 Id. A. 14; 39 Id. A. 14; 41 Id. A. 14; 42 Id. A. 14; 43 Id. A. 14; 44 Id. A. 14; 45 Id. A. 14; 46 Id. A. 14; 47 Id. A. 14; 48 Id. A. 14; 49 Id. A. 14; 49 Id. A. 14; 40 Id. A. 14; 41 Id. A. 14; 41 Id. A. 14; 42 Id. A. 14; 43 Id. A. 14; 44 Id. A. 14; 45 Id. A. 14; 46 Id. A. 14; 47 Id. A. 14; 48 Id. A. 14; 49 Id. A. 14; 49 Id. A. 14; 40 Id. A. 14; 41 Id. A. 14; 41 Id. A. 14; 42 Id. A. 14; 43 Id. A. 14; 44 Id. A. 14; 45 Id. A. 14; 46 Id. A. 14; 47 Id. A. 14; 48 Id. A. 14; 49 Id.

# Ornrell University

Jul 11 1912

13 Cur. Law. ALIENS SS 3A. LAW LIBRARP.1

SS 3. _Immigration, exclusion, and expulsion. A. Admission and exclusion._${}^{\\mbox{\\tiny 63}}$--

Se 11 C. L. 92--Congress has power to exclude undesirable aliens from admission to the United States,${}^{\\mbox{\\tiny 64}}$ and among the classes which in the exercise of such power are excluded are persons afflicted with contagious or loathsome diseases,${}^{\\mbox{\\tiny 65}}$ prostitutes,${}^{\\mbox{\\tiny 66}}$ and aliens under contract to perform labor.${}^{\\mbox{\\tiny 67}}$ A previously acquired domicle does not entitle an alien to re-enter the United States, if within the classes excluded by statute,${}^{\\mbox{\\tiny 68}}$ but aliens once admitted to the continental territory of the United States or to any of its dependencies will not be prevented from going from the one to the other.${}^{\\mbox{\\tiny 69}}$ Statutes prohibiting the landing of aliens do not apply where such landing is made through necessity.${}^{\\mbox{\\tiny 70}}$ A statute imposing a penalty for failure to furnish a manifest of alien immigrants does not contemplate incorrect information furnished in good faith.${}^{\\mbox{\\tiny 71}}$ The offense of bringing in aliens whose admission is forbidden is completed at the port of entry.${}^{\\mbox{\\tiny 72}}$

The decision of the officials of the department of commerce and labor in such cases constitutes due process of law,${}^{\\mbox{\\tiny 72}}$ but such officials must grant an actual hearing in good faith and must receive pertinent testimony offered by the applicant,${}^{\\mbox{\\tiny 74}}$ although the applicant is not entitled as of right to be present, either in person or by counsel, at the taking of the testimony or to be informed of the nature thereof.${}^{\\mbox{\\tiny 75}}$ Where the plain intent of an exclusion statute is to make a violation of its termspunishable by a civil penalty, it will be so construed," but where the offense is expressly denominated a crime it will be considered as such, regardless of the fact that it is punishable by a civil penalty merely." An indictment for permitting landing of aliens in violation of the statute must definitely allege that the offense charged does not come within the scope of the statutory exceptions," but matters in mitigation need not be alleged," nor need the statute under which the indictment is drawn be specified." Where the testimony against the defendant in a suit for penalties for importing aliens, is undisputed, the court may properly direct a verdict for the government."

Under some of the acts jurisdiction over the subject-matter is retained for certain purposes, such as deportation, even after the alien has been admitted," but the power of congress in such regard does not extend to regulations which constitute a usurpation of the police power of the state." An alien arrested on the border for attempting to enter the United States, but who has not actually entered," is subject to disposition by the immigrant inspector, and is not entitled to a hearing before a federal court or commissioner as in deportation proceedings," but the inspector must, in such case, return the alien to the country from which he tried to enter."

(SS 3) _B. Registration and certificate." See * C. L. #_

(SS 3) _C. Deportation and procedure incident thereto." See * C. L. #_

One lawfully within the United States is not subject to deportation," but such is not turning from visit to China, of due process of law. In re Can Pon \[C. C. A.\] 168 F 479.

76. Because the statute empowers the secretary of commerce and labor to exact a penalty for bringing in such alien when medical examination shows that alien was afflicted with such disease at time of emp-, 220, 23 Stat. 115 \[U. S. Comp. St. 1901, p. barchation, and which might at that time have been discovered, it is not thereby open to objection that it defines a criminal offense, and authorizes a purely administrative officer to determine whether the crime has been committed. Oceanic Steam Nav. Co. v. Stranahas, 29 S. Ct. 671. Actions to enforce penalties for bringing in aliens afflicted with disease are not necessarily governed by rules of criminal procedure. Oceanic Steam Nav. Co. v. Stranahan, 29 S. Ct. 671.

01. Though section 4 of Immigration act (Act Feb. 20, 1907, c. 1134, 34 Stat. 900 \[U. S. Comp. St. Supp. 1907, p. 3931\]), providing that it shall be a misdemeanor to prepay transportation or assist or encourage importation of contract laborers, merely pro-vides for civil penalty, congress by using word "misdemeanor" intended to define a crime, and, hence, conspiracy to commit acts contained within terms of statute are inditable and punishable under Rev. St. $ 5440 \[U. S. Comp. St. 1901, p. 3676\], forbidding conspiracy to commit offense against United States. United States v. Tsolcas, 163 F 129.

01. Allegation that Chinaman was landed under no necessity is broader than excep-, thus is statute (Act Sept. 13, 1888, 47 9 and 10, 25 Stat. 478, c. 1015 \[U. S. Comp. St. 1901, p. 2316\]), and is sufficient. United States v. Graham, 164 F 654.

01. Criminal offense is confined to question of landing or permitting to be landed, and anything pertaining to ultimate de-, but the most likely is that the state of the art is not a matter of science.

01. A. M.

the effect of the acquisition of a domicile, where the original entry was unlawful." The statutory period during which an alien, who has been previously domiciled in the United States, may be reported for practicing prostitution dates from the time of re-entry. \[91\] Proceedings to deport are civil, not criminal, in nature, \[92\] and the applicant may be compelled to testify. \[93\] The verification of a petition for a writ of habeas corpus in a deportation case may be made by the applicant's attorney, \[94\] but on such proceedings the rulings of the secretary of commerce and labor are conclusive in all cases of alien immigrants. \[95\]

(SS 3) \_D. New trial and appeal from order of deportation. \[96\]\_See 11 C. L. \[95\]\_The decision of the appropriate immigration or customs officer on a question of exclusion or deportation is final-if adverse to admission, \[97\] unless reversed on appeal to the secretary of commerce and labor. \[98\] Such an appeal lies as a matter of right, \[99\] and opens all questions of fact \[4\] and evidence. \[9\]

SS 4. \_Naturalization. \[99\]\_See 11 C. L. \[99\]\_Only such aliens as, by federal statute, have been given the right to become naturalized citizens of the United States can be naturalized by the courts, \[4\] and this right has been conferred only upon white persons and persons of African descent. \[9\] An alien woman domiciled in the United States and married to an alien cannot be naturalized although otherwise qualified. \[9\] Naturalization laws should be literally construed, \[4\] although not so as to override from China for the purpose of joining his author or arbitrary and that finding was called in the United States, and who thereafter, during his majority, labored and studied in the United States, was entitled to remain, his entry being rightful. United States v. Foo Duck, 163 F 440. Fact that after majority he worked as a laborer did not deprive him of his right. Id. \[90\] No defense to a deportation order by the department of commerce and labor. Ex parte Crawford, 165 F 830. \[91\] United States v. Hook, 166 F 1007. Prostitute who, after living In United States for several years, returned to Canada of which country she was a citizen, was properly deported upon her return, where evidence showed that she was an innate of a house of prostitution within three years after such re-entry. Id. \[92\] Tom Wah v. U. S. \[C. C. A.\] 163 F 1008. \[93\] Chinese person, against whom deportation proceedings are pending, may be called as a witness by the United States and be compelled to answer questions relative to the pending issue. Tom Wah v. U. S. \[C. C. A.\] 163 F 1008. \[94\] Rev. St. \[54\] (U. S. Comp. St. 1901, p. 593). United States v. Watchorn, 164 F 152. \[95\] N$\\ddot{\\rm o}$twithstanding 34 Stat. 907, c. 1134 (U. S. Comp. St. Supp. 1907, p. 407), giving circuit and district courts concurrent jurisdiction. Ex parte Crawford, 165 F 830. \[96\] Search Note: See Allens, Cent. Dig. \[97\] 38-95; Dec. Dig. \[98\] 33. \[97\] Where a person of Chinese descent seeks adimension on ground that he is a native-born citizen, a decision of the inspector that he is not is a decision of a competent tribunal and is final and conclusive in the absence of abuse of discretion. In re Tang Tun \[C. C. A.\] 168 F 488. Evidence held to show that hearing upon * 104 ALIENS $ 4. 13 Cur. Law.

- 104 or annul the immigration laws,\* but the rules regulating procedure must be rigidly followed.\* The act requires that the applicant be a person of good, moral character 10 and fit for citizenship,11 who has resided in the United States for the required time,12 and declared his intention of becoming a citizen thereof in the manner and form required by the act.13 The right of the applicant must be matured at the time of his petition,14 and such petition must be filed with a court having jurisdiction.
- S. It is no part of intended policy of Rev.
- St. $ 1994 (U. S. Comp. St. 1901, p. 1268), or
- of naturalization laws, that they should
- F $35. annual or override the immigration laws. In re Rustiglan, 165 F $90. If marital status
- makes it impossible to deal with husband and wife separately, it is more consistent with the welfare of citizens of United States
- to deny admission to both if wife is ineligible,
- bie, than to admit both. Id.
- 9. Court may not, in the exercise of as-used discretionary power, admit an alien
- to citizenship who has failed to establish
- his right by the kind of evidence which
- statute demands. United States v. Nisbet.
- 168 F 1005. Court could not receive and
- give consideration to depositions in favor
- of an applicant who has been a resident for five years, statute authoring such depositions only in case where applicant has been a resident in state or district for less than
- five years. Id.
- 10. Applicant who had habitually, knowingly and willfully, violated Sunday closing law for three years and who stated that he intended to continue doing so after he was naturalized, has not behaved as a man
- of good moral character, and application
- should be denied. United States v. Hrasky,
- 240 Ill. 560, 88 NE 1031.
- 11. Discretion vested in courts to determine fitness for citizenship is a legal, not a personal discretion, and, if abused, is subject to review. United States v. Hrasky,
- 240 Ill. 560, 88 NE 1031. Citizenship will not be extended to one who has no knowledge of the constitution or of the Institu-
- of the United States and who instead
- of availing himself of privilege to prepare
- himself by study, asserts his right to citizenship and who shows that he will hold
- his allegiance lightly. In re Meakins, 164 F $34. No fixed rule can be laid down as
- to fitness for citizenship. Practical test is
- whether evidence, considered as a whole,
- justifies conclusion that applicant will make a good citizen. That applicant has no ac-
- curate knowledge of federal constitution
- and form of government, not necessarily
- fatal to application. State v. Seventeenth
- Dist. Ct. \[Minn.\] 120 NV $99.
- 12. Five years. In re Schneider, 164 F $35.
- 235. In order to comply with Naturaliza- \*tion Act. June 29, 1906, c. 3592, $ 4, subb. 4. 34 Stat. 596 (U. S. Comp. St. Supp. 1907, p. 422), requiring court to be satisfied that applicant has continuously resided within the United States for five years, it is not necessary that applicant have been physically present throughout the entire five years. Id. Evidence held insufficient to show that applicant had completed with requirements of Naturalization Act of June 29, 1906, c. 3592, $ 4, subb. 4. 34 Stat. 596 (U. S. Comp. St. Supp. 1907, p. 421), requiring to residence for five years. In re Kestelman,
- 165 F 265. Evidence of witnesses held suff- \*tion is mandatory. Id. Petition filed legs
  13 Cur. Law. ALIMONY.

tion in the premises,\[16\] and must state the name of the vessel upon which he arrived.\[16\] The applicant must, except in special cases,\[17\] be vouched for by two witnesses \[18\] whose names have been posted for the statutory period.\[18\] A decree granting naturalization has all the effect of a judgment,\[20\] and imports validity, although the record does not show that all the legal requisites have been complied with,\[21\] and the original record cannot be corrected by a certificate of citizenship which is not sustained by any record entry of the court.\[22\] Such a certificate is subject to attack \[28\] at the suit of the government,\[24\] represented by the district attorney.\[28\] A federal district court has jurisdiction to entertain such a suit though the certificate attached was issued by a state court,\[24\] but, the jurisdiction of the two courts being concurrent only, the federal court will not review the findings of the state court upon the question of the latter's jurisdiction under local law.\[27\]

## ALIMONY.

_The scope of this topic is noted below.\[29\]_

- 8. Nature and Purpose of the Allowance, 105.
- 8. Procedure and Practice, 109.
- 8. Jurisdiction and Power to Award, 106.
- 8. Stage or Condition of the Divore Free-cendings, 106.
- 8. Astronomy in Sults for Annulment, 113.
- 8. Rensons for and Against Allowances, 107.

_The scope of this topic is noted below.\[29\]_

- 8. 1. Nature and Purpose of the Allowance, 105.
- 8. 2. Jurisdiction and Power to Award, 106.
- 8. 3. Stage or Condition of the Divore Free-cendings, 106.
- 8. 4. Rensons for and Against Allowances, 107.

_The secrecy of this topic is noted below.\[29\]_

- 8. 5. Amount, Character and Duration, 108.
- 8. Procedure and Practice, 109.
- 8. 6. 7. The Decree; Its Enforcement and Discharge, 100.
- 8. 9. 8. 8. 10. 11. 11.

**SLIMONY $\\lx@sectionsign$ 1.**: _Nature and purpose of the allowance. \[29\] See 11 C. L. \[30\]_Alimony_, in its origin, was the method by which the spiritual courts of England forced the duty of maintenance owed by the husband to the wife during such time as they were legally separated, \[36\] and, in modern jurisprudence, it is the allowance made to a woman on a decree of divorce for support out of her husband's estate. \[Temporary alimony is an allowance ad interim, including counsel fees, in a proper case, and is interlocutory in character. \[32\]_

**SS 2.**: _Jurisdiction and power. to award. \[33\] See 11 C. L. \[9\]_--The power of the court to allow alimony or counsel fees rests primarily upon the existence of the relation of husband and wife, \[34\] and, in order for the court to act, the wife must appear as a party. \[35\] The power of the court to award alimony pendente lite is either derived from the statute \[36\] or it is incidental to the statutory jurisdiction to entertain actions affecting the marriage relation, \[37\] but, in either case, the power of the court to make such an allowance is dependent upon the necessity therefor. \[38\]\_

**SS 3.**: _Stage or condition of the divorce proceedings. \[39\]_--See 11 C. L. \[9\]_--As a general rule alimony cannot be allowed after a decree for a divorce has been entered, \[36\] and the same rule applies with reference to allowance for attorney's fees. \[41\]_

**29.**: _Search Note: See notes in 3 C. L. \[14\]_; 6 Id. \[102; 7 Id. \[104; 3 L. R. A. (N. S.) 192. See, also, Divorce, Cent. Dig. $\\lx@sectionsign$ 605-609, $\\lx@sectionsign$ 614, 643, 658-664; Dec. Dig. $\\lx@sectionsign$ 209, 221, 231-234; 14 Cyc. $\\lx@sectionsign$ 748 761, 767-771, $\\lx@sectionsign$ 36, Anderson v. Norvell-Shapeligh Hardware Co., 134 Mo., App. 188, 113 SUV 732. $\\lx@sectionsign$ 81, Anderson v. Norvell-Shapeligh Hardware Co., 134 Mo., App. 188, 113 SUV 733. Alimony is an allowance made to the wife out of the husband's estate or income upon a decree of separation. Kiser v. Kiser, 108 Va. 730, 62 SE 936. Alimony is an allowance to the wife upon the termination of the marital relations by divorce. Wallace v. Wallace

**\[N. H.\] 72 A 1033.**: _Stalvey v. Stalvey \[Ga.\] 64 SE 91._

**33.**: _Search Note: See notes in 3 C. L. \[148; 68 A. S. R. 375; 71 Id. \[88; 2 Ann. Cas. $\\lx@sectionsign$ 19. See, also, Divorce, Cent. Dig. $\\lx@sectionsign$ 587-593; 20e. Dig. $\\lx@sectionsign$ 200-202; 14 Cyc. 745-746. $\\lx@sectionsign$ 34. Phillips v. Peacock, 132 App. Div. $\\lx@sectionsign$ 620, 117 NYS 625. Where there has been a final decree of divorce and no appeal taken, the relation of husband and wife does not exist and therefore no counsel fee will be allowed in an action to set aside the decree. Lake v. Lake, 194 N. X. 179, 87 NE 87. Question of fact whether there is an existing marriage is addressed to the court hearing the motion for alimony, and is to be determined by it on that motion in same manner as any other question of fact is determined. Ex parte Joutsen, 154 Cal. \[540, 98 T 391. $\\lx@sectionsign$ 25. Court has no power to direct payment of alimony on application of trustee for the wife under separation agreement. Phillips v. Peacock, 132 App. Div. 520, 117 NYS 625. \[36, Code Cliv. Proc. $\\lx@sectionsign$ 1769 authorizes court to require husband to pay money necessary to prosecute or defend an action. Lake v. Lake, 194 N. Y. 178, 87 NE 87. Counsel fees in an action to set aside a valid judgment of divorce not allowable under the statute. \[37\]_

**37.**: _Lake v. Lake, 194 N. Y. 179, 87 NE 87. In an action to set aside a valid judgment of divorce, the court has no inherent jurisdiction to award counsel fees. Id._

**38.**: \_Held that the circumstances of the case did not show necessity for an allowance for counsel fees. Lake v. Lake, 194 N. Y. 179, 87 NE 87. Wife has burden of establishing necessity for allowance for counsel fees.

other hand, in some states, alimony, with the exception of a small allowance as suit money, can be awarded only upon a decree of divorce.\[42\]

SS 4. \_Reasons for and against allowances.\[43\]\_See 11 C. L. 98--The allowance of temporary alimony is usually within the court's discretion,\[44\] and may be made even though the wife be adjudged the guilty party,\[45\] but usually such an allowance must be predicated upon a prima facie case\[46\] and upon the necessity therefor.\[47\] In the matter of permanent alimony, the mere legal liability of a husband to support his wife should not be enforced after she has deserted him,\[48\] but alimony under certain conditions may be awarded to a wife against whom divorce is decreed,\[49\] such allowance being within the sound discretion of the court,\[50\] which discretion, however, should not be exercised in favor of guilty wife when there are no mitigating * 108 ALIMONY SS 5. 13 Cur. Law. circumstances. \[81\] In some states the right to alimony is made to depend upon the status of the parties with reference to which of them is plaintiff and which defendant. \[82\]

SS 5. \_Amount, character and duration. \[53\] See 11 C. L. \[88\] The allowance or non-allowance of alimony, its amount and duration are matters within the discretion of the trial court. \[84\] In the matter of temporary allowances, each case must be governed by the circumstances and condition in life of the parties, \[85\] and such amount should be allowed as will meet the reasonable necessities of the wife's support \[68\] together with counsel fees sufficient to enable her to prosecute her side of the case. \[67\] Permanent alimony may be allowed, although the husband may not have property, either at the time of the filing of the libel for divorce, or at the time of the trial, if it appears that he has an earning capacity. \[88\] In making a permanent award, the means of the wife \[88\] and her station in life, \[89\] and the estate and ability of the husband, \[91\] will be considered. It is also held that the expense of conducting the suit to its end in the usual course may be considered. \[82\]

- 51. Ecker v. Ecker \[Ok1.\] $ P 918. \[temporary alimony allowance. Harrison v. Where husband alleged as ground for di- \] Harrison \[Ga.\] $6 SE 126. \[crock willful and malicious desertion and cruel and barbarous treatment which en- $25,000, together with $5,000 counsel fees, dangered his life and verdict was returned \[11\] In his favor as to both questions, held that though husband's income was many times \[11\] such amount. Gould v. Gould, 61 Misc. 120, \[11\] NYS 331. \[11\] $64 and June 25, 1895, \[11\] $67. Allowance is wholly prospective and v. Parker, 35 Pa. Super. Ct. 341. In Missouri \[11\] if divorce is granted to husband because \[11\] service rendered upon plaintiff's of wife's fault, it is error to allow wife \[11\] before allowance was granted. \[11\] Gillott v. Elliott, 185 \[11\] Mo. App. 42, 115 SWP 486. \[11\] Under the circumstances $5,000 counsel \[11\] Use New Hampshire statute, when \[11\] fees appeared to be reasonable and ade- \[11\] quote. Id. Where wife sued for divorce \[11\] employed in determining the amount and husband filed a cross complaint, held of alimony, but wife as libele is not en- \[11\] that wife was entitled to $75 attorney's \[11\] fees as suit money in wife's defense to the \[1 13 Cur. Law. ALIMONY SS 6.

\_Agreement of parties.\_See 11 C. L. 190.--It is held that it is not competent for a husband and wife to make a valid agrement as to alimony, during the pendency of a suit of divorce, independently of the sanction of a decree for divorce,\[48\] but, on the other hand, it is held that an independent agreement for payment of alimony, which has been fairly entered into in contemplation of an immediate divorce, is valid,\[48\] though the court in awarding alimony is not bound by such agreement in the matter of the amount.\[48\]

SS 6. \_Procedure and practice.\_See 11 C. L. 190.--An application for temporary alimony must have as a basis some proper action which will result in a final judgment and terminate the interim,\[97\] and such an application cannot be supplied by subsequently filing a separate suit for permanent alimony.\[68\] As long as an application by the husband for divorce is on file, the wife has a right to apply for temporary alimony and have a hearing thereon.\[68\] While on an application for alimony the fact of marriage, if denied, must be proved,\[70\] yet, where it is practically the only fact in issue on said motion, the proof should not be required to go beyond establishing a fair probability that the petitioner will maintain her allegations.\[71\] The right to temporary alimony is established if probable grounds are shown.\[72\] A hearing may be had on the question of temporary alimony under an application for temporary and permanent alimony,\[73\] and where an action is brought for divorce and permanent alimony, it is within the discretion of the court either to grant or refuse temporary alimony.\[74\] An order for temporary allowance may be made at any time after the filing of the original complaint and prior to the termination of the action.\[73\]

\_Appeal and review.\_See 11 C. L. 191.--Where there is error in granting alimony the remedy is by appeal,\[76\] and error in granting an order for alimony pendente lite can

was more than 60 years old, wife worth \[or Insufficiency of grounds alleged, would $1,300, and husband $6,200, $800 alimony not \[default her right to apply for temporary too small, $1,500 allowed on appeal. Lawier \] alimony as long as application was on file. v. Lawier \[Alich.\] 16 Det. Leg. N. 305, 31 Id.

**NV 394.** Fifty dollars per month and costs and $150 attorney's fees, where husband was worth between $5,000 and $10,000, considered reasonable alimony. Whetherington \[Fla.\] 48 S 549.

**62.** Wellace v. Wallace \[N. H.\] 72 A 1083.

**63.** Contract purporting to satisfy a judgment for alimony not in existence and conditioned on judgment for divorce being granted is void as against public policy. Wilson v. Fahnestock \[Ind. App.\] 86 NE 1037.

**64, 65.** Pryor v. Pryor \[Ark.\] 114 SW 700.

**60.** Search Note: See notes in 3 C. L. 152;

**9** A. R. A. (N. S.) 993; 10 Ann. Cas. 558.

See, also, divorce, Cent. Dis. $ 594-604.

**626-631, 651, 652, 673, 674, 675, Dec. Dis. $ 693-207.** 207, 214, 226; 14 Cyc. 746, 747, 756, 763, 764.

**67.** Judge of superior court cannot on more application for temporary alimony, without more, and with no foundation on which to base it, either by way of suit for divorce or permanent alimony, grant temporary alimony, argued, and order funds of husband in bank to be paid over by bank to wife. Stalvey v. Stalvey \[Ga.\] 64 SE 91.

**68.** Stalvey v. Stalvey \[Ga.\] 64 SE 91.

**69.** Odum v. Odum \[Ga.\] 64 SE 470. Fact that husband filed application for divorce in county having no jurisdiction to grant divorce or on grounds on their face insulin-client to authorize divorce, and that wife did not plead want of jurisdiction in court * 110 ALIMONY SS 7. 13 Cur. Law.

be reviewed only by appeal from the order, \[77\] but it has been held that an order in-erasing alimony pendente lite is not appealable. \[78\] Where the evidence is sufficient to warrant a decree of alimony, an appellate court will not disturb such decree be-eause of conflicts in the evidence, \[79\] and an order allowing temporary alimony will not be disturbed except for manifest abuse of discretion, \[80\] nor will the action of the trial court, as to the amount allowed to pay the expenses of defending a suit for divorce, as a rule be reviewed. \[81\]

SS 7. The decree; its enforcement and discharge, \[82\] See 11 C. L. 161. It is held in Oklahoma that the court is without authority to decree absolutely a certain and specific sum of money, or a certain specific portion of the property, as alimony, \[83\] but may decree alimony in a continuous allotment of sums, payable at regular intervals. \[84\] In most states it is held that a decree for alimony is more than a judgment debt, \[85\] but in some it is treated as a mere debt. \[86\] A decree for alimony in gross which provides that such is given in lieu of all tower rights operates to cancel an entenuptial contract providing for the payment of a gross sum in place of dower. \[87\] The wife has a vested right in alimony which has become due, \[88\] but alimony cannot be recovered after the death of the husband. \[89\]

_Actions on decreres for alimony. \[85\] 11 C. L. 102_--A decree for alimony is such a judgment or decree as the federal constitution and statutes require shall be given full faith and credit in other states, \[90\] and may be enforced by action in another state when it is final in its mature, \[91\] but not where it is subject to modification by the court rendering it. \[92\] In such an action the decree sued on will be interpreted according to the law of the state where it was rendered. \[93\]

- 77 If granted without proof of marriage. In wife title to one-half his estate or a appeal from the order, and not habeas corpus, is the proper proceeding. Ex parte v. Packer (QkL 13 Cur. Law. ALIMONY $ 7. 111

Subjection of property.See 11 C. L. 109--Judgments for alimony may generally be made a lien on real property,94 but alimony as such is not a lien that will defeat a conveyance by the husband made without fraud.95 Liability for alimony may be enforced also by attachment 95 or sequestration 97 of personality.

Attachment of the person; contempt proceedings.See 11 C. L. 104--Contempt proceedings will lie upon failure to pay alimony,98 but such proceedings will not lie for failure to execute the bond to secure payment of alimony.90 A contempt in failing to pay alimony is not a contempt committed in the presence of the court for which is may deal with the husband summarily.1 A demand for the amount due 2 and an order to pay, or show cause, properly made by the court 2 are usually requi-

the amount to be paid thereunder by the | remedy was to set aside judgment award- court rendering such decree, is not such a | Schrader \[Kan. \] $ P 236. Deed of trust | der the full faith and credit clause of the | constitution of the United States, or upon | prior to divorce wife's signature was ob- principals of county. Cureton v. Cureton | \[Ga.\] $6 SE 65. | \[Ga.\] $8. Where statute of foreign state pro- vided that "when a divorce is granted the court | shall make provision for guardian- | \[hily, custody, support and education of the | \[hily, custody, support and education of the | \[hily, custody, and may | \[hily, Wages of husband who has remar- | \[hily, modify or change any order in this respect | \[hily, w whenever circumstances render such change | \[hily, wages of husband who has remar- | \[hily, wages of husband who has remar- | \[hily, wages of husband are | \[hily, wages of husband are | \[hily, wages of husband who has remar- | \[hily, wages of husband are | \[hily, wages of husband are | \[hily, wages of husband who has remar- | \[hily, wages of husband are | \[hily, wages site to institute contempt proceedings. It is held that if within husband's power to pay alimony he may be imprisoned until he complies,\* but that if unable to pay he cannot be imprisoned,\* but on the other hand it is held that one cannot purge himself of contempt in failing to pay alimony by showing his inability to pay,\* his remedy in such case being by motion to be released from imprisonment.\* In any event it is incumbent upon the defaulting party to prove such excuse.\* Where the aggregate of payments exceed the amount of alimony which was to have been paid in monthly instalments, an action for contempt will not lie.\* Where there is a special statute providing for contempt proceedings for failure to pay alimony, proceedings under another statute will not lie,10 and, in the absence of a statute authorizing attachment for nonpayment of permanent alimony, the remedy by proceedings as for contempt is not open.11 In Missouri it is held that contempt will not lie for failure to pay alimony.12 In New York imprisonment for contempt in failing to pay alimony as required in the decree cannot be for a longer period than three months if the amount of alimony does not exceed five hundred dollars.13 Whether a conveyance was fraudulent and made to defeat alimony cannot be determined in proceedings for contempt.14

_Vacating or modifying_,See 11 C. L. 105--A decree for alimony in case of divorce a vinculo made without reserve, although payable in instalments, is final,15 and cannot be changed after enrollment, in the absence of statutory authority or a reservation of power in the decree itself.18 Such modification may, however, be made when authorized by statute 17 or power to do so is reserved in the decree,18 and the

''' vss paid within certain time. Krauss v. {art, 127 App. Div, 672, 111 NYS 786. Under Krauss, 127 App. Div, 743, 111 NYS 790. {ack, 1773 commitment cannot takee until after notice to show cause, but, if order is issued without notice, the fact that defendant paid the alimony does not debbar him of his right to have the order vacated on appeal. Id. fortune over which the accused has no control is a complete defense, as where accused was hopelessly insolvent and his income fell far short of his expenses, an order committing him to jail in default of payment of $100 instanter should not have been made. Holcomb v. Holcomb \[VWash.\] 102 P 653. {ack, 112 NYS 525, 7. Cahzin v. Cahzin, 112 NYS 525.

fact that such alimony was granted upon an agreement entered into between the parties does not alter the case; \[19\] but, while a former decree of court allowing a wife permanent alimony in a lump sum remains unimpeached, she will not be permitted after exhausting the amount awarded her to maintain a new and independent action for a new allowance.\[20\] Remarriage of the wife does not ipso facto relieve the husband from payment of alimony allowed by the original decree,\[21\] and she cannot on such account be deprived of any payments which are due by any subsequent action of the court\[22\] or legislature.\[23\] A decree for alimony which has been procured through fraud and undue influence of the husband may be modified in a subsequent proceeding.\[24\]

SS 8. \_Alimony in suits for annulment.\[25\]_See 11 C. L. 105._--Alimony may be awarded for the purpose of defending an action brought to annul a marriage as illegal,\[24\] even in the absence of statute providing therefor.\[27\] Such allowance may be made at any stage of the case.\[28\]

## 13 Cur. Law. Alteration of Instruments 1.

fact that such alimony was granted upon an agreement entered into between the parties does not alter the case; \[19\] but, while a former decree of court allowing a wife permanent alimony in a lump sum remains unimpeached, she will not be permitted after exhausting the amount awarded her to maintain a new and independent action for a new allowance.\[20\] Remarriage of the wife does not ipso facto relieve the husband from payment of alimony allowed by the original decree,\[21\] and she cannot on such account be deprived of any payments which are due by any subsequent action of the court\[22\] or legislature.\[23\] A decree for alimony which has been procured through fraud and undue influence of the husband may be modified in a subsequent proceeding.\[24\]

SS 8. \_Alimony in suits for annulment.\[25\]_See 11 C. L. 105._--Alimony may be awarded for the purpose of defending an action brought to annul a marriage as illegal,\[24\] even in the absence of statute providing therefor.\[27\] Such allowance may be made at any stage of the case.\[28\]

## 14 Alteration of Instruments.

The scope of this topic is noted below.\[29\]

SS 1. _Nature, kinds and materiality of Alter-_

SS 1. \_Nature, kinds and materiality of alterations.\[30\]_See 11 C. L. 106._--An altera-

granted contained a provision for payment in monthly installments, with reservation in the correct and decree, did not preclude or decree of the right of either party, in the event of changed circumstances, to apply such proceedings, where the necessities of tion thereof, an application by husband for payments. Id.

- 25. _Search Note: See notes in 21 L. R. A._ where it appears that subsequent to the make/or allowance she obtained a divorce and married another man who is 1884-1088, 1093; Dec. Dig. SS 295, 298; 21 mcr state. Madden v. Madden, 11 Ohio C. C. (N. S.) 238.
- 19. \_Decree is not entirely dependent upon the agreement and therefore the power to subsequently alter cannot be controlled by it. Pryor v. Pryor \[Ark.\] 114 SW70.
- 20. _Hiribal v._ Tiribal, 11 Ohio C. C. (N. S.) 404.
- 21. _Chamberlain v._ Britton, 136 Ill. App. 29.
- 22. _Order annulling the alimony provision nune pro tune as of the date of remarriage of wife is erroneous. Krauss v. Krauss, 127 App. Div. 740, 111 NY8 788._
- 23. _Laws_ 1904, p. 885, c. 338, amending $ 1771, so as to provide that court must annul provisions for alimony on showing that she has remarried, held not applicable to decrees passed before such act. Krauss v. Krauss. 127 App. Div. 740, 111 NY8 788.\_
- 24. _Where husband threatened wife that if she did not agree to amount of alimony suggested by him he would defame her character and by fraudulent methods induced her to do as he ordered, held it was proper to modify original decree so as to allow additional alimony. Holt v. Holt see Forgery._
- 30. _Search Note: See notes in $ C. L. 155, 166; 7 Id. 116; 2 L. R. A. (N. S.) 217; 2 Am. Cash 311._
- 31. \_Curr. L. --_8_ tion is material when it changes the legal effect of the instrument," but not when the legal effect of the instrument remains the same after the alteration as it was prior thereto.\[32\] Whether the mutilation of a written instrument constitutes a material alteration depends upon whether a material part of the instrument is thereby destroyed or detached.\[33\] As between the original parties to an instrument, the addition of a new party as a surety is immaterial.\[34\] Failure to insert a provision which the parties agreed should be inserted is not a fraudulent alteration.\[35\]

SS 2. _Effect of alteration.\[30\]--See 11 C. L. 106_--An unauthorized material alteration by parties or privies invalidates the instrument as against all nonconsenting parties " affected thereby,\[38\] regardless of any question of actual fraud.\[30\] An alteration by a stranger is a mere spoliation \[40\] and will not prevent a recovery, upon the contract in accordance with its original terms,\[41\] by a party without whose consent's such spoliation is made.\[42\] This rule applies to alterations by a surety without his principal's knowledge or consent,\[43\] and to an unauthorized alteration by an attorney,\[44\] though in the latter case a presumption of the client's knowledge and consent may arise from slight circumstances.\[45\] The relative rights of persons claiming under the same instrument must be determined with reference to their lack of notice of the alteration or their innocence of participation therein.\[40\] The alteration of an instrument does not affect its operation as an executed contract,\[47\] and a for * 13Cur. Law. AITERATION OF INSTRUMENTS SS 4. 115

tioni this is true where the alteration is made by a stranger.\[46\] The alteration of a mortgage note does not necessarily affect the validity of the mortgage.\[49\]

SS 3. _Curing or ratifying alterations.\[50\] See 9 C. L. 98_--The re-execution of an instrument after its alteration renders it effective as altered,\[51\] and in some cases re-execution is essential in order to validate the alteration.\[52\] Ordinarily, however, failure to disavow an alteration after notice thereof and of the fact that innocent persons are acting upon the faith of the instrument as altered will operate as an estoppel.\[53\]

SS 4. _Pleading, practice and evidence.\[54\] See 11 C. L. 107_--The presumption is that an alteration was made before the execution of the instrument,\[35\] unless it is of a suspicious character.\[56\] In the latter case the burden of explaining the alteration is upon the party seeking to enforce or use the instrument,\[57\] and so also where it appears that the alteration was made after the execution of the instrument.\[58\] Every presumption is indulged against the despoiler of an instrument.\[59\] The admission of an altered instrument in evidence does not of itself settle the issue of the bona fides of the alteration.\[60\]

\[W. Va.\] 64SE 964. Only effect of such an alteration is to deprive the party chargeable therewith of benefits of an executory nature. Id.

- 48After delivery of deed the words "and to the children of Hosea B. Young, by his first marriage," were written in by unauthorized third person. Young v. Young \[Mich.\] 16Det. Leg. N. 228, 121 NW 264.

- 49S. Suit by chattel mortgage to recover property from purchaser with notice, held not affected by alteration of mortgage note, the action not being upon the note. Van EDs v. Newald \[Wis.\] 120N NV 853.

- 50Se. Search Note: See note in 12 L. R. A.

- 51See. also, Alteration of Instruments.

- 52See. also, Alteration of Instruments.

- 53C. L. 98\_--The re-execution of an instrument after its alteration renders it effective as altered,\[51\] and in some cases re-execution is essential in order to validate the alteration.\[52\] Ordinarily, however, failure to disavow an alteration after notice thereof and of the fact that innocent persons are acting upon the faith of the instrument as altered will operate as an estoppel.\[53\]

- 54See. also, Alteration of Instruments.

- 55S. Warren surety who knew that goods were being delivered on faith of bond as altered by co-operation.

- 56C. Warrenite Refining Co., 8

- 57S. Warren note: See notes in 3 C. L. 157;

- 58Id. 112.

See, also, Alteration of Instruments, Cent.

- 59S. Warren note: See notes in 3 C. L. 157;

- 50Se. 113C. L. 107\_--The presumption is that an alteration was made before the execution of the instrument,\[35\] unless it is of a suspicious character.\[56\] In the latter case the burden of explaining the alteration is upon the party seeking to enforce or use the instrument,\[57\] and so also where it appears that the alteration was made after the execution of the instrument.\[58\] Every presumption is indulged against the despoiler of an instrument.\[59\] The admission of an altered instrument in evidence does not of itself settle the issue of the bona fides of the alteration.\[60\]

- 51See. also, Alteration of Instruments.

- 52See. also, Alteration of Instruments.

- 53C. L. 98\_--The re-execution of an instrument after its alteration renders it effective as altered,\[51\] and in some cases re-execution is essential in order to validate the alteration.\[52\] Ordinarily, however, failure to disavow an alteration after notice thereof and of the fact that innocent persons are acting upon the faith of the instrument as altered will operate as an estoppel.\[53\]

- 54See. 113C. L. 114N.

A bill for the reformation of an altered instrument must set out facts sufficient to show that the case is one entitled to equitable cogninance.\[41\]

**AMBASSADORS AND CONSULS.**

The scope of this topic is noted below.\[63\]

While there is a distinction between a consul and a consular agent, where it is apparent that a statute uses the terms interchangeably they will be so construed.\[64\]

Appeals from consular courts are usually assimilated to those from United States, circuit and district courts.\[65\]

**Ambiguity; Amendments, see latest topical index.**

**AMICUS CURIAE.\[66\]**

The scope of this topic is noted below.\[67\]

The office of an amicus curiae is to advise the court as such and not to represent any of the parties to the proceeding in which he is appointed,\[68\] and hence he is, may be appointed in ex parte proceedings,\[69\] and, so long as he really appears and facts for the guidance of the court, it is immaterial in what manner he appears \[70\] or in what form he gives his advice;\[71\] but an appearance under the guise of an amicus curiae cannot be sustained when it is in fact an attempted appearance for one not a party to the proceeding \[72\] and even when properly appointed an amicus curiae cannot act for or as the representative of any of the parties,\[73\] as by taking exceptions to the court's rulings \[74\] or by applying for a rehearing.\[75\] Any member of the bar may be accepted as amicus curiae.\[76\]

**Amretion; Amount in Controversy; Ancient Documents, see latest topical index.**

**61. Lanum v. Patterson, 143 Ill. App. 255. for**

**62. Lanum v. Patterson, 143 Ill. App. 255. for**

**63. In**

**64. In**

**65. In**

**66. A**

**67.**

**68.**

**69.**

## 13 Cur. Law. ANIMALS SS 2.

## 13 Animals.

_The scope of this topic is noted below.\[71\]_

**6 1. Property in Animals, 117.**

**8 2. Personal Injuries Inflicted by Animals, 117.**

**8 3. Injuries to Property by Animals Tresengs or Running at Large, 119.**

**8 4. Liability for Killing or Injuring Animals, 120.**

**8 5. Contracts of Adjustment, 120.**

**8 6. Estrays and Imputing, 121.**

**SS 1.**\_Property in animals.\[71\]\_See 11 C. L. 109.\_The ownership of the dam carries title to the offspring.\[72\]\_Under the laws of Georgia, a dog is such property as is subject to levy and sale for the debts of its owner.\[73\]\_Domestic deer are, at common law, the subject of property,\[74\] and, while it is within the power of the legislature, to prohibit their killing for certain seasons of the year, fish and game laws will not, be construed to apply to them during the open season.\[75\]\_See 11 C. L. 109.\_Those who maintain vicious animals\[76\] are liable for injuries inflicted by them where they knew,\[77\], or by the exercise of ordinary care could have known, that such animals were vi-

**75.** Bayou Terre Aux Boeeuf Drainage Dist. Comm'res v. Baker \[L1.48 654.\*\*

**76.** Appearance by prosecuting attorney in divorce suit treated as appearance by amicus curiae. Yeager v. Yeager \[Ind. App.\] 87 NE 144.\*\*

**77.** Includes all matters arising from property in animals. Wild game and the relative rights of the state and individuals therein are treated in the topic Fish and Game Laws.\[76\] As to carriage of live stock and its care in transit, see Carriers,\[77\] 15-11, and as to live stock insurance, see Insurance.\[77\] 78.**Search Note: See notes in 3 C. L. 159; 11 T. L. R. A. 81; 40 Id. 503, 687; 47 A. S. R. 546; 67 Id. 28.**

**See, also, Animals, Cent. Dig. $$ 1-12, 39, 264; Dec. Dig. $$ 1-13, 20; 25 Cyc. 304-309; 2 A. A. & E. Enc. \[L. (2ed.) 345.**

**79.** Dunning v. Crotrident \[Conn.\] 70 A 630.\*\*

**Inerease of morigaged animals belongs to the mortgagor in Oregon, since in that state mortgage in only a lien and does not transfer title, Ayre v. Hixon \[Or.\] 98 P 515.**

**80.** Vaughn v. Nelson, 5 Ga. App. 105, 63 52 708.\*\*

**81.** Dietterich v. Fargo, 19+ N. Y. 559, 87 **NE 518.**

**82.** Forest, fish and game law (Laws 1908, pp. 328, 328, c. 130), regulating killing and transportation of deer during certain seasons has no application to domestic deer during the open season, but prohibits the killing even of domesticated deer during the closed season. Dietterich v. Fargo, 194 N. Y. 359, 87 NE 518.\*\*

**83.** Search Note: See notes in 5 C. L. 114; 7 Id. 120; 62 K. R. A. 132; 7 L. R. A. (N. S.) 1188; 41 Id. 947; 6 Id. 1164; 11 Id 748; 16 Id. 445; 16 A. S. R. 631; 36 Id. 831; 31 Ann. Cas. 205; 8 Id. 1070; 4 Id. 127; 5 Id. 877; 10 Id. 308, 865.\*\*

See, also, Animals, Cent. Dig. $$ 232-275; 10 Dec. Dig. $$ 67-16; 5 Cyc. 367-392, 415-420; 2 A. & E. Enc. L. (2ed.) 351, 866, 21 A. & E. Enc. P. & P. 885.\*\*

- Always begin with the latest article on the subject. Use the latest topical index.

118 ANIMALS $ 2. 13 Cur. Law.

cious," although not personally the owners thereof(r) nor of the premises upon which kept." The common law makes a distinction in respect to such knowledge as between animals ferae naturae and domestic animals." The burden is upon the one injured to show that the owner had notice of the vicious disposition of the animal." A statute creating an absolute liability on the part of the owner of a dog for damages done by him, regardless of knowledge or negligence on the part of the owner, contemplates compensatory damages merely." Where the statute expressly defines

scienter. O'Rourke v. Finch \[Cal. App.\] #9 previous occasions been seen to run out and F $92. Evidence held to show that balider bark at passing horses. Muller v. Schuh- has knowledge of vicious propensities of feld, 114 NYS 1012. In suit for damages dog entrusted to balice. Emmons v. Ste- for bite of mad dog, opinion evidence of vane \[N. J. Err. & App.\] 73 A 544. Evidence held innefficient to show that defend. to whether dog was suffering from rabies, ant had knowledge that horse driven by plaintiff, his empiove, was a kicker. Hane- man v. Western Mast Co., S4l. App. 638, the same persons, where they made up a connected whole, Buck v. Brady \[Md. App.\] 73 A 277.

shown. Field v. Morrison, 142 Ill. App. 446. In action for personal injuries caused by vicious dog held insehr, evidence held insufficient to show that though he did not own dog but had previously given it to member of his family. Knowledge of it. Johnston v. Mack Mfg. McGurn v. Grubnau, 37 Pa. Super Ct. 454.

Con. \[V. Va.\] 46 SE 841. Evidence held innefficient to show that defendant had knowledge that lackas by which plaintiff was injured was vicious. Donahue v. Scott

Transter Co., 141 Ill. App. 174. Evidence insufficient to show that owner had knowledge of vicious nature of horse by which plaintiff was bitten. Corcoran v. Kelly, 61

Misc. 323, 113 NYS 686.

80. Owner of bull owes to all persons the common-law duty of exercising due care to protect them, not only from known viciousness but from mischevicus acts of such animal, which might reasonably be expected from its natural disposition and propensities. Peterson v. Conlin \[N. J.\] 119 NWV 367. Where vicious disposition has been established. there is no presumption that animal will not display it towards its keeper as well as towards a stranger. Emmons v. Stevane \[N. J. Err. & App.\] 73 A 544.

Sufficiency nf evidence: Testimony of witnesses acquainted with a horse alleged to be vicious and unruly as to disposition before and after accident alleged to be caused by such viciousness was material and relevant as to the disposition of the horse on the day of the accident. Putnam v. Phoenix Preferred Acc. Ins. Co. \[Mich.\] 15 Dec., Leg. N. 830, 118 NWV 922. Testimony, that mare was valued at $250, relevant as bearing on question whether she was unruly or vicious. Jd. Knowledge of servant in charge of a dog in regard to suspicious actions, which might lead one to suspect that the dog is afflicted with rabies, is the knowledge of the master. Buck v. Brady

\[Md. App.\] 73 A 277. Evidence held to show that livery stable keeper could, by reason- able care, have ascertained that horse hired to plantiff was vicious and liable to run- showmation v Mack Mfg. Co. \[V. Va.\] 83 A 324. Owner of dog afflicted with rabies held like where he released it after having been 114. Plantiff's ignorance of anvarded by servant that dog might be mad. Buck v. Brady \[Md. App.\] 73 A 277. In action for injuries sustained in runaway proved. Haneiman v. Western Meat Co., 8

causal by dog bliting horse, it was not suf- ficient proof of sicient that dog had on

91. Puls v. Powelson \[Iowa\] 121 NWV 1.

the acts for which the owner shall be liable, no liability results for injuries caused by acts not specified." No recovery may be had for an injury by an animal if such injury is occasioned by provocation on the plaintiff's part." Negligence cannot be predicated upon merely allowing an animal to run at large where there is no law prohibiting it," nor can recovery be had as for an aggravated trespass if the person injured was not entitled to the possession of the premises where the injury occurred." Where the liability is based upon a contract relation between the person injured and the owner of the animal, scienter need not be shown," but, as the bailor impliedly warrants that an animal furnished by him it suitable for the purpose for which hired, he is liable on the breach of such warranty for injuries occasioned by the animal," and must give warning if he knows that the animal is dangerous."

**SS 3.**_Injuries to property by animals trespassing or running at large._\*\*\[89\]\_See 11 C. L. 110--In order to create liability for allowing animals to run at large,1 the owner must know or have reason to believe that such animals are likely to cause damage,2 and such damage must be the result of the owner's negligence although the animals were running at large in violation of statute.3 In Michigan one need not fence against a neighbor's cattle,4 even though by local authorization they are permitted to run at large in the public highways.5 Where the statute provides for the service of notice in case of damage done by animals in breaking through a law-

\*\*92.\*\*Code Supp. 1907, $ 2340, as amended by Acts 80th, Gen. Assem. p. 90. c. 81, imposing liability only for damages done while dog was worrying, maiming, or kill-

\*\*10.**Workhorse hitched to wagon in street**

\*\*11.**Workhorse hitched to wagon in street**

**11.**Workhorse** hitched to wagon in street**
ful fence, such notice is not required where no fence is involved,\* but, where a duty to fence rests upon the plaintiff, a failure to do so may be a defense to the action.\* Instructions in such actions must conform to the usual rules as to being within the evidence.\*

SS 4. \_Liability for killing or injuring animals.\_See 11 C. L. 111.\_The liability of railroads for killing stock is fully treated elsewhere.10 A ballee is liable for injuries to an animal under his care occasioned by his negligence,11 but, if the owner be present or by agent and has an opportunity to warn defendant, he must do so.12 A town may by statute be made liable for sheep killed by dogs for a failure of the selectmen to investigate such killing.13 Statutes providing for the erection of barriers at places where ice is cut are not designed for the protection of cattle running at large.14 The right of action for injuries caused by negligence is in the owner of the animal at the time of the injury, and does not pass to his successors in title.18 Instructions must conform to the evidence.16

SS 5. \_Contracts of agistment.\_17 See 11 C. L. 111.\_Only ordinary care is required

6. Under Rev. Code Civ. Proc. $ 831, pro- viding for service of notice in case of dam- unhitched horse from buggy without re-age by animals breaking through a lawful fence, or by swime, it is not necessary to and was injured, evidence held sufficient to serve notice where no question of a fence is involved. Bradey v. Mueller \[S. D.\] 118 NOV 1035.

1. Where crops were at different times injured by trespassing animals, defendant may plead and prove a particular defense extending to such damages as are the result of plaintiff's failure to maintain fences. Meyer v. English \[Neb.\] 118 NOV 255.

1. In an action for damages to grazing landing caused by sheep injuring water tanks thereon and by herding scabby sheep, where the evidence showed that there were seven surveys that could have been used in connection with the tanks, a charge that the evidence showed that those surveys were alleged to have been damaged was not contrary to the evidence, although only two of the surveys were actually entered by the sheep. Trippet v. Corder \[Tex. Civ. App.\] 117 SVW 186.

1. Search Note: See notes in 11 C. L. 111; 15 L. R. A. 249; 6 L. R. A. (N. S.) 911; 16 Id. 647; 16 A. S. R. 631; 36 Id. 831; 1 Am. Cas. 193; 13 Id. 275, 591; 13 Id. 419.

See, also, Animala, Cent. Dig. # 115-140, 172-174, 251-254, 282, 286, 287, 287-879; Dec. Dig. # 4345, 52, 73, 84 96; 2 Cyc. # 414-486; 2 A. & E. Enc. L (2ed.) 346, 8 Id. 443.

10. See Railroads, 12 C. L. 1542.

01. Master held liable for injuries to horse let in his care to be shod, and which ran away through negligence of employee. Rimmer v. Wilson, 42 Colo. 180, 93 P 1116. Where defendant's stable boy In charge of mare struck at her after she had finished drinking to make her return to stall whereby she slipped and was injured, court's finding of no negligence, having the effect of a jury verdict, was not error. Poncelier v. Palae Livery Co. \[Ala.\] 47 S 702. No negligence, where horse injured by breaking loose In stall was shown to have been tled and taken care of by defendant, In manner customary in livery stables. Bigger v. Acree \[Ark.\] 112 SWW 879.

01. Where ballee's employee negligently viding for service of notice in case of dam- unhitched horse from buggy without re-age by animals breaking through a lawful fence, or by swime, it is not necessary to and was injured, evidence held sufficient to serve notice where no question of a fence is involved. Bradey v. Mueller \[S. D.\] 118 NOV 1035.

01. Under statute making it the duty of the town selectmen to investigate killing of sheep by dogs within the town, and to decide whether or not sheep have been killed by dogs within the town, and making the town liable if selectman fails to perform his duty, if the selectman reports that he is unable to determine the question, he fails to perform his duty and action will lie against the town. Pub. St. 1906, **SS 5639** and 5644. Otis V. Bridport, $1 Vt. 493, 70 A 1061.

01. Pub. Acts 1899, p. 342, No. 221, pro- viding for erection of barriers where ice is being cut, was not designed to protect cat- the allowed to wander upon ice unattended in search of water. Richards v. Walitz, 153 Mich. 416, 15 Oct. Leg. N. 541, 117 NUV 193.

01. Since for negligence he who is responsible for the negligence act is responsible to him to whom the wrong is done, and if It be an injury to property the right of action is in the then owner, and not in his successors in title, one who bought cattle contaminated by the Texas tick from one who was the owner when they became so

**13**: Cur. Law. ANIMALS **SS 6.**

**of an agister in the care of stock entrusted to him,\[18\] and whether such care has been exercised is a question of fact.\[19\] A stable keeper's lien is inferior to the title of a purchaser for value and without notice.\[20\] Where the contract provides that the agister shall feed and care for animals and to return them in as good condition as when they were entrusted to him, he must, in the absence of fraud, bear losses occasioned by disease.\[21\] A contract of agistment may be incorporated with another contract so that the entire contract must be performed before recovery can be had thereon.\[22\]**

\*\*SS 6. \_Estrays and impounding.\[23\]_See 11 C. L. 112_--A municipality may, under its welfare clause, enact an ordinance prohibiting the running at large of cattle within the corporate limits,\[24\] regardless of whether the county in which such city is situated has adopted the provisions of the stock law or not.\[25\] Such an ordinance is directed against the stray and creates no liability for damages in the owner.\[26\] It is operative only within the corporate limits,\[27\] and, that other territory has been included, does not affect its operation within such limits,\[28\] but an addition to a precinct where the stock law is in force does not extend its operation to such addition.\[20\] Ordinances providing for the impounding of cattle running at large\[20\] are within the police power,\[81\] and the legislature may make it a misdemeanor to allow cattle to run

**15**: McBride v. Wallace \[N. D.\] 117 NW 857.

**16**: Injury to mare in wire corral held due to agister's negligence. Id. It was not reversible error to instruct jury as to the SME 1002.

**25**: Geer v. Thompson, 4 Ga. App. 756, 62

but served to more dearly define the degree of care imposed upon the agister as to barb wire fences (McBride v. Wallace \[N. D.\] 117 NW 857); nor to exclude testimony as to defendant's reputation as a careful man, since, regardless of reputation, he may have been negligent in the particular case (Id.).

**20**: Where a stable keeper parts with possession of a horse upon which he has a lien for keep, the title of a purchaser of the horse for value and without notice in superior to the lien of the stable keeper.

**30**: Moore v. Whitehead, $ Ohio N. P. (N. S.) : 40.

**21**: Where lease of sheep bound lessee to herd, feed, and generally care for them as for his own property, and to return them in as good condition as when he got them, he assumes losses through disease in the absence of fraud on lessor's part as to the health of the sheep. Power & Bro. v. Turner, 37 Mont. 521, 97 P 950. Under contract whereby defendant was to herd, feed, and generally care for sheep, owner was under no obligation to undertake treatment of disease among such sheep. Id.

**22**: Contract for pasturing stock and for cultivation of certain fields. (Bouvier v. Brass \[Ariz.\] 100 P 799.

**23**: Search Note: See notes in $ C. L. 163;

**24**: A. B. R. 271; 272, 90 Id. 211; 1 Ann. Cas. 893, 9 Id. 284.

See, also, Animals, Cent. Dig. **19**: 193-222, 422-440; Dec. Dig. **19**: 58-65, 103-110; 2 Cyc. 88-366, 375, 449, 452-456; 2 A. & E. Bunc. L (Id.) 378; 16 Id. 4; 8 A. & E. Enc. P. & P. 16.

**34**: Acts 1889, p. 1003, $ 6, providing that municipality in question "shall have power /\* pas and enact all laws and ordinances which may seem to them proper and just, not repugnant to the laws of this state and the United States." Stone v. Tallulah Falls, 131 Ga. 452, 62 SE 592; Southwestern sheep Co. v. Thompson, 2 Ga. App. 211, 62 SE 1002.

**25**: Geer v. Thompson, 4 Ga. App. 756, 62 SE 500; Southwestern sheep Co. v. Thompson, 5 Ga. App. 211, 62 SE 1002.

**26**: Ordinance providing that it shall be unlawful for stock to run at large and for the impounding thereof is directed against the animal and no liability for damages at- taches to the owner thereby. Ordinance under Act Oct. 1, 1903, Acts 1903, p. 565.

Jones v. Kines \[Ala.\] 47 S 179.

**27**: No civil liability attached to owner who lived outside city for damage caused by hog that had wandered within corporate limits and damaged garden. Jones v. Hines \[Ala.\] 47 S 739.

**28**: McKenzie v. Newion \[Ark.\] 117 SWV 553.

**29**: Change made by the court of county commissioners in boundaries between two precinds, one of which had adopted stock law and the other not, did not make the law operative in that part of the precinct where the lawat large within counties of a certain class, and may provide that such law shall become effective, if, upon the application of a certain number of freeholders, the commissioners find that the county is within the class to which the act applies.\[52\] The inclusion of extraneous issues in an election for the adoption of the stock law renders the election invalid.\[38\] Counties or townships that have adopted the stock law need not build a common fence but may declare certain boundaries to be such fences.\[34\] That an animal escapes without fault on the part of the owner, constitutes no violation of a stock law, prohibiting the running at large of cattle.\[38\] The owner of an animal impounded must pay the charge prescribed by the ordinance for its keep,\[38\] and must compensate the owner of the premises according to statute.\[37\] He cannot recover the possession of such an animal in trover if the impounding ordinance is valid.\[38\] The statute regulating the sale of impounded animals must be strictly complied with.\[38\]

## 7. Regulations as to care, keeping, protection and health.\[40\] See 11 C. L. 118

Although the keeping of an animal having an infectious or contagious disease is not culpable per se,\[41\] in some states the sale of such an animal is prohibited by statute.\[42\] A municipality may regulate the care and keeping of animals within the corporate limits,48 and may, as an incident to such control, impose a license tax,44 but such tax must be reasonable.48 Police regulations relating to the keeping of poultry within cities must be definite and certain.49 Federal regulations for the suppression of disease among cattle do not as a rule supersede state statutes, regulating the control of cattle within the state jurisdiction.47

Footnote 48: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

\_Interstate transportation; quarantine; inspection.\_See 11 C. L. 115--Duties imposed on carriers of live stock are elsewhere treated.48 A state may, in the exercise of its police power,49 enact laws to prevent diseased animals from entering its borders, but such laws must be reasonable 50 and must not interfere with commerce into or through the state beyond what is necessary for its self-protection.51 Regulations made by the secretary of agriculture pursuant to statute, relative to the transportation of cattle from a quarantined district and making violations thereof criminal, are quasi legislative, and derive their force from a strict compliance with the authority conferred by the statute.52 They are made for the protection of the cattle at the destination and no for the cattle transported.53 Indictments based upon the violation of such regulations must set out in detail facts showing that they are in exact compliance with the statute.54 Indictments for the violation of quarantine

Footnote 49: Regulations requiring dogs to be unavailable are within the police power of the municipality and will not be questioned unless the expressed rule is not applicable.48. See Carriers, SS 16.

Footnote 49: Statute making it unlawful to bring will of congress. Police regulation under Act of 1887, 24 Stat. at L. 386, e. 49, punish the owner of unmuzed dogs, held not in conflict with act of 1878, 20 Stat. at L. 173, c. 322 (U. S. Comp. St. 1901, p. 397). French v., District of Columbia, 33 App. D. C. 166.

Footnote 49: Ex parte McCoy \[Cal. App.\] 101 P 419.

Footnote 49: An ordinance passed by a board of supervisors imposing a license for pasturing sheep within the county held void as being unreasonable, and adopted for raising revenue and not for regulation of sheep business. Ex parte McCoy \[Cal. App.\] 101 P 419. A statute imposing a tax on dogs and making such tax a charge upon the land where the dogs are kept when they are kept there without the knowledge or consent of the landowner is void. Rev. St. 8283 as amended by 89 Ohio Laws, R. Mercick v. Giens, 79 Ohio St. 174, 86 NE 880.

Footnote 49: Police regulation, prohibiting keeping of poultry in any square or block which has 75 per cent of its territory improved, without obtaining consent of 75 per cent of residents within radius of 100 feet from boundaries of premises upon which fovils or pigeons are to be kept, held fatally defective because of Indeinfitness. District of Columbia v. Keen, 31 App. D. C. 541.

Footnote 49: In passing the Animal Industry Act, Act May 29, 1884, e. 60, 23 Stat. 31 (U. S. Comp. St. 1901, p. 259), and by making it the duty of the commission of agriculture to prepare rules and regulations for the suppression of diseases among cattle and to invite co-operation in such regard by the states, it was not the intention of congress to override state control of cattle within its jurisdiction, and such act apart from the action of a state has no binding force upon the state. Eshelman v. Union Stockyards Co., 222 Pa. 20, 70 A89. There was consequently, under statute, no authority to sustain a cause of action against a stockyards company for injuries to plain-tiff's cattle caused by Texas fever produced by the state.

Footnote 50: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 51: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 52: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 53: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 54: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 55: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 56: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 57: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 58: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 59: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 50: The National Bureau of Standards and Technology, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 51: The laws must not charge separate offenses."" It is no defense to a prosecution for bringing diseased animals into the state that the action is brought in another county than that in which the animals first entered." Before a state inspector can take charge of cattle for the purpose of dipping them he must have complied with all the prerequisites prescribed by the statute."

**SS 8. Marks and brands."--See 11 C. L. 110--A brand properly recorded is in some states made prima facie evidence of ownership." When a brand has been recorded, no one else can record the same brand or one similar thereto."**

**SS 9.**\_Cruelty to animals."See 11 C. L. 116--Laws for the prevention of cruelty to animals are a proper exercise of the police power." Such laws extend to dogs although they are not recognized as property." The killing of a sheep-killing dog is not within the statute," nor is the killing one's own dog if done in a humane manner." The condition of an animal found in the sole care of the defendant may raise a presumption of cruelty."

**SS 10.**\_Crimes against property in animals."See 11 C. L. 117--Larceny of animals prosecuted under general statutes is elsewhere treated." In many states it is

bill marked with word "Southern cattle" as v. Moss \[Or.\] 101 P 107. B. & C. Comp.' required by rules and regulations duly & 4201, requires a certificate of fraud to be recorded in full and mere entry of a memo-agriculture on March 30, 1907, fatally defective in not setting forth in detail facts showing that such regulations had been legally promulgated as required by the statute. United States v. Louisville & N. R. Co., 165 F 936.

**SS.**\_Indictment based upon violation of quarantine law, Act May 28, 1907 (Acts 1907, p. 1043), does not charge more than one offense in charging an unlawful transporting, an unlawful receiving and an unlawful unloading, Kansas City S. R. Co. v. State \[Ark.\] 119 SV 288.

**SS.**_Under a statute prohibiting the bringing into any part of the state diseased sheep, the fact that such sheep are brought into an interior county does not deprive the courts of such county of jurisdiction on the theory that the offense was committed in the county where the sheep first entered._

**Partrick v. State \[Vy.\] 98 P 58.**_Laws 1909, p. 219. c. 133, & 4, providing for the inspection, quarant-time and dipping of cattle, to authorize the inspector to proceed, he must first inspect the herd and find that the cattle are infected or have been exposed to infection, and second give the owner instructions as to the manner of dipping the cattle._

**SS 9.**_Marks and brands."See 11 C. L. 116--A brand properly recorded is in some states made prima facie evidence of ownership." When a brand has been recorded, no one else can record the same brand or one similar thereto."_

**SS 9.**_Cruelty to animals."See 11 C. L. 116--Laws for the prevention of cruelty to animals are a proper exercise of the police power." Such laws extend to dogs although they are not recognized as property." The killing of a sheep-killing dog is not within the statute," nor is the killing one's own dog if done in a humane manner." The condition of an animal found in the sole care of the defendant may raise a presumption of cruelty."_

**SS 10.**\_Crimes against property in animals."See 11 C. L. 117--Larceny of animals prosecuted under general statutes is elsewhere treated." In many states it is

bill marked with word "Southern cattle" as v. Moss \[Or.\] 101 P 107. B. & C. Comp.' required by rules and regulations duly & 4201, requires a certificate of fraud to be recorded in full and mere entry of a memo-agriculture on March 30, 1907, fatally defective in not setting forth in detail facts showing that such regulations had been legally promulgated as required by the statute. United States v. Louisville & N. R. Co., 165 F 936.

**SS.**\_Indictment based upon violation of quarantine law, Act May 28, 1907 (Acts 1907, p. 1043), does not charge more than one offense in charging an unlawful transporting, an unlawful receiving and an unlawful unloading, Kansas City S. R. Co. v. State \[Ark.\] 119 SV 288.

**SS.**\_Under a statute prohibiting the bringing into any part of the state diseased sheep, the fact that such sheep are brought into an interior county does not deprive the courts of such county of jurisdiction on the theory that the offense was committed in the county where the sheep first entered.

made a criminal offense to kill or injure animals belonging to another." If malice is essential, it must be toward the owner of the animal 70 and must be established beyond a reasonable doubt." Willfulness must be shown as in other criminal prosecutions." Procedure as to the degree of proof required," as to stating a single offense,74 and as, to sentence and punishment, is governed by the ordinary rules." An afflavit for the malicious shooting of a horse cannot be amended so as to lay the ownership of the horse in another." A justifiable defense of one's property is a defense to a prosecution for killing a dog." Expert evidence as to habits and pedigree is inadmissible in a prosecution for killing a dog, unless the defendant had knowledge of such facts."

## 13 Cur. Law.

**ANNUTUTIES.**

made a criminal offense to kill or injure animals belonging to another." If malice is essential, it must be toward the owner of the animal 70 and must be established beyond a reasonable doubt." Willfulness must be shown as in other criminal prosecutions." Procedure as to the degree of proof required," as to stating a single offense,74 and as, to sentence and punishment, is governed by the ordinary rules." An afflavit for the malicious shooting of a horse cannot be amended so as to lay the ownership of the horse in another." A justifiable defense of one's property is a defense to a prosecution for killing a dog." Expert evidence as to habits and pedigree is inadmissible in a prosecution for killing a dog, unless the defendant had knowledge of such facts."

## 13 Annutitles."

**The scope of this topic is noted below."**

**'An annuity is usually defined as a yearly sum of money granted by one person to another in fee for life or years, charging the person of the grantor only," but when created by will its payment is often made a charge on lands devised to a third**

**69. Poisoning horse of another. I Mill's**

**another he shall be guilty of a misde-ann. St = 1409 (Rev. St. = 1874). Jaynes v. People \[Colo.\] 99 P 325. Mutilating horse. Comp. Laws, = 11581. People V. Minney \[Mich.\] 15 Det. Leg. N. 1094, 119 NWP 918. Killing dog. Rev. St. = 1887, 1753. State v. Churchill, = 16 Idaho, = 645, 98 P 853. Shooting dog. Penal Code, art. = 680. Calwell v. State \[Tex, Cr. App.\] 115 SWP 697.**

**70. In a prosecution for mutlating a horse, mallee is an essential ingredient of the crime, and such mallee must be towards**

**71. Where trespassing dogs are chasing the owner or custodian of the animal and**

**and frightening hogs and cattle, the owner not towards the animal. prosecution under**

**of the premises in attempting to remove**

**Comp. Laws, = 11581, for cutting tongue off**

**home. People v. Minney \[Mich.\] 15 Det. Leg. N. 1094, 119 NWP 918. Not essential to**

**show expressed mallee; but mallee required**

**may be shown by the character of, and the circumstances surrounding, the crime. Id. Churchill, = 16 Idaho, = 645, 98 P 853.**

**71. In prosecution under Rev. St. = 1887, 1753, for malicious killing, maiming or**

**overhand of dog, state must show beyond**

**a reasonable doubt mallee against owner**

**of the dog, or that killing or woundings**

**was done in a manner to raise a presumption of mallee. State v. Churchill, = 15 Idaho, = 645, 98 P 853. Evidence held insufficient to show mallee in killing of dogs, worrying defendant's cattle. Id.**

**72. In a criminal prosecution for shooting a dog under Penal Code, art. = 680, defendant was entitled to introduce evidence tending to show that he killed the dog in the necessary protection of his sheep. Caldwell v. State \[Tex, Cr. App.\] 115 SWP 577.**

**73. Evidence held to sustain conviction for killing a calf. State v. Barton, = 214 Mo. = 316, 118 SWP 1111.**

**74. In a prosecution for illegally marking a dog, where the indictment charged**

**theft as well, objection that two separate offenses were charged would not lie where only. one count was submitted to jury. Gibbs v. State, = 54 Tex. Cr. R. = 631, 114 SWP 755.**

**75. One prosecuted for poisoning the horse of another, under 1 Mills' Ann. Stat. = 1409 (Rev. St. = 1874), providing that if**

**any person shall unlawfully, woundly, whindients**

**which is charged upon land. Id. That**

**always begin with the latest article on the subject. Use the latest topical index.** person,\[52\] and, in such case, it may be collected either by proceedings against the devisee or by lien against the land charged,\[53\] and an action against the devisee's estate to recover on the implied liability will not preclude an action on the lien.\[54\] Where an annuity created by will is not confined to the income of the estate, it is payable out of the corpus if need be.\[55\] As a general rule, an annuity is not apportionable, unless the grant shows a clear intention that it shall be.\[56\]

## Appendix A Appendix and Review

### The scope of this topic is noted below.\[1\]

### The Right in General, 127

A. Constitutional and Statutory Provisions: Policy of the Law, 127

B. Waiver, Election, Transfer, or Exinguishment, 128

C. Pendency of a Former Appeal, 129

B. Trenedy for Obtaining Review, 129

A. Appeal and Error, 129

B. Certification or Reservation, 130

C. The Common Remedies, 131

B. Time for Instituting and Perfecting,

156

C. Affidavits and Oaths, 160

D. Notice, Citation, or Summons, 160

E. Application for Leave to Appeal, 163

C. Pendency of a Former Appeal, 129

F. Allocatur, Order for Allowance of Appeal; Certificate, 163

A. Appeal and Error, 129

B. Certification or Reservation, 130

C. The Common Remedies, 131

B. Time for Instituting and Perfecting,

156

C. Affidavits and Oaths, 160

D. Notice, Citation, or Summons, 160

E. Application for Leave to Appeal, 163

C. Pendency of a Former Appeal, 129

F. Allocatur, Order for Allowance of Appeal; Certificate, 163

A. Appeal and Error, 129

B. Certification or Reservation, 130

C. The Common Remedies, 131

B. Time for Instituting and Perfecting,

156

C. Affidavits and Oaths, 160

D. Notice, Citation, or Summons, 160

E. Application for Leave to Appeal, 163

C. Pendency of a Former Appeal, 129

F. Allocatur, Order for Allowance of Appeal; Certificate, 163

A. Appeal and Error, 129

B. Certification or Reservation, 130

C. The Common Remedies, 131

B. Time for Instituting and Perfecting,

156

C. Affidavits and Oaths, 160

D. Notice, Citation, or Summons, 160

E. Application for Leave to Appeal, 163

C. Pendency of a Former Appeal, 129

F. Allocatur, Order for Allowance of Appeal; Certificate, 163

A. Appeal and Error, 129

B. Certification or Reservation, 130

C. The Common Remedies, 131

B. Time for Instituting and Perfecting,

- \[13\] Cur. Law. APPEAL AND REVIEW SS 1A.
- \[14\] A. Form and Contents of Transcript or Return, 211.
- \[15\] B. Authentication and Certification, 214.
- \[16\] C. Transmission, Filing and Printing, 215.
- \[17\] D. Amendment and Correction, 217.
- \[18\] 11. Practice and Proceedings in Appellate Court Before Hensing, 220.
- \[19\] A. Joint and Several Appeals; Consolidation, Severance, 220.
- \[20\] B. Original and Cross Proceedings, 220.
- \[21\] C. Amendment of Parties, 221.
- \[22\] D. Calendars, Trial Doeckets, Terms, 221.
- \[23\] E. Forming Issues; Pleading, Assigning, and Specifying Error, 221.
- \[24\] 1. In General, 221.
- \[25\] 2. Proper Parties to Assign Error, 223.
- \[26\] 3. Cross Errors, 224.
- \[27\] 4. Specifications and Averments, 225.
- \[28\] 5. Demurres, Pleas, and Replication, 229.
- \[29\] F. Briefs and Arguments, 229.
- \[29\] G. Dismissal and Abatement of Appeal, and Reinstatement of the Same, 236.
- \[30\] H. Ratsing and Waiver of Defects, 246.
- \[31\] 12. Hearing, 246.
- \[32\] 13. Review, 247.
- \[33\] A. Mode of Review; Review Proper or Trial De Novo, 247.
- \[34\] 14. \[35\] 15. \[36\] 16. \[37\] 17. \[38\] 18. \[39\] 19. \[40\] 20. \[41\] 21. \[42\] 22. \[43\] 23. \[44\] 24. \[45\] 25. \[46\] 26. \[47\] 27. \[48\] 28. \[49\] 29. \[50\] 20. \[51\] 20. \[52\] 21. \[53\] 22. \[54\] 23. \[55\] 24. \[56\] 25. \[57\] 26. \[58\] 27. \[59\] 28. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[54\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29. \[53\] 29. \[54\] 29. \[55\] 29. \[56\] 29. \[57\] 29. \[58\] 29. \[59\] 29. \[59\] 29. \[50\] 29. \[51\] 20. \[52\] 29. \[52\] 29.

128

13
right to review. The effect of an abandonment or dismissal of a perfected appeal is treated in a subsequent section.\[14\]

(SS 1) \_C. Pendency of a former appeal.\[15\]\_See 11 C. L. 120. There can be no review while a former proceeding for one identical in scope and operation is pending.\[16\] There may, however, be more than one appeal in the same case, when orders are made at different times which finally dispose of the subject-matter of those orders.\[17\] In some states appeal and error may be concurrently prosecuted.\[18\] In Louisiana a devolutive appeal may be taken after a suspensive appeal has been dismissed.\[19\]

SS 2. \_The remedy for obtaining review.\[20\] A. Appeal and error_See 11 C. L. 121 are the common remedies, the former to review equitable causes,\[21\] and the latter

issue to evict vendee in case possession was

taxes conceded to be due by collector did not not surrendered. Comeaux v. West \[Kan.\]

operate as release of errors, since right to

97 P 381. Fact that decree ordered restitution and authorized execution for that conferred by it. Schaefer v. Ardery, 281 Ill. purpose held not to amount to dures. Id.

557, 87 NE 343. Fact that after dismissing

Under Greater New York Charter, $ 1409,

main action court also dismissed garnish-

subd. 3, one who has executed undertaking

ment proceedings at plaintiff's request held

to obey order of dilation can appeal only

not to preclude him from appealing from

from the allowance fixed therein. People

such order of dismissal. Loveday v. Parker,

v. Culkin, 128 App. Div. 317, 112 NYS 702.

50 Vash. 260, 97 P 62. Giving of stay bond

P plaintiff used two defendants jointly for

by judgment defendant pursuant to Ball.

tort, and judgment was rendered against one

And. Codes & St. $ 5205, 5206, held not to

defendant and in favor of the other. Plaintiff

require dismissal of subsequent appeal on

appealed only from judgment in favor of said

theory that by giving bond defendant as-

one defendant, and took judgment against

sumed unconditional obligation to pay judg-

the other. Held that, since taking judgment

mant which he was bound to perform re-

again one of two tortessors used jointly

gardless of result of appeal and hence that

constitutes bar to taking judgment against

appeal did not present live question. Hamp-

the other, appellate court had no jurisdiction and appeal should have been dismissed.

14. See $ 116, post.

Caneron v. Kanwich, 2014, Mass. 451, 87 NE

605. Voluntary acceptance of benefits con-

Cent. Dig. $ 47-60, 1895; Dec. Dig. $ 13-16;

ferred upon him by the decree by a party

against whom an error has been committed

16. More granting of permission to take

operates as a release of errors, and may be

a suspensive appeal which is not perfected

pleaded in bar to his assignment of errors.

does not bar the taking of a subsequent de-

Sheaffer v. Ardery, 283 Ill. 557, 87 NE 343.

Paying award in condemn proceedings

and taking possession of property. Mac-

17. In condemn proceedings, appeal

farland of Pouilos, 32 App. D. C. 558. Where

defendant accepted benefit of order purging

him from contempt and discharging him

that appellant had no interest in the prop

from attachment on certain conditions, held

cay, and there being but one record. Chicaga & N. W. R. Co. v. Glos, 239 Ill. 24, 87

Krauss v. Krauss \[N. J. Err. & App.\]. 70 A 205. Acceptance of benefit of part of

eree, unless benefit is absolute right which

reversal would not affect. McKain v. Mullen

\[W. Va.\] 64 SE 829. Enforcing favorable

portion of judgment. McKee v. Goodrich

\[Neb.\] 121 NW 571. Tender of return of

benefits accepted does not operate to revive

right. McKain v. Mullen \[W. Va.\] 64 SE 829.

Held not to preclude appeal. Payment of

juddament. Linddenb v. Vogel, 131 App.

Dlv. 75, 115 NYS 962, rvg. 110 NYS 970.

Judgment in action to recover money was

rendered in favor of a claimant substituted

as defendant on suggestion of original defendant. Latter then paid money into court

and court paid it over to substituted defendant. Held that plaintiff was not there

by deprived of his right to appeal. Wood

Mercantile Co. v. McCado \[Ala.\] 49 S 856.

Decree held increase of assessment void

and restrained collection of taxes extended

on such increase, but provided that it should

not be construed as preventing collection

of taxes levied on original assessment con-

ceded to be due. Held that acceptance of

13 Curr. L. - 9

taxes conceded to be due by collector did not

1axes to evict vendee in case possession was

not surrendered. Comeaux v. West \[Kan.\]

operate judgments at law.21 Statutory provisions as to which method shall be adopted in particular cases are, of course, controlling.23 The suing out of a writ of error is sometimes held to be the commencement of a new action.24 Bankruptcy proceedings are specially reviewable under the act.25

(SS 2) _B. Certification or reservation.26 See 11 C. L. 111_--Provision is sometimes made for the certification to the appellate court before final judgment of certain questions of law for preliminary adjudication.27 Certification from one appellate court to another is treated in subsequent sections.28\_

snd proceed with it as such before master

- \[noitemsep,topsep=0pt\]
  18 Cur. Law. **APPEL AND REVIEW $$$ 3A.**

($$$ 2) \_C. The common remedies,28-Sec 11 C. L. 122 appeal or error, must, if adequate or applicable, be invoked rather than certiorari,30 prohibition,31 mandamus,32 or injunction,38 or a motion to vacate the judgment below.34

Footnote 38: The term $$$ 3A is not included in the term $$$ 3A.

Footnote 39: The term $$$ 3A is not included in the term $$$ 3A.

Footnote 40: The term $$$ 3A is not included in the term $$$ 3A.

Footnote 41: The term $$$ 3A is not included in the term $$$ 3A.

Footnote 42: The term $$$ 3A is not included in the term $$$ 3A.

Footnote 43: The term $$$ 3A is not included in the term $$$ 3A.

**Held not entitled to appeal:** One not party to action below. Jones v. Yantis \[Ky.\] 113 5W 111. Person not party to proceeding for prohibition order. Douglas v. Hamilton \[Ark.\] 120 SWY 387. Codedendant not served with process and not appearing in action. Nathan Mfg. Co. v. Edna Smeling & Refining Co., 130 App. Div. 512, 114 NYES 1037. Senior judgment creditor who was not party of record to proceedings by judgment debtor to quash levy under junior judgment, from order denying his motion to quash verit. Cable v. Magnie Moin. Co. \[S. D.\] 119 NWV 174. Purchaser at partition sale who was not party to suit from order settling aside sale or failing to confirm it. Thomas v. Elliott, 215 Mo. 598, 114 SWY 987.
37\. Where judgment against defendant defendant firm, appeal cannot take taken by persons composing firm. Greenstein v. First Nat. Bank \[Ala.\] 47 S 1036. Order in insolvency proceedings against bank requiring plaint to show cause why it should not be required to pay over to receiver certain sum in its hands belonging to insolvent, held to make it a party to record in so far as such collateral proceeding was concerned, so that it was entitled to appeal from such order. Anglo-Californian Bank v. California Super. Ct., 153 Cal. 753, 96 P 802.
38\. Since no one but an interested party may appeal, appellant must show by record that he is interested party and that he has been prejudated by judgment appealed from. Leach v. Blixby \[Neb.\] 120 NWV 427. In order to obtain relief on appeal, an intervener may not assall sufficiency of plaint/IFS pettion, alleging only cause of action against defendant, unless he also shows that judgment dismissing intervener's petition was erroneous and prejudial. Id. No one aggrietyed by order vacating void order. Boden-step v. Sauh, 117 NYES 349.

**Held to be parties aggriety:** Stockholder who instituted proceedings to administer assets of bank, in which receiver was appointed, by decree directing receiver to pay certain certificates of deposit to intervener. Kavanagh v. Bank of America, 239 11. 404.

**Gedman**, 141 Jill. App. 134, afd. 239 IIL.

**Gedman**, 142 Jill. App. 134, afd. 239 IIL.

**Held**, 143 Jill. App. 134, afd.

proceedings not inter parties, or which may affect others than parties, persons having a litigable interest * affected detrimentally may appeal. It has been held that an appeal taken by one not aggrived may be adopted by the party aggrived.40 On the death of a party before the appeal is perfected, his personal representatives may ordinarily be substituted as parties appellant or respondent, provided the cause of action survives.41

funds in receiver's hande. Haight & Freese * away from anyone aggrived right to appeal Co. v. Weiss \[C, C. A.\] 165 F 430. Defendant paid funeral expenses of decedent in con- \*tion, though he was not party to suit. sideration of conveyance to him of wife's \*. Elliott, 215 M. 698, 114 SVW 987. dover interest in land. Subsequently he prepared claim for amount so paid to estate which was allowed, and same refunded to * taken by her. Wimberly v. State \[Ark.\] 119 chase of dover interest, and hence had no ground for reversal of judgment in action to settle estate. Compton v. Lancaster \[Ky, 114\] * SW 260. Widow conveyed dover interest to * 116, Adament. Right of defendant to federal in consideration of payment of hus- \*band's funeral expenses. In action to settle estate, she did not ask to have such conveyance set aside nor dany allegation that she had abandoned her homesetated interest in property. Held that, though she was not * I think for said funeral expenses, she had no standing to ask reversal of judgment in * Ifton v. New Haven \[Conn.\] 73 A 1. Death said action. Id. One entitled to collect upon * of a party does not bar writ of error on be- \*foreclosure against two tracts cannot complain of judgment specifying order of sale. * Stern v. Marcuse, 128 App. Div. 168, 112 NYS 853. County judge held to have no right * Wynn, 139 Ill. App. 428. On death of party to appeal from judgment in favor of county. * Kirby's Dig. 143. Sumpter v. Buchanan * \[Ark.\] 13 SVW 809. Executor of ward and appeal subsequently taken, and notified of not her heirs at law held to have right to appeal from orders of probate court, made * Swing v. KHI \[Ind. App.\] 88 NS 721. Rule during ward's lifetime, directing and con- * Ifming sale of her property by her con- * defendants in action at law to recover per- * Appel of Dunn \[Conn.\] 70 A 703. sab, Beneficiaries of an estate have no appellable interest in a judgment against ad- * shift of which they were members. Id. Term minister in his personal capacity. Gilli * \[Ark.\] 72 A 728. One claim- * SS 677, 679, held to have particular reference * bill of exceptions on appeal from order of * Bruettles Creek Coal. v. Pomatte \[Ind.\] distribution, though she did not appear at hearing. In re Benner's Estate \[Cail.\] 99 P * F * method appeal in vacation against appelle, * 715. Next friend may sue out with error * who has died since rendition of judgment for insane person whose conservator falls and before service of notice, is Ineffectual. to act. Steele v. Wynn, 159 Ill. App. 428. * Defendant of appelle after term time app- * Persons enjoined in action to which they * were not parties may appeal by making * transcript was filed, held not to require themselves parties by motion to set aside dismissed. Id. Where complainant recor- * judgment or order complained of. Tatten- * her judgment for tract of land and died, ham v. San Francisco Super, Ct. \[Cal.\] 100 * P 248. On judgment fixing fees of receiver * with clerk of court of appeals within two after final account, which contained item * years, appeal was not subject to dismissal under first appointment which had been set because appellants statement did not desig- * aside by third person who had obtained it, * Date devises of deceased plaintiff as appellent spread. In re. E. D., Burguers Plant- * executors. Buchanan v. Boy/S's Exer \[Ky.\] 120 No 285. Suggestion of plaintiff's death, no such personal interest in suit to restrain * filling of copy of will with names of de- * public officers from exchange of public lands * visces, and taking out of process against * them, held a revitor of action against them * personal supreme court. McCandless v. Pratt, with one year after granting of appeal, * in time. Id. Act March 3, 1875, e. 137, p. 70 (Rev. St. 1899, 8 806), giving any \*party * \[S, 18 8t. 478, authorizing personal repre- * the suit aggrived" the right to appeal from Interlocutory judgments in actions of partities, partition which determine rights of parties, * and repeeling Rev. St. 1839, & 2246, giving * right to appeal from final judgment to "every * revivor, and not to require filing copy of person aggrived" held not to have taken * appointment in case where suit was revived

## 184 Appeal and review SS 3.1

(SS 3) B. Necessary or proper parties \[42\] See 11 C. L. 125 to be joined or brought in \[43\] include all persons who may be affected by a reversal.\[44\] Among them are all codefendants \[45\] who are joint in interest,\[46\] and coparities \[47\] who decline to join in the review. In some jurisdictions joinder of all coparities is not required,\[48\] and in

in names of representatives on motion in \[9\] 98 P 937.

on \[9\] 167 P 26.

1630.

See, also, Appeal and Error, Cent. Dig. \[10\] 1795-1876; Dec. Dig. \[11\] 321-336; \[12\] 355-789.

43. Duty of appellate court to bring in \[9\] 167 P 26.

absent necessary parties. Talbott v. Curtis \[11\] 63 SE 877.

44. See, also, post, \[12\] 6D. All those advertisely interested in judgment. Walker Bros. v. Skilris, 34 Utah, 353, 8 P 114. All parties to suit or proceeding who appear from record to have interest in order, judgment, or decree, challenged. Lewis v. Sittel \[13\] 65 P 157. All persons interested in judgment must be made parties to vacation appeal. Swing v. Hill \[Ind. App.\] 88 NE 721.

It interest of those made parties will be in \[9\] 167 P 26.

without reopening of case as to other parties as to whose interests judgment has become final by failure to appeal, appeal will be dismissed. Board of Com'rs v. Lemley \[1\] 101 P 109. Vrit of error dismissed where plaintiffs in error could prevail only on theory that defendants below, who were not made parties, were liable to plaintiff instead of plaintiff in error. Id.

Held necessary parties: One affected by preliminary injunction appealed from. City of Detroit v. Guarathy Trust Co. \[13\] 66 NE 417.

168 F 608. Defendants whose interests would be adversely affected by reversal.

Board of Com'rs v. Lemley \[1\] 101 P 103.

Pertles affected by assessment of damages and benefits in proceedings for establishment of drainage \[14\] 85 NE 99.

169 and benefits in proceedings for establishment of drainage \[15\] 60 NE 99.

ment of drainage \[16\] are necessary parties to appeal from such assessment, and failure to serve notice of appeal on any of the petitions for the district is fatal. In re Parley Drainage Dist. No. 7 \[Iowa\] 120 NVC 83.

Acts 32d Gen. Assem. 1907, p. 100, c. 95, authorizing boards of supervisors to employ counsel to represent district on appeals from their orders, held not to change rule. Id.

Held not necessary parties Lessors in action by lesges in oil snd gas lease for parcitation of their Interests thereunder. Beards- levy v. L'ansas Natural Gas Co. \[Kan.\] 86 P 859. Trustee of real property for benefit of minor heirs, who was appointed in di- vore proceeding but never appeared therein.

Love v. Lowe \[1\] 101 P 704. On appeal from judgment which lures to the benefit of certain corporations, officers not personaily interested, though made parties to judgment. Hester v. Greenwood \[Ind.\] 88 NE 498. Parties to record who were not parties to judgment, on appeal taken in term time from a judgment for inadower who alone contested establishment of highway by user under Burns' Ann. St. 1908, $ 763.

Pitser v. McCreery \[Ind.\] 88 NE 303.

44. See, also, post, \[12\] 6D. Petition in error by two of three defendants against whom judgment was rendered jointly for specified sum, to which other defendant was not made some a severance may be had.49 Making too many appellees is not a jurisdictional defect.50 Successors in title or interest may be substituted or brought in.61 In Louisiana there can be no failure of parties where the appeal is taken in open court.62

SS 4. \_Adjudications which may be reviewed, either generally or in one of two appellate courts. A. Statutes_58 may provide for the review of any proceeding, affix conditions, or withdraw the right.54

(SS 4) B. Reviewableness may be dependent on the general form or character of the adjudication.56 See 11 C. L. 126 The decision must amount to the judgment 58

pointing appraisers in condemnation pro-

district court on questions of law alone,

ceedings under Acts 1905, p. 61, c. 48, $ 5

sinces no exception can be taken thereto under

(Burns' Ann. St. 1908, $ 933). Lake Shore Sand

Cour and Prac. Act, $ 2, and, hence, is not

Cc. v. Lake Shore & M. S. R. Co. \[Ino.\] 88 NE

duty of clerks to certify papers to suprioror

764. Under Code Cliv. Proc. 1895, $ 172, any

court on claim of jury trial. Vrooman v.

and every party aggired may appeal with-

Arnold \[R. I.\] 72 A 661. Appeal does not

out joining anyone else, whether judgment

leg from Baltimore city court to court of

against him is joint or several. Spokane

appeals on order overwuling motion to qansh

Ranch & W. Co. v. Beatty, $7 Mont. 342, 96

proceedings of commissioners for opening

P 127. Where one of two defendants whose

streets. Lauer v. Baltimore \[Md. App.\] 73

jelnt interest is affected by judgment

a 162. Municipal court act was not intended

peals and other does not, will be presumed

that latter is satisfied with judgment. Id.

49. Actual notice of severance is essential

fendant. Hoff v. Parmelec Co., 141 71. App.

it any proceeding which detaches necessary

party. Clity of Detroit v. Guaranty Trust

court as are specified by municipal court

Co, \[C. C. A.\] 168 F 608. In order to work

act are appealable. Campbell V. Abbott, 60

everance of necessary party by allowance

Misc. 93, 111 NYS 782; Friedberger v. Stulp-

in open court of appeal in which he is not

jolned, he must be actually present at time

of such allowance. Id.

50. First Nat. Bank v. Farmers' & Merchants' Nat. Bank \[Ino.\] 86 NE 417.

01. See, also, ante, $ 3A. On death of

plaintiff after judgment and before appeal

is perfected, duty devolves upon defendant

to revive action or appeal by proving ap-

pointment of administrator and making him

party, as provided by Gen. St. 1902, $ 317,

617, $21, $22, Hamilton v, New Haven

\[Conn.\] 73 A 1. In event of assignment of

judgment before death of plaintiff, defend-

and should procure assignee to be made party

plaintiff to action or party to appeal under

Gen. St. 1902, $ 617, $21, $22, $31. Id. On

death of coefendant, held necessary to

make his heirs or personal representatives

parties to vacation appeal. Burns' Ann. St.

1908, $ 677. Swring v. Hill \[Ind. App.\] 88

In absence of express statutory provision to

NR 721. Rule held to apply to appeal from

judgment for defendants in action at law to

door orders, nor from rulings and decisions

recover personal judgment against each of

them for debts of partnership of which they

were members. Id. Where defendant, against

whom personal money judgment was ren-

dered, died after judgment and before appeal was perfected, held that his representa-

tive should have been made party instead

of his heirs. Herrly v. Pierce \[Ind. App.\] 86 NE 443. Decedents' real representatives

held necessary parties to appeal in action

in which he recovered land. Buchanan v.

Boyd's Ex': \[Key.\] 115 SW 222.

**%2. Since all parties to case not appellant**

are appellees. Guy v. McDuffle \[LA.\] 49 S

222.

**%3. See 11 C. L. 126. See, also, $ 1A, ante.**

**%5. See 11 C. L. 126. See, also, $ 1A, ante.**

\*\*%5. Serech Notei See notes in 20 A. S. R. 173;

\*\*%\*\*3. Can. 685.

See, also, Appeal and Error, Cent. Dig.

\*\*%\*\*3-7; Dec. Dig. $ 2; 2 Cyc. 607, $21-523.

\*\*%4. Writ of error appropriate proceeding

for review in awirpreure court of judgment of

and 136

APPEAL AND REVIEW $ 4B. 13 Cur. Law.

of the court as each on matters of law or fact as opposed to matters of discretion,"

and it must have reached a finality,"

become of record,"

been against appellant's

\[Ky.\] 114 SWV 1193. No appeal lies from order which has been abrogated by resetted order. Pepe v. Curtl, 114 NYS 415

57. No appeal lies, from decision on matter of discretion. Myers v. Circuit Court

until further order of court. Id: Test of \[V. Va.\] $ 82 SE 201. Held that supreme court

would not compel allowance of appeal from action of trial court in referring exception

whether particular proceeding or action is

to merits, matter being largely discretionary,

terminated by the action. Bristol v. Brent

and question involved being one to be determined from the evidence. Saint v.

\[Utah\] $ 95 H90. Decree is not final unless

quot its affirmance nothing remains but to

Market \[La.\] 49 $ 582. Refusal of single

justice to postpone entry of judgment pending application for reargument after delegon on appeal held not appealable. Powers

v. Sturtevant, 200 Mass. $1, 88 NE 789. While question ef whether court shall modify

order made by it is addressed to its discretion and not subject to review, applicable

court has control when order moved to be

resetted fails to recite all papers used upon

the application. Tuska v. Jarvis, 61 Misc.

24, 118 NYS 767.

ES. Ayers v. Anderson-Tully Co. \[Ark.\] 116 SWV 199; Smith v. Long \[Ind. App.\] 88 NYS 356; Wizeal Live Stock Co. v. McCaskill

Co. \[Fla.\] 49 S 501. Rule applies to appeal

from mandamus. Carter v. Warneck \[Fla.\] 49 S 186. Common-law rule that writ of error does not lie except to final judgment

applies, under Mills' Ann. St. 1727, to an

appeal as well as to a writ of error. Burlington & C. R. Co. v. Colorado E. R. Co.

\[Colo.\] 100 P 607. No appeal can be taken from interlocutory judgments, orders, or decrees unless specafally authorized by statute.

Chicago Terminal Transfer R. Co. v. Prencil,

281 141, 49, 86 NE 117. In absence of statutory provision to contrary, no appeal lies

from interlocutory order of Judge made at

chambers. School District No. 8 v. Zakkin

\[OkL\] 100 P 528. Appeal from interlocutory judgment is only permissionable from supreme court. Fox, v. Fox, 128 App. Div. 876, 113

NYS 121. Code Civ. Prec. $ 1340 provides

for appeal only from final judgment of

county court. Id. Review of interlocutory

judgment of county court is only by appeal

from final order or by motion in the appellate court for new trial under Code Civ.

Proc. $ 1001, in which case only questions

of law are presented. Id.

\[OkL\] 100 P 528. Appeal from interlocutory

\[OkL\] 100 P 302.

\[OkL\] 100 P 528. Appeal from interlocutory judgment is only permissionable from supreme court. Fox, v. Fox, 128 App. Div. 876, 113

NYS 121. Code Civ. Prec. $ 1340 provides

for appeal only from final judgment of

county court. Id. Review of interlocutory

judgment of county court is only by appeal

from final order or by motion in the appellate court for new trial under Code Civ.

Proc. $ 1001, in which case only questions

of law are presented. Id.

\[OkL\] 100 P 302.

\[OkL\] 100 P 402.

\[OkL\] 100 P 528. Appeal from interlocutory judgment is only permissionable from supreme court. Fox, v. Fox, 128 App. Div. 876, 113

dismissed at close of claimants' case and

NYS 121. Code Civ. Prec. $ 1340 provides

for appeal only from final judgment of

county court. Id. Review of interlocutory

judgment of county court is only by appeal

from final order or by motion in the appellate court for new trial under Code Civ.

Proc. $ 1001, in which case only questions

or law are presented. Id.

\[OkL\] 100 P 402.

\[OkL\] 100 P 528. Appeal from interlocutory judgment is only permissionable from supreme court. Fox, v. Fox, 128 App. Div. 876, 113

dismissed at close of claimants' case and

for appeal only from final judgment of

county court. Id. Review of interlocutory

judgment of county court is only by appeal

from final order or by motion in the appellate court for new trial under Code Civ.

Proc. $ 1001, in which case only questions

or law are presented. Id.

\[OkL\] 100 P 4
13 Cur. Law. **APPEL AND REVIEW $$$ 4B.**

plaintiff should recover title to land in ques-

not faxed by lease, and providing that deletion from it, and hence judgment in favor

termination of rental value for ensuing ten of principal defendant being practical disgusttion of cause in their favor. Lee v. British-American Morris. Co., \[Tex, Civ. App.\]

115 SWP 320. Judgment in action against

principal and swetries on his bond, though

it referred to principal and one swetty only, since, assuming that action was dismissed

as to one swetty, other would not be re-

leased thereby, Carlton v. Krueger \[Tex\]

Civ. App.\] 115 SWP 619, rehearing 115 SWP 1178. Judgment in action against swetty

and heirs of deceased swetty, though it did

not mention said heirs, where it expressly

provided that plaintiff should take nothing

by his suit. Id. Decree provided that it

should be void if defendants procured re-

straining order within ten days. Heid, that

immediate appeal by defendants before expiration of ten daye was waiver of condition

contained in decere, and had effect of

or once making same absolute and final.

Moore Printing & Typewrter Co. V. Na-

tional Sav. Trust Co., 31 App. D. C. 462.

Held not final: Order setting aside award

of damages in action for libel. Billings v.

Charlotte Observer \[N. C.\] 64 SE 435. Or-

der in condemation proceedings determining

ing that petitlner had power to condemn.

Eurlington & C. R. Co. V. Colorado, E. R. Co.

\[Colo.\] 100 P 607. Order discharging rule

for judgment against earnshose on his ann

wers to interrogatories. Brendlinger v.

Pliegel, 37 Pa. Super. Ct. 474. Order con

-

## 138 Appeal and Review SS 4B.

13 Cur. Law.

consent," and not due to his default." Decisions other than the foregoing are reviewable under various statutes if they determine the "merits" or "principles of the cause," "deny a rightful mode of trial," "in effect discontinue the cause" or "prevent judgment," " " or if they affect substantial rights." Whether the judgment in

not be dismissed though taken before judggment was formally entered. Owens v. Nauduens proof and defendant standing mute.

When order denying defendants' motion for that original order was entered prior to new trial on plaintiffs consenting to reduction of judgment was made and entered in minutes of court, held that defendants had

v. Lipschitz, 113 NYS 1088. Demurrer to that appeal was not premature because at time it was taken judgment as reduced had not been made or entered. Code Civ. Proc. $ 93, swbd. $. O'Rourke v. Finch \[Cal. App.\]

of time for amending. Held that judggment was not one by default and was appeal-

ception of no cause of action has been rendered, and suit dismissed, appeal taken before judgment has been signed is premature.

Mitchell v. Shreveport Creosoting Co. \[La.\]

49 S 655. Minute entry by clerk reciting that court maintained exception of no cause of action does not show appealable judgment.

Id. Statutory right of appeal from orders in term time granting an injunction cannot be defeated by act of clerk in copying order

answer. Smith v. Clyne, 15 Idaho, 254, 97 into minute book instead of into what he regards as a regular book for entry of such orders, nor by failure or delay of clerk in ooyping such orders into records of court.

Meredith v. Aurora, etc., R. Co., 142 Ill. App. 475.

68. Voluntary nonsuit not appealable. Netwow Mfg. Co. v. Baker \[Mdg. App.\]. 119

870; Hoss v. Palmer \[N. C.\] 68 SE 171. Appeal does not lie from Judgment by confusion. Code 1896, SS 477. Winkler Brockerage Co. v. Courson \[Ala.\] 49 S 341. Action of state board of equalization In dismissing appeal from assessment to which petitomer consented not reviewable. Borough of Kenifworth v. Board of Equalization of Taxes \[N. J. Law\]

72 A 986. Where allegations of bill as to conclusions of law drawn from, or provisions of law applicable to facts alleged are not correct as matter of law, an erroneous decree entered in accordance with such allegations may be assigned as error and re-

resed on appeal by interested party against whom decree procesces was entered. Lypbas v. Ft. Myers \[Fla.\] 47 S 346.

61. Default judgment is not appealable. Stern v. Marcuse, 138 App. 149, 112 NYS 653; McNece v. Sapan, 112 NYS 1117; Anderson v. Thorns, 113 NYS 730; Davies v. Myers, 113 NYS 9; Goldstein v. Rosenthal, 113 NYS 1012; Libelling v. Borg, 113 NYS 549; Merritt & Chapman Derrick & Vrecking Co. v. Koronsky, 113 NYS 741; Goldman v. Brooklyn Hights R. Co., 129 App. Div. 657, 114 NYS 182; Jefferson Bank v. Monti-

fore Reality Co., 114 NYS 862; Pepe v. Curtl, 114 NYS 415; Lindenborn v. Vogel, 131 App. Div. 75, 115 NYS 962; Martin v. Lefkowitz, 62 Misc. 490, 115 NYS 64, Judgment in attachment proceedings and order denying vacation of same are appealable when defendant was served with neither summons nor notice of entry of judgment, and he appeared only for purpose of moving to v. Gaete. Hotel Touraine v. Vwaite, 61 Misc. 54, 11 NYS 18, On return day defendant ap-

penared, Jolined issue and moved dismissal for insufficiency of pettition, and motion was

for insufficency of pettition, and motion was

13 Cur. Law.

- 13 Cur. Law. APPEAL AND REVIEW SS 4B.

a common-law case tried by consent by the court without a jury is reviewable depends on whether the statute authorizes such a method of trial." Under the various statutes, the appealability of orders and adjudications in interlocutory," provisional," extraordinary," and special " proceedings depends upon their finality

cannot defeat right of party to appeal from

stituted by state against bank requiring orders affecting his substantial rights
plaintiff to pay over to receiver certain which were foundation of judgments. Feist

sum in its hands belonging to insolvent held

fnal adjudications of plaintiff' claim that

Greater New York Charter (Laws 1897, p.

It had right to retain money until rights of

620, c. 378) SS 1476 provides summary proceed-

third persons, claiming interest therein,

ing for revocation of theatrical license with-

had been determined or to pay it into court

out appeal and Code Civ. Proc. 1 1356 provioles for appeal from order affecting sub-

to abide such determination, and hence in

studies for appeal from order affecting sub-

effect a final judgment against plaintiff In

stantial rights though 1 1861 provides no

colilateral proceedings growing out of main

appeal where specially denied, by statute,

action, and appealable though there had

summary proceedings under SS 1476 were

been no final derece in such main action.

applicable under SS 1356, where court ap-

neglio-Californian bank v. California Super.

pointed referee which was not authorized

Ct., 153 Cal. 753, 96 P 803. Order held final

under SS 1476. In re City of New York, 116

termsination of rights of one of said third

NYS 353.

persons who had intervened in proceedings

64. There being no law under which, in

to compel payment to receiver, and that

common-law case, facts may be tried to

plaintiff was not deprived of his right to

court without jury in district court, where

appeal therefrom because it was made

case is so tried by stipulation, judgment is

for day set for hearing of intervener's

not reviewable in circuit court of appeals.

Undi States v. Louisville & N. R. Co. \[C.

der to pay money to receiver is final and

C. A.J 187 F 306. No cartoon of law can

appealable. Burnham v. Barrett, 137 Ill. App.

be reviewed on wrift of error except those

119. Deeree allowing compensation to re-

arising on process pleadings or judgment,

culver for himself and solitcher which re-

unless facts are found by a jury by general

our special verdict, or are admitted by parties

and not appealable. Terry Lumber Co. v.

on case stated. Erkev. U. S. \[C. C. A.\] 169 F

Mildred Park Amusement Co., 143 Ill. App.

623. Under Rev. St. 1 \< 449, 760 (U. S. Comp.

001. Where receiver procured dismissal of

St. 1901, pp. 655, 570), where there is no

writ of error from apellate court to review

written stipulation waving jury, none of

order procuring receiver's report and dis-

the questions decided can be re-examined

charging him on ground that same was not

on writ of error. Id. Cal. Code Civ. Proc.

final, held that he could not thereafter, on

SS 631, permitting oral waiver, held not to

appeal to supreme court from judgment

apply in federal court. Id. Where, by con-

mitting him for content for failure to

sent, an action in district court trials by

they order directing him to pay over certain

jury under Rev. St. 1 \< 566 is tried by the

money, contend that former order was final

court. findings of fact and application of

and appealable. People, Y. Zimmer, 238 Ill.

legal conclusions thereto are not reviewable.

607, 87 NE 45. Judgment Having fees of re-

United States v. St. Louis, etc., R. Co. \[C.

ceiver after filing of final account contain-

C. A.J 169 F 78. Rev. St. 1 \< 647, 700,

ing item in his favor for fees under first

viding for review of cases treated after waiver

of jury, relates exclusively to circuit courts

first appointee filed general opposition to

and no similar provision exists with regard

account is Interlocutory judgment binding

to district courts. Id. Case tried without

on all parties and is appealable. E. D. Burjury may be reviewed under Rev. Code 1906,

surferes Planting Co., 122 L. \< 402, 48 S 121.

$ 7229, where entire evidence is presented.

Order dismalging petition for order to sus-

Massey, Wae \[N. D.\] 121 NW 75.

es. Order allowing temporary allemony, an account is interlocutory and not appealable.

able. Hilliday v. Sterlingworth R. Supply

appealable, not being among those 'enumer-

Co. \[P.A.\] 73 A 191. Order made in vacation

at 1 in Civ. Prac. Act. 1 330 (Comp. Laws,

sustaining exceptions to motion to vacate

$ 3425) and not being final. K to records of court. Meredith v. Aurora, etc., R. Co., 143 Ill. App. 475. Motion, to dissolve in lower court is not essential to right to appeal from order granting junction. Id. Trial courts discretion in granting or continuing temporary injunction is legal and subject to review. Swan v. Indian-ola \[Iowa\] 121 N NV 547. Under Wilson's Rev. & Ann. St. 1903, c, 66, art. 22, $ 561 (par. 4759), party who procurets temporary injunction may appeal from order dissolving or modifying same. Pioneer Tel. & C. Co. v. Chelsea \[Ok!1\] 102 P 83. Order of district Judge at chambers refusing to dissolve or modify temporary injunction previously granted during his absence by court judge is not appealable. School District No. 8 v. Echkin \[Ok!1\] 100 P 528. Acts 1907, p 206, c. 101, led to provide for appeal only from final order of judge wherein temporary injunction is granted or refused, and not to authorize appeal from order refusing to grant temporary injunction after hearing on order to show cause. Berger v. DeLoach \[TEx, Civ. App.\] 118 SV 557. Order held in effect one granting temporary injunction, though it expressly stated that injunction was refused, and hence to be appealable. City of Marshall v. Allen \[Tex. Civ. App.\] 116 SW 849. Court of civil appeals has jurisdiction of appeal from order of district Judge , in vacation granting temporary injunction restarling execution of judgment of court court. Texas & P. R. Co. v. Butler \[Tex. Civ. App.\] 114 SV 671. Order denying temporary injunction held not appealable under Ball. Ann. Codes & St. & 550, subd. 3, in absence of finding by court that party against whom it was issued was insolvent. Masorvo v. Campbell & Co. \[Vash.\] 100 P 102. Act March 3, 1891, as amended by Act June 6, 1800, authorizing appeal to circuit court of appeals where upon hearing in equity in district or circuit court, or by Judge thereof in vacation, an injunction is granted or continued, or a receiver appointed by an interlocutory order or decree in a cause in which an appeal from final degree may be taken to circuit court of appeal. construed, and held that "hearing in equity" as there used does not mean final hearing or trial or merits, stature expressly authorizing appeals from interlocutory orders, which are such as settle some inter-verning matter relating to cause. Taylor v. Breese \[C. C. A.\] 163 F 678. Temporary restarning order held an injunction within meaning of statute, and to have been granted upon a hearing in equity, and hence to be appealable. Id. Order granting temporary injunction held to have been made upon a "hearing in equity." Northern Pac. R. Co. v. Pacific Coast Lumber Mfr." \[C. C. A.\] 165 F 1. Order of court of equity estuarine further proceedings in action at law between same parties and involving same issues held order granting an injunction within meaning of Act March 3, 1891, 17, 26 F 82, as amended by Act April 14, 1906, c. 1627, 34 St. 116, and to be amenable. Grefas v. Mutual Life Ins. Co. \[C. C. A.\] 165 F 48. Where, in response to order to show cause why injunction should not issue. defendants present admissible opposing afflavtions and letters but court refuses to read or hear them, and orders injunction until further order of court, there is hearing in equity. Shubert v. Woodward \[C. C. A.\] 167 F 47.

and effect, and the same is true of orders in contempt proceedings." Decisions by nonjudicial boards or tribunals are reviewable only by statute." Rulings relating to pleadings," and process," and matters of practice before and at the trial," are

69. Decree adjouding person guilty of | 688. Order requiring answer of defendant to contempt and providing for punishment unless he compply with courts order is interlocutory, and not appealable. Code 1906, $ 139. Nutt v. State \[Miss.\] 49 S 146. Appeal lies from decree denying and dismissing complainants' petition that respondents be adjudged guilty of civil contempt. Jastram v. McAaslan \[R. I.\] 71 A 454. Judgment of circuit court fining one for contempt for violating injunction against infringement of patent is reviewable in circuit court of appeals by writ of error. Continental Gin Co. v. Murray Co. \[C. C. A.\] 162 F 873. Judgment holding one guilty of contempt for dismissing order made in action at law, being for protection of rights in litigation of party thereto, is not final or reviewable. Interrational Paper Co. v. Chaloix \[C. C. A.\] 165 F 436. Such judgment not being final, order for enforcing which it was made could not be regarded as final. Id.

01. Applicant for certificate to practice medicine may appeal to circuit or superior court from action of board of medical examinners refusing to give him examination or to grant him certificate. Burns' Ann. St. 1908, $ 8405. State v. Indiana State Board of Medical Registration & Examination \[Ind.\] 87 NE 139. A review of proceedings before State board of medical examinners by district court is "special proceeding" from which appeal lies under Rev. Codes, $ 7098, 7099. State v. District Court of Second Judicial Dist. \[Mont.\] 101 P 961. Appellate division has jurisdiction to review determinations of board or reinforced commissioners. In puged by Code Pub. Gen. Laws 1904, art. 18, Buffalo Frontier Terminal It. Co., 131 App. Div. 503, 115 NYS 483. Appeal to district court under Millis Ann. St. 802 from order of board of county commissioners disallowing claim against county is not a special proceeding, but proceeding is a civil action, and final judgment of district court is re-viewable by supreme court under cons. art.

6, $ 2. Washington County v. Murray \[Coo.\] 100 P 588. Allowance by commissioners of part of claim against county in full payment thereof held not such a definite and certain order of disallowanceanceance as to authorize appeal from such disallowance under Mills Ann. St. $ 802. Id. Appeal from decision of board or officer valuing property for taxation is purely statutory and must be to statutory tribunal. Clay County v. Brown Lumber Co. \[Ark.\] 119 SWP 251.

71. Judgment for defendant entered on plaintiff's refusal to join issue on denial of motion for judgment by default for want of sufficient plea and afflawit of defense is final judgment as to plaintiff, and appealable. Smith v. Woman's Medical College \[Md.\] 72 A 1107.

Rulings on motions to make more definite and certain. Order requiring complaint to be made more definite and certain and in default thereof that it be stricken out "In-volves the merits of the action or some part thereof" and "determines the action and prevents a judgment from which an appeal might be taken" within meaning of Rev. Laws 1905, $ 4365, subda. 3, 5, and appealable.

Lovering v. Webb Pub. Co. \[Minn.\] 120 NW NW

## 143 Appendix and Review 14.

Generally not reviewable except under express statutory provisions, or where they in effect finally determine the action or involve substantive rights on the merits. Dismissals14 and nonsuits7 are usually reviewable only when determinative of the action.

judgment everruling demurrer rather than |

pealable. Levy v. Spier, 113 NYS $41. Order by appeal. Ulman v. Tanner, 127 App. Div. 808, 111 NYS $44. Judgment in favor of |

define v. Ayres \[C. C. A.\] 164 F $41. Order either party on demurrer to declaration is |

then and reviewable. Tomlinson v. Armour & Co., 76 N. J. Law, 748, 70 A $31. Decision of court on issue of law raised by demurrer to pleading not appealable, but remedy is |

to appeal from judgment entered on decision. Mann v. Press Pub. Co., 117 NYS $79. Order on denurrer in municipal court net appealable. Schumer v. Kohn, 111 NYS $23; Vatson v. Durges, 117 NYS $48. Order merely sustaining damurrer to complaint without finally determining action in any way. 18 not appealable, it not being one which in effect determined action. Giant Powder Co. v. Oregon W. R. Co. \[Or.\] 101 P 209. Rulings on demurrers which, if compiled with would result in submitting immaterial issue te jury, are appealable. Prolate Court v. Fitz-Simon \[R. I.\] 71 A $41. No writ of error from judgment merely over-rolling demurrer. Ritchie County Bank v. Kitchie County Ct. \[W. Va.\] 63 SE 1098. Rulings on motiene to ritzkel Refusal to strike claim for damages from complaint not reviewable since defendant could object to proof of same or charge of same if not recoverable. North Alabama Coal, Iron & R. Co. v. Jones \[Ala.\] 47 S 144. Judgment reciting that plaintiff's motion to strike part of amended answer was sustained, that court upon its own motion ruled that petition did not state cause of action that plaintiff refused to plead further and that, on defendant's motion. cause was dismissed, there being no appearance of demurrer was not final or appealable. Bick v. Umstated \[Mo. App.\] 117 SW $42. Order retrising motion to strike portions of answer as frivolous, not appealable. McCandless v. Mobley, 81 S. C. S03, 62 SE 260. Rulings as to amendment: Order refusing to permit filling of amended petition not final or appealable. Poor v. New South Brew, & Ice Co., 33 Ky. L. R. 1088, 112 SW $18. Order overruling motion asking permission to withdraw amended petition which had already been stricken from files is not order from which proceeding in error lies. Dlive v. Harmon \[ORL\] 101 P 1125. |

%2. Order quashing summons, not being one of orders enumerated in Rev. St. 1887, $480, subd. 3, is not appealable but can only be reviewed on appeal from judgment. Mangle v. Williams, 15 Idaho, 642, 98 P 848. %3. Administrative order joining parties, directing compliance with order, appointing trustees, and ordering hearing before reference, is not immediately apsealable. BX parte Ferguson \[S. C.\] 64 SE 750. Order denying motion that clerk return moneys deposited with him as tender is not appealable, such deposit not being proper tender and clerk a more stakeholder not within purview of court as such. Campbell v. Abbott, 60 Misc. 93, 111 NYS $782. Order denying motion to amend findings of fact and conclusions of law not appealable. In rz Vikhannis Co. \[Minn.\] 121 NYS 212. Order denying motion to correct record is not apsealable.

**13** Cur. Law.\*\* **APPEL AND REVIEW SS 4B.** **143**

tion and refusals to make such orders are not reviewable.74 Judgments for costs 77 or denying costs,78 and orders relating to the taxation of costs,79 or the giving of security for costs,80 are not separately reviewable, in the absence of statutory provision to the contrary. Rulings on motion for a new trial are usually held not appealable in the absence of a statutory provision to the contrary.81 In general an ex parte order is not appealable; the remedy is to have it set aside.82 Orders after

- **amend and then informally announced he** **give security for costs. Chapman v. Presz- would take nonsuit. Id.** **burg, 115 NYS 160.** **76. Order denying motion to dismiss com- plaint on ground of lachea. Berkowitz v.** **rul for newly-discovered evidence. Caseri Brewery, 113 NYS 819. Denial of motion to dismiss position in condemamation proceed- infaa. Chicago Terminal Transfer R. Co. v.** **rul, 236 Ill.** **491, 86 NE 117.** **Held impregnable: Bringing up case on ex- captions to municipal courts, order overvul- ing plea in abatement and by appeal from order overvuling motion to dismiss, held proper practice. St. 1906, p. 310, c. 342.** **Potter v. La Pointe Mach. Tool Co. \[Mass.\]** **485 NE 418.** **77.** **Held appeniable: Order adjudging con- tempt and imposing costs as penalty. Ball.** **Ann. Code & St. 5811.** **Drainage Dist. No. 1, v. Costello \[Vasah.\]** **101** **497.** **Rule that writ of error will not be from judgment for costs only applies only where awarding of costs is discretionary, and not where it is contended that they should have been awarded to a party under a proper construction of positive law. Scaterd v. Love \[C. A.\]** **146 F 53.** **Held not appealable: Order awarding eets. Bonnell v. Campbell, 143 Ill. App. 251.** **Judgment for costs, unaccompaniled by finding on merits or order dismissing action. Benjamin v. Chicago, I. & L. R. Co., 140 Ill.** **App. 312.** **Mere judgment for costs and costs cannot be considered as affecting right to appeal. Galvin v. Shafer \[Ky.\]** **113 SW 485.** **Judgment for costs alone where merits not adjudicated, though entered for defendant after verdiet. Mitchell v. St. Petersburg & G. R. Co. \[Fla.\]** **47 S 614.** **Remedy for excessive taxation is by motion for relaxation. Loewer v. New York Taxicab Co., 115 NYS 187.** **Since justice of city court has power to revise or recall his decision, appeal from order imposing costs on ground that memo- rundum did not mention costs is frivolous. Orlando v. Palladino, 61 Misc. 103, 112 NYS 1118.** **78.** **Held not appealable: An order refusing to tax costs. Great Northern Moulding Co. v. Bonewer, 128 App. Dlv. 101, 112 NYS 466.** **That part of order sustaining demurrer which refuses to tax costs. Id. Denial of motion for damages and costs to patente in proceedings for contempt for infringement. Cazier v. Mackie-Lovejoy Mfg. Co. \[C. A.\]** **168 F 101.** **73.** **Order of municipal court denying re- taxation of costs not appealable. Kaliski v. Kaufman, 62 Misc. 274, 114 NYS 811.** **Averbuk v. Hochmelk, 63 Misc. 237, 117 NYS 187.** **80.** **Held appealable: Order retaking costs amounting to 5260.15.** **Linforth v. San Francisco Gas & Elec. Co. \[Cal. App.\]** **99 P 716.** **Held not appealable: Order for security for costs with stay until filed. Clark v. Bay Circuit Judge, 154 Ill. 483, 15 Det. Leg. N. & Ell, 117 NYS 1051.** **Order denying motion to dismiss.** **Held not appealable: Order retaking costs.** \*\*Held not appealable: Order retaking costs. Chapman v. Presz- by
  judgment are generally reviewable if they newly determine rights," as in the case of orders on motions to vacate or modify judgment," or to open defaults." Ordinarily an appeal will not lie from a part of a judgment " unless it is severable." Decisions of lower appellate or intermediate courts are reviewable in cases usually prescribed by statute " if they possess finality." Error will not lie to a judgment

rect same, and SS 2699, that report be taken to be correct except so far as surcharged or falsified in suit in proper time, except to execute's account could not appeal from order confirming same. Owens v. Owens's " \[X\] 63 8B 990.

83. Special order made after final judgment of dismissal for failurement affecting said judgment, although not dependent upon it, is appealable. Magee v. Solano County Super. Ct. \[Cal. App.\] 101 P 532. Special order after judgement directing the payment of money levied upon under the judgment and sold on execution sale is applicable under Code Civ. Proc. $ 939, subd.

01. Id. Order of superior court requiring varieties on undertaking, on appeal after money judgment in attachment suit, to justify before 29 days from filing of exception to their sufficiency, in special order made after final judgment and is appealable under Code Civ. Proc. $ 963, even if made without jurisdiction. Holt v. James \[Cal. App.\] 101 P 1065. Appealing to court of appelas without permission from order of appellate division for distribution of surplus minors arising upon foreclosure of mortgage by action, such orders not being made in the action, even though entitled therein, but in special proceedings commenced after action is ended by a final judgment. Velleman v. Rohring, 193 N. Y. 439, 86 NE 476.

01. Held appealable: Order overruling motion to set aside void judgment. Balridge v. Balridge \[Key.\] 117 SW 253. Order overruling motion to vacate judgment of dismissal and for costs is special order after final judgment, appealable under Rev. St. 1899, $ 806. State v. Riley \[To.\] 118 SW 647. Judgment on motion to vacate judgment in lie of writ of error oram nohs. Id. Order, vacating judgment in proceedings under Kirby's Dig. $ 4431-4437, to vacate judgment rendered at former term which is equivalent to independent action for that purpose. Ayers v. Anderson-Tully Co. \[Ark.\] 116 SW 199. Order vacating judgment or granting new trial at same term as when judgment rendered, where appellant consents to judgment absolute on affirmance. Kirby's Dig. $ 1188. Statute inapplicable to order rendered at prior term. Id. Order setting aside of derece of three years' standing, from which three had been no appeal on ground of no jurisdiction, to extent of determining jurisdiction in original decree. Gartman v. Lightner \[Ala.\] 49 $ 413. Order denying petition to vacate judgment held a "final order made after judgment which affects a substantial right" within Ball, Ann. Codes & St. $ 6500, subd. (Piercex's Code, $ 1048). Kath v. Histogenite Medicine Co., $ 0 Vash. 454, 97 P 464.

Held not appealable: Order vacating decrease of divorce. Botts v. Botts, 142 Ill. App. 216. Order refusing to set aside judgment of dismissal for failure to prosecute. Ellis & Co. v. Branneen \[Ala.\] 49 S 1034. Judgment overruling motion to set aside judgment. Kramer v. Horowitz, 111 NYS 697. Order vacating and set-time aside default of defendant, made before entry of any judgment in the action, not being one of the interlocutory orders mentioned in Code Civ. Proc. $ 963, and not being an order after judgment. Savage v. Smith \[Cal.\] 97 P 821. Order setting aside judgment against garnishee and permitting him to answer. Darby v. French \[Key.\] 112 SW 1132. Final order in default in a summary proceeding in municipal court. Browning v. New York Leasing Co., 111 NYS 704. Order denying motion to vacate default judgment and dismiss case is not order refusing to repeat default judgment such as would be appealsable under munic- and? Bialridge \[Key.\] 117 SW 253. Order overruling motion to vacate judgment. Bialridge \[Key.\] 117 SW 254. Order overruling motion to vacate judgment. Bialridge \[Key.\] 117 SW 255. Order overruling motion to vacate judgment of dismissal and for costs is special order after final judgment, appealable under Rev. St. 1899, $ 806. State v. Riley \[To.\] 118 SW 647. Judgment on motion to vacate judgment in lie of writ of error oram nohs. Id. Order, vacating judgment in proceedings under Kirby's Dig. $ 4431-4437, to vacate judgment rendered at former term which is equivalent to independent action for that purpose. Ayers v. Anderson-Tully Co. \[Ark.\] 116 SW 199. Order vacating judgment or granting new trial at same term as when judgment rendered, where appellant consents to judgment absolute on affirmance. Klyby's Dig. $ 1188. Statute inapplicable to order rendered at prior term. Id. Order setting aside of derece of three years' standing, from which three had been no appeal on ground of no jurisdiction, to extent of determining jurisdiction in original decree. Gartman v. Lightner \[Ala.\] 49 S 413. Order denying petition to vacate judgment held * 13 Cur. Law. **APPEL AND REVIEW $ 4C.**

rendered pursuant to directions given on remand,"\* but the contrary is true of a judgment rendered pursuant to a direction to make new findings of fact and conclusions of law and enter judgment thereon."

(SS 4) _C. Reviewableness may depend on character or value of action, subject-matter, or controversy._"22 _See 11 C. L._"The action or proceeding must be such as is covered by the statute relating to appeals "3 and in order to be reviewable by civil

Safe Depostit Co., 193 N. Y. 92, 85 NE 801. \*\*Pace & Co. v. Atlantic Coast Line R. Co. \[S. Under Code Civ. Proc. $ 1336, held that **C.**\] 64 SE 915. Judgment of county court where appellate division reverses an Interlocutory judgment, and an order at special term is subsequently entered thereon, un-successful party must appeal to appellate division, though in case of affirmance he

from Judgment or order of county court appending or refresing to appoint administra-judgment of special term. MeNamara v. Goldman, 194 N. Y. 315, 87 NE 440. \*\*Pace & Co. v. Atlantic Coast Line R. Co. \[S. Under Code Civ. Proc. $ 1336, held that **C.**\] 64 SE 915. Judgment of county court where appellate division reverses an Interlocutory judgment, and an order at special term is subsequently entered thereon, un-successful party must appeal to appellate division, though in case of affirmance he

from Judgment or order to county court appending or refresing to appoint administra-judgment of special term. MeNamara v. Goldman, 194 N. Y. 315, 87 NE 440. \*\*Pace & Co. v. Atlantic Coast Line R. Co. \[S. Under Code Civ. Proc. $ 1336, held that **C.**\] 64 SE 915.

###### Appendix A Appendix and Review 14.

The appendix is a summary of the results of the paper.

1 The 134 question particularly pointed out," set up," necessary to a decision," and adversely or prejudicially decided, or a question involving the validity 6 or construction 6 of stat-late court has no jurisdiction where constitures that act complained of is in violation of statute is involved. Botts, 142 Ill. App. 216; Baumelister v. Fink, 141 Ill. App. 372. Appeal involving construction of state constitution not within jurisdiction of apellate court, Fitch v. Lewis-town, 137 Ill. App. 570. Case involving constitutionality of statute transferred from appellate to supreme court, former having no jurisdiction. Inland Steel Co. v. Yedink \[Ind. App.\] 86 NE 503; Pittsburgh, etc., R. Co. v. Peek \[Ind. App.\] 87 NE 153. Where constitutional question presented, apellate court cannot take jurisdiction on ground that question has been settled by supreme court. Thus preventing decision of supreme court and review? by federal supreme court. Pittsburg, etc., R. Co. v. Peek \[Ind. App.\] 88 NE 627. Court of appeals has no jurisdiction of ease turning on constitutional question. Walker v. Dunham \[Mo. App.\] 115 SW 186; Emery v. St. Louis & S. F. R. Co. \[Mo. App.\] 116 SW 491.

Constitutional question involved: Whether filling of petition in bankruptcy by defendant and order of bankruptcy court enjoining prosecution of action subsequently instituted against him in state court in another state were bar to later action, state court holding that they were not, held to draw into question authority exercised under the U. S. within meaning of Const. art, & 12. Beekman Lumber Co. v. Acme Harvester Co., 215 Mo 221, 114 SW 1087.

No constitutional question involved: Argument that court did not correctly construre mechanics' lien law. Boylan v. Chicago Title & Trust Co., 240 Ill., 413, 88 NE 881. Assignment that court merely in taking case from jury thereby violating Const. & 28. art. 2, and also erred in instructing for defendant thereby depriaining plaintiff of property rights in violation of Const. & 30, art. 2. Davis v. Thompson, 290 Mo. 192, 107 SW 1067.

Case held merely to involve question whether propposed submission to voters of question whether saloons should be closed on Sunday was one of public policy within meaning of 'Florud's Rev. St. 1905, p. 967, c. 46. People v. Cannon, 286 Ill. 179, 86 NE 215. Whether, in case where injunction is only an incident to main subject of litigation, party enjoined is, on motion to assess damages on injunction bond, entitled to recover his attorney's fees for defending suit, or whether he actually employed an attorney. Wabash R. Co. v. Yahangian, 218 Mo. 566, 117 SW 722. Supreme court does not acquire jurisdiction where constitutional question has been settled by previous decisions. Pittsburgh, etc., R. Co. v. Peek \[Ind.\] 87 NE 644; Pittsburgh, etc., R. Co. v. Peek \[Ind.\] 88 NE 939, 627; Boylan v. Chicago Title & Trust Co., 240 Ill. 418, 88 NE 951, Lohmeyer v. St. Louis Corage Co., 214 Mo. 685, 113 SW 1108.

2. Must be preserved for review on record. People v. Chicago, 238 Ill. 146, 87 NE 807.

1. Question must be preserved for review on record. People v. Chicago, 238 Ill. 146, 87 NE 207. Question must have been raised below. Haas Elec. & Mfg. Co. v. Scripenski & Mfg. Co. v. Scripenski & Mfg. Co. v. Scripenski & Mfg. Co. v. Peek \[Ind. App.\] 86 NE 248. Appeal on trial court's refusal to compel witness to answer does not raise constitutional question when nothing in the abstract shows objection on constitutional grounds by witness. Lyons v. Hammond Elevator Co., 189 Ill. App. 495. Question held waived where defendant failed to raise it by answers or instructions. Lohmeyer v. St. Louis Corage Co., 214 Mo. 685, 113 SW 1108. Where order of county court appealed from expressly recited that statute in question was constitutional, held that it must be concluded that question of its constitutionality was raised in trial court, there being nothing to contrary in the record. In re McWhirter's State, 235 Ill. 607, 85 NE 918.

Question held -aised too late when first raised in motion for new trial. Haritzler v. Metropolitan St. R. Co., 218 Mo. 562, 117 SW 1124. Where question first arose on motion after judgment, was timely presented in motions for new trial and in arrest. Wa-bash R. Co. v. Flannigan, 218 Mo. 566, 117 SW 722. In divorce action where answer alleged as defense foreign judgment of divorce, and reply alleged such judgment void as contravening constitutional provisions, constitutional question was prop-only raised. it being impossible to raise it earlier. Hanks v. Hanks, 218 Mo. 670, 117 SW 1101. Where point in litigation cannot be decided without construring particular clause in the constitution, appeal must be taken to supreme court whether such questions is raised or not. Wabash R. Co. v. Flannigan,

## Appendix A Appendix and Review 14.13

The 14.14 (1996) (1997) (1998) (1 or a franchise14 or title to office,18 or the legality of fines or penalties,14 or conflict between decisions of courts of concurrent jurisdiction,11 or a minimum18 or maxi-

237 ILL 416, 86 NE 635. Where amended | threatened trespass by road overseer who pleadings conceded conveyance of land and | plead title in county. Id. sought merely to recover balance of pur- |ZCourt of appeals has jurisdiction ohase price, though deeere found that dead |I

"recovered," including or excluding costs,24 and interest,25 according to the terms

utrix having estate in possession in excess

of $4,500, and directing probate court to allow appeal from order, appointing an admin-

itffer on note given for balance of purchase

itrator pendente litle, held not within jurisdiction of court of appeals. State v. Imel

tried-together in plaintiff's suit, and defend-

\[Mo. App.\] 118 SVW 97. Court of appeals

would have no jurisdiction of appeal from

\[Held that judgment settled entire contro-judgment of circuit court directing probate

\[Versy, and was one for payment of money,

\[

court to grant appeal from judgment in-

\[

volving dispute as to rightful possession of

\[

not to supreme, court. Id. Jurisdiction of

property valued at $35,000, and hence has no

applicable court can not be made to rest

\[

jurisdiction over same subject by writ of

upon amount involved in garnishment pro-

\[

prohibition against circuit court or judge

\[

ceeding, since such proceeding is merely

\[

thereof. State v. Mosman \[Mo. App.\] 115

\[

anillitary to main action which is con-

\[

SVW 1041.

rolling in determining jurisdictional amount.

\[ of the statute. Whether the action is legal or equitable,29 or the right to a jury trial,27 is sometimes the test. Probate 28 and administration,29 orders, and lunacy 30 or curatorial 31 proceedings, are generally appealable under special statutes, if at all. Federal review of state or territorial decisions, or the right to a further appeal from the circuit court of appeals to the United States supreme court, or the right of direct appeal to it, depends upon the existence 32 of a real, meritorious 33 federal question,34 properly raised,35 necessarily involved,36 and finally decided ad-

26. Actions for divorce are suits in equity and, hence, supreme court has exclusive ap-ellate jurisdiction in such cases. Const., not., 6, 4. Stewart v. Torrance \[Cal. App.\]

Laws, c. 162, $ 8, supreme judicial court has jurisdiction of appeal from decision of debate court under St. 1906, p. 97, on petit-art. 6, $ 4. Stewart v. Torrance \[Cal. App.\]

tion of husband alleging that his wife has asserted him where neither that statute nor headquarters to compel trial court to settle bill of exceptions in such a suit refused as $6, $ 18, c. 142, $ 11 and c.

not presented in time, though an appeal to an appellate court is under consideration, as 136, $ 81 NE 303.

to do so would be invasion of province of supreme court. Stewart v. Torrance \[Cal. App.\]

absolute and unconditional terms payment App.\]

98 P 398. Action to set aside default of entertain sum by administrator to attor-entered in foreclosure proceeding, and to have for professional services rendered estate and destructures held final and appealable. Flater v. Weaver, 108 Md. 668, $ 1 A clearly one in equity. Litch v. O'Connor, 8 $ 309. Order of probate court denying petit-Cal. App. 488, $ 7 P 207. Under Acts 1907, p. 233, c. 82, $ 7, giving court of civil ap-

not appeals, being merely incidental to peals jurisdiction of appeals in chanery

main proceeding. Mitchell v. Bay Probate cases, with certain exceptions, said court, and not supreme court, held to have juris-

After appeal and affirmance of order, the deletion of application for supercedeas of interlocutory order directing issuance of man-

court on questions passed upon in original datory injunction directing officers of cor-

adjication and not raised at original ap-poration to permit stockholder to examine

peal or in readjudication proceedings. Hoff-books, and supersedeas granted by supreme court discharged. Brown v. Crystal

10. Decree, disallowing claim of committee Ice Co. \[Tenn.\]

118 SWV 360. Court of civil appeals, and not supreme court, held to have jurisdiction of appeal from decree adjuding

with respect to court, but not supreme court, held to have jurisdiction of appeal from decree adjuding

refits of certain parties in water of stream

118 W43, 62 SE 278.

in suit to enjoin its diversion. Mattox v. Bristol \[Tenn.\]

118 SWV 381.

27. Under Rev. St. $ 526, authorizing ap-

peals from judgment of modal order of common pleas court to circuit court in cases where right to jury trial in common pleas

32. Federal supreme court on appeal from did not exist, held that action to recover damages for filling and obstructing public

only, omitting federal questions which gave ditch so as to cause water to overflow plain-

circuit court jurisdiction, or may decide fed-tiff's land, thereby annually damaging his

eral questions adversely to parties claiming crops, held not appealable, though prayer

benefit. Siller v. Louisville & N. R. Co., 213 for damages was followed by one for In-junction. Fisher v., Bower, 78 Ohio St. 248, 87 NE 256. Appealsibility of action brought

to assert right of subrogation depends upon

right of either party to demand trial by

Goodrich v. Ferris, 214 U. S. 71, 53 Law. jury under Rev. St. $ 5130, since by Rev. Laws, $ 5236, appeal may not be taken in actions in which trial by jury may be de-

maned. Smith v. Folsom \[Ohio\]

88 NE 546.

28. St. 1907, p. 753, c. 410, providing method

of appealing from all judgments, orders, or

decrees of any of superior courts of state,

held to provide for appeals from probate orders. In re McPhee's Estate, 154 Cal. 385,

97 P 878. Order of county court refusing to

set aside probate of will is final and appealable to circuit court. Dean v. Dean, 238 Ill.

424, 88 NE 149. Order of circuit court setting

aside probate of will, rendered on appeal,

on ground of want of notice is interlocutory. Id. Order dismissing petition to probate

my, at his election, appeal to circuit court

will is final and appealable. Greene v. Hillebeck, 139 Ill. App. 408. Under Rev.

13. Cur. Law.

01. Laws, c. 162, $ 8, supreme judicial court has jurisdiction of appeal from decision of

hadars, jurisdiction of appeal from decision of

probate court under St. 1906, p. 97, on petit-art. 6, $ 4. Stewart v. Torrance \[Cal.

versely to appellant.\[37\] Review is direct to the supreme court if there is a question of the jurisdiction of a United States court as such.\[38\]

Writ of error lies from federal supreme court to highest court of state where decision in place of statute, Knop v, Mononghalla state court depended upon construction of federal law and is adverse to same right claimed thereunder. Miller v, Illinois Cent. R. Co., 168 F 82. Circuit court of appeals not deprived of jurisdiction of appeal from fact that constitutional questions are involved, where other questions presented. In Le Can Pen \[C. C. A.\] 168 F 479.

Weld federal question: Adjudication of state court as to effect of judgment of court of sister state when given full faith and credit entitled to under federal constitution. American Exp. Co. v. Mullins, 212 U. S. 311, 58 Law. Ed. ---. Adjudication by highest court of state as to fight of truste in bankruptcy to avoid preference under state law, and that there was power to determine preference, without previously ascertaining existence under bankruptcy act of individual creditors, although state court applied state law in testing existence of preference. Miller v. New Orleans Acid & F. Co., 211 U. S. 496, 53 Law. Ed. 300. Denial by state court of force and effect of territorial statute especially claimed under federal constitution and laws. Atchison, etc., R. Co., v. Sowers, 213 U. S. 55, 53 Law. Ed. ---. He did not federal questions: Complaint referring to judgment of state court primarily as fixing amount of plaintiffs claim raises no question of "full faith and credit" applicable to federal supreme court from circuit court of appeals under 26 Stat. At L. 858, 58, 511, 6. - Bagley v. General Fire Extinguisher Co., 212 U. S. 477, 53 Law. Ed. ---. Decision by state court as to Validity of legislation under constitution of sister state, whether right or wrong, where validity of constitution was not questioned. Smithsonian Inst. v. St. John, 214 U. S. 19, 53 Law. Ed. ---. Judgment sustaining departure to petion demanding money judgment for $500 based on statute of sister state where appeal on ground that court erred in determining statute to be penal and unenforceible. Qarey v. Schmeltz \[Mo.\] 119 SWP 946. Determination by state court of validity of legislation deleating power to commission un-der state constitution. Welch v. Swaye, 214 U. S. 91, 53 Law. Ed. ---. Claim by one, according to his interpretation of a statute, that excessive duty or tax has been demanded by executive officers. American Sugar Ref. Co., v. U. S., 211 U. S. 155, 53 Law. Ed. 129. Authority to construct log boom In navigible stream entirely within state under state statute. North Shore Boom & Driving Co. v. Niecimen Boom Co., 212 U. S. 408, 53 Law. Ed. ---. Due process of law clause of the U. S. Const. is not violated by tax sale made under a state law providing that tax deed shall be prima facke evidence of sufficiency of notice, and that possession under such deed may meet requirements of state statute of limitations. Elder v. Wood, 208 U. S. 216, 52 Law Ed. 464. Federal supreme court having declared validity of state statute as properly construed, no constitutional question is raised by circuit court employing official action under different convention of the statute, particularly where

**154** **APPEAL AND REVIEW $ 4D.** 13 Cur. Law.

(SS 4) _D. Reviewableness may depend on the parties,${}^{39}$See 5 C. L. 146_ as in case of actions to compel performance of duty by public officers,${}^{40}$ or actions to which political subdivisions of the state,${}^{41}$ or state officers ${}^{42}$ are parties.\_

(SS 4) _E. Certificate or reserved questions and reported cases.${}^{43}$See 11 C. L. 148_

Certification of questions by courts of original jurisdiction to appellate courts,${}^{44}$ and by intermediate appellate courts to the court of last resort,${}^{45}$ are fully treated in other sections.

**SS 5.**_Courts of review and their jurisdiction 46_See 11 C. L. 142_ **exist by force of**

- **ST. 1988, c. 37, $\\lx@sectionsign$ 25. People v. McCullough,**
- **ST. 239 III. 552, 88 NE 177.**
- **ST. 241. City of St. Louis held,**
- **ST. 259. 22, 23, a political subdivision of the state, so that**
- **ST. 260. -> 271,**
- **ST. 272. -> 273,**
- **ST. 273. Judgment of circuit court of appeals upon a compylaint referring to judgments of state court presents no question for appeal to federal supreme court under 26 Stat. at**
- **ST. 284. 628, 617, $\\lx@sectionsign$ 6, where defend was not party to or bound by judgments as such.**
- **ST. 285. 632, 617, $\\lx@sectionsign$ 6, where defend was not party to or bound by judgments as such.**
- **ST. 286. 647, 53 Law. Ed. --. Refusal of state court to permit praise raising federal question does not necessarily involve decision of such question, as when pie was not timely filed and was bad as to certain counts. Western Union Tel. Co. v. Wilson, 213 U. S. 52,**
- **ST. 287. 653 Law. Ed. --. Order of highest state- court reciting that case came on for rehearing and motion was overruled is insufficient to show that federal question was considered warranting review by federal supreme court.**

statute or organic law, and consent of parties will not confer jurisdiction."Jurisdiction over the person may be conferred by a general appearance; "\* but not jurisdiction over the subject-matter."As between several intermediate courts, or courts of intermediate and final appeal, jurisdiction nearly always depends on one of the criteria mentioned in the preceding section."Appellate jurisdiction must be supported by sufficient original jurisdiction to pronounce the judgment being reviewed."There is a conflict of authority as to whether an appeal will lie from a void order."Jurisdictional questions may be raised on appeal."Every court necessarily has jurisdiction in every case before it to decide whether it has authority to hear and determine the cause," but the highest state court ordinarily has power to determine the jurisdiction of the inferior courts."

## 6 Bringing up the cause

See 11 C. L. 148.The section dealing with dismissal should also be consulted for the effect of irregularity or delay in bringing up the cause."\[54, 87\]

trial must appear from record before court or, appeal will be heard in supreme court at time of reversal. Baltimore & O. R. Co. v. only where record perfected by certiorari. State, 107 Md. 642, 72 A 340. McPhail v. Blann \[Miss.\] 47 S 666. Where 47. Sumner v. Hill \[Ala.\] 47 S 565; Barde v. Wilson \[Or.\] 102 P 301. Parties cannot confer jurisdiction by agreeing that amount in controversy shall be changed from $50 to $51. Switzer v. Benny \[Miss.\] 43 S 401. V. Davis \[Ind.\] 85 NE 964. Where district 4999

## 156 Appeal and Review $ 64.

13 Cur. Law.

(SS 6) _A. General nature and mode of practice._\[58\] See 11 C.L. 144.--The appropriate remedy for review,\[50\] and matters relating to the transmission and filing of the record on appeal,\[50\] are discussed in other sections. Appeals must be single.\[61\] The right of review being purely statutory,\[62\] the statutes granting it must be complied with.\[63\] The proceedings for appeal must in some way show the order or judgment appealed from,\[64\] and by whom the appeal is taken.\[65\]

(SS 6) _B. Time for instituting and perfecting._\[60\] See 11 C.L. 144.--Proceedings for review must be taken\[67\] within the time prescribed by statute,\[68\] which ordinarily time held no ground for dismissing writ of "from the order of court dated June 4, 1908," error subsequently granted by supreme court to circuit court, but that supreme court had jurisdiction to determine whether circuit court had jurisdiction. Louisa County v. Yancey's Trustec \[Va.\] $3 SE 452. 56, 57. See 113, post. 68. Ssearch Note See Appeal and Error, that it does not appear in whose behalf it was taken, where the word "defendant" is 59. See $ 2, ante. 69. See $ 10, post. 61. Where defendants appeared specially by same attorney, and in same how moved separately to set aside attempted service, each motion involving same question, and no other, and motions were heard at same time and disposed of in one order to which neither party made objection, appeal from the order is not double. Venner v. Great Northern R. Co. \[Min.\] 121 NW 212. An appeal from a judgment and from two orders denying motion for new trial made on same grounds after judgment is not double. Sucker State DPhil Co. v. Brock \[N. D.\] 118 NW 348. 62. See $ 1A, ante. 63. State v. Broaddu, 216 Mo. 386, 115 SWP 1018; Drainage Dist. No. 4 v. Wabash R. Co., 216 Mo. 709, 116 SWP 549. Statutes giving right of appeal are to be liberally construed in furtherance of justice, such a construction as will work forfeiture or right not being favored. Price v. Western Loan & Sav. Co. \[Utah\] 100 P 671. Case brought to appellate court from municipal court being new suit in appellate court, held that statute regulating its disposition in that court was regulation of practice in that court and not regulation of practice in municipal court, and subject to requirements of Const. Art. 6, $ 29, requiring all laws relating to appellate court or governing practice therein to be general and of uniform operation. Clourry v Holmes, 238 Th. 571, 87 NEE 303. 64. Appeal, held one from participatory order denying motion to dismiss petition in condemation proceedings only, and not from final judgment. Chicago Terminal Transfer R. Co. v. Preuell, 236 Th. 491, 86 NE 117. Where after appeal from order granting new trial case was remanded in order that application might be made to amend order so that it would state ground upon which it was made, and order was amended and record of proceedings duly returned to supreme court, held that appeal was from order as amended. Powers-Simpson Co. v. Diehunt, 105 Min. 384, 117 NW 503. Order sustaining motion to dismiss exceptions to ratification of resale of mortg-gaged Premless under power was passed June 4, 1908. On same day resale was finally ratified and confirmed. Held that an appeal

## 13 Cur. Law.

### 13.1 New

issue as to allowance of claim against in-solvent estate, to be taken within 30 days after determination of such issue, held not to apply to appeal from order for sale of reality upon application of personal representatives, to pay debts of decedent. Cur-tis v. Hunt \[Ala.\] 48 S 598.

California: Appeal from judgment not taken until more than six months after entry thereof cannot be considered. Code Civ. Proc. $ 939. Houghton Co. V. Kennedy, 84 S 1996; Heliman v. Longley, 154 Cal. 78, 97 P 17; Green v. Gavin \[Cal. App. 101 J 931. Appeal from order denying new trial taken 61 days after entry of such order will be dismissed. Hellman v. Longley, 154 Cal. 78, 97 P 17. Review of evidence cannot be had on appeal from judgment until less appeal is taken within time limited by code for that purpose. Long v. Cramer Meat & Packing Co. \[Cal.\] 101 P 297.

Cotorado: Milis' Ann. Code, $ 401, providing that writ of error shall not be brought after expiration of three years from ren-dition of judgment complained of is statute later could have appealed and appellant of limitations, and writ must be prosecuted within time therein specified. McVicker v. Rouse \[Col.\] 98 P 807. Writ of error is not brought within requirements of said section until summations to hear errors has been issued by clerk of supreme court, as required by Id. $ 404, or issanance has been waived. Id.

Georgia: Party to application for writ of que warranto desiring to except to decision of judge of superior court must carry same to supreme court by bill of exception within 10 days after decision of such court in session. Gillik v. Snow \[Ga.\] 64 S 286. Where decision rendered Oct 30, and bill of exceptions certified Nov. 16, 1908, while supreme court in session in meantime, writ of error must be dismissed. Id.

Idaheu Rev. Codes, $ 4807, subd. 1, requiring appealing upels to be taken in 60 days, applies to final judgment in action on special proceedings commenced in the court where same is rendered. Walker v. Elmore County \[Idaho\] 102 P 889. Not applicable to appeal from judgment rendered on appeal from in-ferior court or tribanal. Id. Statement on motion for new trial appearing in record 492. Bliles v. Yyler & Son \[Mich.\] 16 Det. properly certified and made part thereof will not be stricken from transcript though ap-peal is taken more than 60 days after entry of judgment, but may be considered for pur-pose of determining whether trial court committed any errors of law during trial.

Havilev v. Davidson, 15 Idaho, 787, 100 P 91.

Illinois: Appeal from refusal to dissolve injunction must be taken within thirty and perfected within sixty days. Hurf's St. 1905.

p. 234, $ 52. Kers. v. Galena Water Co., 139 L1. App. 598. Writ of error to municipal court must be used out within thirty days after judgment. Benjamin v. Chicago, I. & E 1R. Co., 140 Ill. App. 812. When writ of error is not used out in proper time, ap-pellate court is without jurisdiction.

Indian: Appeal must be taken and per-faced within one year from final judgment.

Brulletts Creek Coal Co. v. Pomatto \[Ind.\] 88 NE 606.

Iowa: Where appeal is not perfected within six months from entry of judgment

Ohie: Time within which proceeding in as required by code, $ 4110, errors in record error may be commenced in supreme court than those disclosed by motion for reverse judgment rendered in circuit new trial cannot be considered. Mueller v.

Lumber Co. v. McCaffrey \[Iowa\] 118 NWW 803. Where appeal from order overruling motion for new trial was taken within six months from making thereof, held that if there was any error in overturning motion which was reviewable on appeal, supreme court could reverse on that ground though errors in directing veridid and entering judgment could not be reviewed because ap-peal was not taken until more than 6 months after date of such judgment. Powers v.

Des Moines Cty R. Co. \[Iowa\] 121 NWW 1096.

Under Code, $ 3931, where judgment is ren-depalent against an attaching plaintiff, he must fected within one year from final judgment.

Jefferson v. Elmore County, 154 Cal. 78, 97 P 17. Review of evidence cannot be had on appeal from judgment until less appeal within two years.

Havilev: Appeal from judgments must be within one year under Comp. Laws, subd. 1, $ 426. Luke v. Coffee \[New.\] 101 P 555.

John: Time within which proceeding in as required by code, $ 4110, errors in record error may be commenced in supreme court than those disclosed by motion for reverse judgment rendered in circuit new trial cannot be considered. Mueller v.

Court on appeal from court of common pleas
APPEL AND REVEVEVE SS 6B.

13 Cur. Law.

in action by railroad company under Rev. St. 1 244-16 to vacate order of railroad commissioning fixing rates is governed by SS 6723, and is brought in time if commenced within four months from date of rendition of Judgment.

ment in circuit court. Railroad Commission of Ohio v. Hocking Valley R. Co., 79 Ohio St. 419, 87 NE 548. Provision of SS 244-16, par. d, providing that appeal or writ of error must be taken within 60 days held to apply exclusively to appeals or writs of error for review judgment of court of common pleas in circuit court. Id.

Oklahem: Under Act Cong. March 3, 1905, c. 1479, $ 12, 33 St. 1081 (U. S. Comp. St. 1907, p. 205), providing that appeals and writs of error shall be taken from federal courts in Indian Territory to federal court of appeals of said territory in same manner that cases are taken by appeal or writ of error irorn federal circuit courts to circuit court of appeals, and Act Cong. March 3, 1891. c, 517, $ 11, 26 St. 829 (Comp. St. 1901, p. 552), relating to appeals to circuit court of appeals, held that appeal must be taken within six months from date of entry of judgment sought to be reviewed. Porter v. Brueok (Okl.) 97 P 645; Bickford v. Bruce (Okl.) 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649; Lewis v. Ritch (C.) 165 F 157. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v. Bruce (Okl.) 97 P 645; Bickford v. Bruce (Okl.) 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 157. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 158. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 158. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 158. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 158. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 648; Utrepack v. Rock Island Plow Co. \[Okl.\] 97 P 649. \[Ritch v. Ritch (C.) 165 F 158. Phrase "in the same manner" held to include the element of time.

Porder v. Brook \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 645; Bickford v. Bruce (Okl.) 97 P 645; Bickford v.

Bruce \[Okl.\] 97 P 645; Bickford v.

runs from the date when an appealable order or judgment, legally sufficient, becomes a finality on the record,69 and is computed according to the rules applicable to other procedure.70 Statutes sometimes provide for an extension of time for good cause shown,71 but an appeal cannot ordinarily be taken after such time by consent of parties.72 Persons under disability are generally permitted to appeal within a specified time after such disability is removed.73

Shee Co. v. W. M. Laird Co., 212 U. S. 445, 53 Law. Ed. --. Hearing of motion and proceedings by motion for new trial may be reviewed where appeal is taken from order equity7 within Act April 14, 1996, $ (34 overturning such motion within six months Stat. 116) In case of interlocutory order, and "momths from rendition of judgment in the same order such order. Root v. Mills \[C. C. A.\] 168 F 88. 68. 69. Time to appeal commences to run from moment of actual entry of judgment. Code --. 95.

## Appendix A Appendix and Review $ 6c.

13 Cur. Law.

(SS 6) \_C. Affidavits and oaths._14--See 11 C. L. 146--An affidavit of good faith is required in some states._15__

(SS 6) \_D. Notice, citation or summons.\_16--See 11 C. L. 147--Timely 77 and regular 78 service 79 by appellant on the adverse parties,\_80 _or those of them whose rights_

pendent upon commencement of error proceedings -- Collins v. Davis, 114 NYS 792. Notice of speedings within time fixed. Radil v. Sawyer -- equal must be served at time prescribed by statute, to give appellate court jurisdiction.

73. Appeal prosecected by infant within 12 -- months after he became of age held in time -- hear not to be conferred by consent of parties under Civ. Code. Prac. $ 391. Turner v. Miles or waiver of rule by court. Id. Where -- Middlesboro \[Ky.\] 117 SW 422.

01. Search Note: See Appeal and Error, -- Mintake for Dec. 3, with journal entry of motion to set aside judgment Dec. 19, and oral -- SSV 361, 367; 2 Cyc. 808-812; 2 A. & E. Enc.

## Vol. XIII No. 2 Current Law, November, 1999.

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

APPELA AND REVIEW--Cont'd.

will be affected by a reversal, \[81\] of such notice of appeal, citation, or summons as

necessary parties. Is necessary to serve only parties who appear from record to be ad- verse. Portrero Nuevo Land Co. v. All Persons Claiming, etc. \[Cal.\] 101 P 12. Can lok only to record. O'Rourke v. Finch, 8 19 P 1034. Not necessary to \[S\] serve parties who made no appearance be- party who appears by record to be adverse, and record to be considered for that purpose is record of proceedings in which the appeal is taken. McKenzie v. Hill \[Cal. App.\] 88 P 56. After final judgment and insounce of execution, garnishes were examid 1 in supplementary proceedings and ordered to pay certain sum on the judgment. Heid that judgment debt, who was not served and did not participate in supplementary proceedings, was not adverse party on whom notice of appeal by garnishes from such order must be served. Id. Motion for new trial was made by all of several defendants and denied. One of said defendants alone appealed. Heid that appeal was not defective for failure to serve other defendants. Plaintiff being adverse party under such motion. O'Rourke v. Finch, 8 1908, 96 P 784. Defaulting defendants are not ad- verse parties to other defendants, where there is no joint relation alleged between them and judgment against each is several and independent. Portrero Nuevo Land Co. v. Applied service as attorneys for latter of All Persons Claiming, etc. \[Cal.\] 101 P 12. Notice of appeal by former served by themselves. Held that such service and fact that EX. Sess. 1906, p. 81, e. 59, must be several and independent within meaning of this rule. Id. Adverse party as used in Code Civ. Proc. 1895, p. 1724, means anyone having an interest in opposing the object sought to be accomplished by the appeal, and not merely does not affect substance of appeal or right party served with notice of intention to appeal. Sipse V. Puget Sound Elec. R. Co. move for new trial. Spokane Ranch & W. Co. v. Beatty, 37 Mont. 342, 96 P 727. Decreer in action to determine water rights held not to give prior appropriate right to take certain water permanently so that certain defendants not served with notice of appeal could only be detrimently affected by any modification thereof, and, hence, failure to serve them required dismissal. Id. Failure to serve notice of appeal by one defendant upon his codefendant, against whom action was dismissed, is not ground for dismissing arguments. Owners appealed but contractor did lant does not rely on dismissal as error and respondent has not appealed from order of dismissal. O'Keefe V. Becherer \[N. D.\] 117 NIV 355. Every necessary party must either make general appearance within year following rendition of judgment or summons must issue within that time and service be had upon defendant in error. Strange v. Crimson \[OkL\] 98 P 37. Notice to county court held not necessary prerequisite to appeal from its judgment. Baker v. Newton \[OkL\] 98 P 931. Every party whose interest in subject- matter of the appeal is adverse to or will be affected by reversal or modification of judgment appealed from is an "adverse party" within meaning of Rev. Code Civ. Proc. 8 441, whether he appears on face of record as plaintiff, defendant, or intervenor. Crouch v. Dakota, etc., R. Co. \[S. D.\] 117 NIV 145. Appeal will be dismissed if notice is 13 Curr. L\_-11.

the practice requires,"" distinctly specifying the order or judgment appealed from "*" and the action in which it was rendered,"*" is generally required, and the notice "*" with proof of service "*" is sometimes required to be filed. In some states, notice of intention to appeal is required to be filed with the clerk of the lower court,"*" and such filing is sometimes made to take the place of service."*" In some states the no tice must specify the reasons of appeal."" Oral notice in open court is usually sufficient." Appearance before the expiration of the time allowed for appeal ordinarily cures failure to serve notice." Issuance and service of an alias notice may be allowed in some states for good cause shown." Where several cases have been consolidated, a single notice is ordinarily sufficient." Clerical errors in the notice may be disregarded when not prejudicial to the adverse party."

(SS 6) \_E. Application for leave to appeal,"\_See 11 C. L. 149 or for writ of error, made within the time and in the manner " prescribed by law, is necessary in some jurisdictions. Practice varies as to the necessity of an accompanying assignment of error."

(SS 6) \_F. Allocatur, order for or allowance of appeal; certificate."\_See 11 C. L. 149. Allowance of an appeal or writ of error " by the proper judge 1 is necessary

it repeats by implication or is in conflict with

mistake. Mitchel v. Gray, 8 Cal. App. 423, 97

other statutory provisions held to have no bearing on question whether it violates said

P 160.

P 95. Search Note: See Appeal and Error,

constitutional provision. Id. Rules of pracce

Cent. Dig. $ 1941-1961, 1989-1992; Dec. Dig:

cite relating to appeals in suits to quiet title

P 360-362, 366; 2 Cyc, 808-812; 2 A. & E. Enc.

under St. Ex. Sess. 1906, p. 78, c. 59, being

under $ 12 of said act, those applicable to

other civil actions, appeal may be taken in

sind \[Ark.\] 114 SW7 14. Prayer for appeal

of dependants held to have included a de-

on adverse parties is unnecessary. Potoro

Nuevo Land Co. v. Ali Persons Claiming, etc.

\[Cal.\] 101 P 12.

SSB Reasons of appeal stated in form of

interactions instead of allegations of error held not properly stated, but considered

where not objected to on that ground. McCa

Caskey Register Co. v. Kenna \[Conn.\] 71 A

SS9. Party desiring to appeal may give notice by himself or attorney in open court

at time of rendition of judgment. B. & C. Comp. $ 649. Barde v. Wilson \[Or.\] 102 P

501. Where appeal is taken in open court,

citation or notice is unnecessary. Guy v. McDuffle \[La.\] 49 S 222.

91. Under Rules of supreme and appellate

courts, $ 9 (55 N. E. IV), filling of brief on

merits is entry of appearance in appellate

court. Jefferies v. Orndorf \[Ind. App.\] 88

NE 988.

92. Failure to serve notice on appellees as

required by rule $ 8 held not to affect juris

diction of snpcure court, which will, for

good cause shown, permit issuance and serv

lee of alias notice. Shold v. Van Treeck

\[Neb.\] 117 NW 113.

93. Where four separate actions were

considered, though four separate judgments

were entered under different titles. First

Nat. Bank v. Fowler, 61 Wash. 638, 99 P 1034.

94. Where error in citation is due to

vertenese of clerk and is corrected by him

without authority, appellate court may in
its discretion adopt the correction and re-

fuse to dismiss. Moulton v. Cornish, 32 App.

D. C. 533. Appeal should not be dismissed

because of insertion of wrong date in notice

as to when judgment appealed from was re-

dered, where it clearly appears from record

that respondent was not misled or prejul-

died. Price v. Western Loan & Sav. Co.

\[Utah\] 100 P 677. Record held to clearly

show that appeal was intended to be from

order denying new trial, mistake as to date

thereof In notice of appeal being clerical

mistake. Mitchel v. Gray, 8 Cal. App. 423, 97

that respondent was not misled or prejul-

Cent. Dig. $ 1941-1961, 1989-1992; Dec. Dig:

$ 360-362, 366; 2 Cyc, 808-812; 2 A. & E. Enc.

P. & P. 203.

90. Prayer for appeal may be made and

signed by attorney or agent. Boqua v. Mar

shall \[Ark.\] 114 SW7 14. Prayer for appeal

by defendants held to have included a de-

on adverse parties is unnecessary. Potoro

Idenant not named therein who did not sign

it. Id. One styling himself interplender in

pleadings and so designated in orders and

decree held not to fall within designation

of parties prarying appeal, where prayer for

or held not properly stated, but considered

defendants and summons issued pursuant to

charge omitted his name. Id.

97. Only grounds of appeal set out In

tition of appeal considered. Lembeck v. Lem

beck \[N. J. Err. & App.\] 71 A 240. Reasons

not assigned in reasons for reversal stated at

conclusion of petition of appeal not consid- unless the appeal or writ of error is of right.2 In Louisiana a devolutive appeal cannot be taken from an order of appeal which the district court has dismissed.3

(SS 6) _G. Bonds, security, payment of costs.4-Sec 11 C. L. 150-Supersedeas_ bonds5 and liability upon appeal bonds' are treated in other sections. Except in certain specified cases7 the appellant8 is ordinarily required to furnish a bond or undertaking,9 running to such parties as may be affected by the appeal,10 which

by Chicago municipal court act can be re- viewed only by writ of error used out from

**7. FIDuclearks:** Receivers appealing in in-represent of their trust are exempt from obligipellate court. Laws 1907, p. 226; Laws

gation to give bond, being parties in trust

1907, p. 444, $ 119, construed. Rockhill v.

capacity within Rev. St. 5228, and having

Congress Hotel Co., 237 Ill. 98, 86 NE 740.

An already given bond for performance of

No appeal, where amount in controversy less

their duty. Smith v. Folsom \[Ohio\] 88

than $100, unless trial judge certifies that

NE 546. No bond is required where appeal-

cause is one in which appeal should be allowed. Cobe, $ 410, Wood & Sons v. Griffith

1980. Jeffries v. Orndorf \[Ind. App.\] 88 NE

0001. Jeffries v. Orndorf \[Ind. App.\] 88 NE

0001.

in which there were no doubtful questions

of law held abuse of discretion. Id. Appeal

U. S. departmental officers from obligation

from decree overruling demurrer is not mat-

ter of right, but is discretionary with trial

eral courts, applies to appeals to District

1906, $ 34. State Fire Ins. Co. v. Morrison

1908.

(Miss.) 48 S 178. Is abuse of discretion for

chancellor to allow appeal from such decree

church it can serve no purpose except to de-

municipal corporations are relieved from

lay cause. Day v. Tucker \[Miss.) 48 S 742.

presitively of giving bond. Rev. St. c. 110,

Where constitutional question is raised, ap-

pellate term in affirming judgment may

Country is not exempt. Midland County v.

grant leave to appeal to apellate division.

Star Co. v. Moore, 62 Misc. 304, 114 NYS 753.

**1.** Writ of error to be granted by judge

who heard cause or justice of supreme court

as required by statute. Hardee v. Brown

\[Fla.) 47 S 834.

**2.** Allowance of appeal by county court not

necessary. Baker v. Newton \[Okt.) 98 P 831.

Interlocutory judgment overruling demurrer to complaint was entered at special term.

Anyellate division reversed judgment, and

sustained demurrer with leave to amend. but

without directors in regard to entry of final

judgment. Interlocutory judgment was en-

tered on such order, and, plaintiff failing to

amend, final judgment was entered on motion at special term dismissing his complaint

on merits, which was unanimously affirmed

by appellate division. Held unnecessary to

obtain leave to appeal to court of appeals

under Code Civ. Proc. 8 191, subd. 2, since

judgment, though literally within terms of

that statute, was not within its spirit, judg-

ment of special term on remand being in effect that of appellate division, and appellate

division having affirmed its action. McNa-

mra v. Goldman, 194 N. Y. 315, 87 NE 440.

3. Order of appeal did not state whether

subrehension or devolutive appeal was granted.

District court thereafter dismissed appeal

on around that surety on appeal bond was

Insolvent, no right to furnish another bond

being reserved. Apellant thereafter

mished another bond without obtaining an

other order of appeal, and without notice to

court by whom appeal had been dismissed.

Held that supreme court would dismiss ap-

peal. Durel v. Murphy \[La.) 49 S 1013.

**4.** Search Note:\*\* See notes in \*\*8. L. R. A. (N. S.) 1054; 10 Ann. Cas. 804.

See Appeal and Error, Cent. Dig. $ 1998-

2098, $127; Dec. Dig. $ 369-$95; 2 Cyc. 816-

851: 1 A. & E. Enc. P. & P. 943; 2 Id. 218.

E. See $ 7, post.

G. See $ 17, post.

**7.** Fiduelaries:\*\* Receivers appealing in in-represent of their trust are exempt from obligipellate court. Laws 1907, p. 226; Laws

gation to give bond, being parties in trust

1907, p. 444, $ 119, construed. Rockhill v.

capacity within Rev. St. 5228, and having

Congress Hotel Co., 237 Ill. 98, 86 NE 740.

An already given bond for performance of

the duty. Smith v. Folsom \[Ohio\] 88 must be executed," approved," and filed in the manner prescribed. When the filling and approval is an integral part of the transfer of the cause, it must be done within the time prescribed.13 In a joint appeal the bond must be executed by all of the appellants.14 As a rule but a single bond is required where several actions

{Cal. App.} 101 P 419. Whether cost bond 13. Under Burns' Ann. St. 1908, $ 2978, on shall be required is matter solely for determination of legislative. In re McPhee's

appeals from circuit court in cases involving resistance of decelants, bond must be filed with: ERstate, 154 Cal. 385, 97 P 878. No cost bond

in ten days after decision complained of is necessary on appeal taken under St. 1907, p. made, unless court to which appeal is prayed

T53, c. 410, providing new and alternative

shall direct appeal to be granted on filling of method of appeal. Id. Is sufficient if ap-

bond within year, and, where bond is not filed

peal can be sustained under either new or

with time fixed by court, appeal will be dis-

old method, and hence, where appellant filed

missed. V. B. Murmford Co. v. Terry \[Ind.

svmClient notice, appeal would be sustained

Aspd.} 87 NE 253. Filling of bond within time

as taken under new method, though he attempted

prescribed jurisdictional, Hilman, V. Galligher

tempted to take it under old method and

\[Tex. Civ. App.\] 113 SW 331. Where under

filed bond which was insufficient for that

purpose. Mitchell v. California & O. S. S. Co.,

tinued, and did continue, more than eight

weeks, and appellant was resident of county

ing more than one remedy for review must

were cause was tried, held that appeal

elect between them and will be bound by

would be dismissed where he did not file

election has no application, since there is

hond within 20 days after date of notice of

but one remedy for asserting which two

methods are provided. Id.

16. Bond on appeal from court of ordinary

failure to file bond until more than 40 days

should be made payable to appelle rather

after service of notice of appeal where term

than ordinary. Civ. Code 895, $ 4466. Mattox v. Embry. 131 Ga. 283, 62 SE 202. Bond

on appeal from judgment against plain in

tressmas to try title, where defendant cites

warrantors to defend, must run to warrant

more than eight weeks, a showing that bond

ors as filed within 20 days after expiration

ties by Sayles' Ann. Civ. St. 1897, art. 5252.

Appel v. Children's \[Tex. Civ. App.\] 116 SW

appeal. Carney v. Wentge \[Tex. Civ. App.\] 116 SW

129. Where transcript and record are

the changed after appeal so as to include an

parties are not entitled to benefit of statute

other appelle, presumption is that bond, of

which there is only a memorandummy in

Rests v. Estes \[Tex. Civ. App.\] 118 SW 174. transcript, ran only in favor of appelle at

Rev. St. 1895, art. 1884, construed, and held

that provision giving nonresident 30 days

D. C. 92.

**11.** Bond showing on its face that it was

executed by defendant in his name as an

individual, and reciting date of judgment

judgment, and not where time does not begin

appeal from, is at least sufficient to

to run until adjgment. Nash v. Noble

port appeal by him individually, though

judgment be against him both in his

individual and in representative capacity.

or performance of "cther act," where notice

Amsley v. Stuart \[La.\] 48 $ 592. Objection

that bond was dated prior to decrete cannot

taking, omission of which may be supplied

be raised by one who has indexed the bond

on application. Hanley v. Stewart \[Or.\] 102

"satisfactory to be reapproved." Lewis v.

P 2. Where undertaking was filed after

Luckett, 32 App. D. C. 188. Bond is

clent, if given on behalf of appellant, when

since on order extending time in which to

signed by the surely alone. Fidelity & De-

posit Co. v. Seattle, R. & S. R. Co., 50 Wash.

dismissed but permission to file new under

$1, 97 P 453. Fact that bond did not con-

tain name of surrer in body thereof, and

Co. v. Patterson \[Or.\] 96 P 551. Omission to

was not signed by appellant but by surety

alone, held not to render it insufficient to

perfect an appeal in term. Majienia Tel. Co.

v. Rogers \[Ind. App.\] 87 NE 165. Is not nec-

essarar that undertaking be signed by appel-

lant (B. & C. Comp. $ 650) and hence joint

appeal was not defective because undertaken

ing was signed by surety and only one of

appellants. Elliott v. Bozarath \[Or.\] 97 P 632.

**12.** Where bond was marked and filed by

with a small amount of false appeal is not

prothorday in court below without objection

from, objection will not have been consolidated \[18\] or in the event of an appeal from several orders in the same case.\[16\] The amount,\[17\] sureties,\[18\] and terms and conditions of the bond,\[19\]

Bond filed was sufficient to perfect an appeal \[ner v. Stock \[La\_\] 49 S 734. Situation not by defendant only. Held that defendant's appeal would be considered, though that of that court granted continuance to enable ap-interpleader could not be. Id.

15. Though separate judgments were entered under different titles. First Nat. Bank \[r. Fowler, 51 Wash. 638, 98 P 1034.

after court of appeal refused to issue man- 16. Only one undertaking need be filed, whatever may be number of appeals taken at same time. Rev. Codes, & 717. In re- \[Kappler's Estate \[Mont\] 100 P 228. Where appeal from judgment and order denying new trial is consolidated into one record, only ignoring its judgment, proper procedure being to procrative \[Mont.\] 98 P 497. Undertaking recit- \[of probate court of appeal's judgment. Id. Discretion ing that appeal is from "the judgment and amended judgment" held to show but one appeal from the amended judgment which took place of original one, reference to later being mere surplusesage. Id. Undertaking held sufficient to support appeal both from judgment and from order denying motion for new trial. Kaufman v. Cooper \[Mont.\] 98 P 504, rehearing denied \[Mont.\] 98 P 1135. But one undertaking is required to perfect appeal from final judgment and from order graning new trial, but such un- \[of probate court of his bond exclusive, un- \[of probate court of his bond exclusive, \[of probate court of his bond are largely regulated by statute. Defects may ordinarily be cured by the filing of an amended or substituted bond.20

(SS 6) _H. Entry below 21_. See 11 C. L. 182 is sometimes required.22

SS 7. Transfer of jurisdiction; supersedeas and stay.23\_. See 11 C. L. 152\_. Transfer of jurisdiction is accomplished when the appeal is fully perfected.24

_Supersedeas_ See 11 C. L. 158 of the judicial power of the lower court results with the transfer of jurisdiction 25 if the appeal be from the judgment, except as necestions.

time. Kaufman v. Cooper \[Mont.\] 98 P 504, tory injunction cannot be enforced pending rehearing denied \[Mont.\] 98 P 1135. Undertaking on three appeals reciting that appliesup. Let \[Ca.\] 99 P 462. Trial court pollen will pay all damages and costs which may be awarded against him on said appeals, etc. not exceeding $300, "otherwise this obligation to become null and void; otherwise to remain in full force and effect," held rendered nangatory as indemtry for costs in any amount by last two clauses, since in whatever sense "otherwise" is used instrument is meaningless. In reKappler's Estate \[Mont.\] 100 P 228.

20. Rev. Codes 1995, $ 1724. Signed by varieties only and defective justification. Sucker State Drill Co. v. Brock \[N. D.\] 119 NWF 348. Where undertaking is not a nullity, defects therein may be cured by filing a new undertaking. Gasser v. Strong \[Mont.\] 98 P 497. Where appeal bond vold because not running to warrantors made parties in trespas to try title, court will permit new bond to be filed. Appel v. Childress \[Tex. Civ. App.\] 116 SWP 129. Mistake as to date of judgments in undertaking held not ground for dismissal in view of Laws 1907, $ 3819, authorizing superne court to permit tiling of new undertaking. Price v. Western Loan & Sav. Co. \[Utah\] 100 P 677.

01. Search Note: See Appeal and Error, Cent. Dig. $ 2175-2182; Dec. Dig. $ 431-433; 2 Cyc. $ 676-879.

01. Where writ of error returnable before surpenture court is issued by clerk of circuit court, it need not be formally filed in circuit court, but original writ should be returned to surpenture court. Hardee v. Brown \[Fla.\] 47 S 834.

01. Search Note: See notes in 10 C. L. 282; 67 A. S. R. 714.

See, also, Appeal and Error, Cent. Dig. $ 2191-2281; Dec. Dig. $ 431-492; 2 Cyc. $ 76-916, $ 965-979; 2 A. & E. Enc. P. & P. $ 323; 7 Id. 895

24. Appeal properly perfected removes case wholly from lower court and places It in higher tribunal. Steele v. Hohenadel, 141 III, App. 201. Case is pending in appellate court instantly upon filing and approval of appeal bond. Id. Appeal allowed by trial court regarded as pending in appellate court when appeal bond is executed and filed as provided in order of appeal. Merrifield v. Western Cottaze Piano & Organ Co., 238 III.

626, $ 87 NBC 879. Notice of appeal in term does not alone give appellate court jurisdiction unless followed by filing of bond in lower court, and filing in appellate court of transcript and assignment of errors naming all parties to the judgment. Berkey v. Tipton L., H. & P. Co. \[Ind. App.\] 85 NE 724.

25. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu quo is not suspended by an appeal, but a manda- \[Mont.\] 100 P 1078.

01. Injunction which merely has effect of preserving subject of lifigation in statu qu

## Appendix A Appendix and Review $ 7.

13 Cur. Law.

sary to preserve rights pending review; 20 but ordinarily the judgment continues valid, binding, and efficient 27 so that it may be enforced,28 unless a special order superseding it be allowed.29 The mere prosecution of an appeal from an order dis-

has not explored. Miller v. Buffalo, 129 App. court to make orders for protection of par-

Div. $33, 118 NTS 1056. Where appeal is

test until determination of appeal, does not

perfected, authority of court to allow alteration or completion of some act relating to

with of ne exact quasashed. Jastram v. McClain of proper undertaking necessarily

Aussian \[R. I.\] 72 A $31.

eases. Hanley v. Stewart \[Or.\] 102 P 2.

Where writ of error bond filed, county court

to court of common pleas does not operate

lost jurisdiction of case, and could not there-

to annul or vacate such judgment, but

after make nune pro tune order requiring

statement of evidence as part of record as

judgment appealed from during pendency of

required by Key. St. 1895, at 1346, where

apposal. Key. St. $5285, 6411. Jenney v.

process by publication and no answer filed.

Walker \[Ohlo\] 88 NE 123. Where, after ap-

McLane v. Kirby \[Tex. Civ. App.\] 116 SWV

peal from probate court to court of common

118. Refusal to hear evidence offered in sup-

peart of supplemental answer filed after judgment

error in common pleas court to obtain re-

ment had been rendered and appeal per-

fected held proper. Cofeld v. Brittel TTex.

fore trial appeal is dismissed and abandoned,

Civ. App.\] 109 SWV 493. Where case is

tled after appeal is perfected, contention

without other reason that that appeal ex-

that district court is without jurisdiction to

tinguished judgment, it being permissible to

enforce attorney's lien since no judgment

prosecate appeal and error concurrently, Id.

has or even will be filed and case has not

**28.** Without superseedes, appeal never sus-

been remanded is not tenable since district

ends execution of an order. In re Brady,

court has jurisdiction to enforce lien on ver-

169 F 152. Where by reason of motion for

dict. In re Nethaway \[Min.\] 121 NW 418.

recharging bankrupt fails to appeal within

After appeal to supreme court from inter-

taboratory order continuing preliminary re-

ruptcy and subsequently appeals but without

straining order until hearing, disposition of

taking superseedes, such appeal is no de

order and all questions incident there are

fense to rule to compel filing of schedules

necessarily involved in ruling carried to

supreme court. Combes v. Adams, 150 N. C.

64, 63 SE 186. Trial judge has no power to

Id. Since appeal by guardian from personal

entertain motion to set aside restraining

judgment again him in favor of ward with

order because of newly-disovered evidence,

out giving superseedes bond would not

subsequent thereto. Id. Since after

have stayed enforcement of judgment, held

preure court acquires jurisdiction it has full

that it was no defense to liability on bond

power over whole case with regard to all

that he could have appealed without giving

things appearing on record, restraining or

it. Hands v. Haughland \[Ark.\] 112 SWV 184.

der of chancellor to preserve status quo

pending appeal is determinable and should

hitory in form is mandatory in effect, ap-

not be made to extend beyond reasonable

pellate court may issue writ of superseedes

time in which application may be made to

to stay contempt proceedings. Clute v. San

supreme court or one judges thereof for

temporary injunction in aid of appellate

v. Hitzcev \[Ark.\] 114 violation of mandatory injunction stayed by

SWV 707. Is not error for court to proceed

with condemnation matter after appeal has

file undertaking required by Code Civ. Proc.

been noted, where from filing of amended

## 943, 945. Id. Denial of supersedes has

pettion and prosecuting proceeding

not the effect of affirming judgment in

pears that such appeal has been abandoned.

clumpuituit Heights Realty Co. v. McFarland,

I really denying such effect. Hydraulic En

$1 App. D. C. 112.

26. Sole effect of appeal from order ap-

ponting guardian and awarding custody of

child is to suspend operation of decree

pending determination of appeal. Steele v. Hohenadel, 141 Ill. App. 201. Superior court

held to have jurisdiction, pending appeal

from order denying motion for new trial, to

issue commission to take testimony of non-

resident witness for use on new trial in case

of reversal, where witness is only witness

on material point and is under sentence of

death. Code Civ. Proc. $ 946, 1049, 2020.

2021. Gas & Elec. Co. v. San Francisco

Super. Ct. \[Cal.\] 97 P $59. Question in such

case is not whether testimony would be

tarial to issue tried, but whether it will be

material on new trial and under such amendment as circumstances would warrant court

In allowing. Id. Court and Practice Act missing a bill for an injunction does not operate as an injunction, or preclude the doing of the acts sought to be enjoined.\[20\] In Louisiana, subject to certain statutory limitations,\[31\] the allowance of a suspensive appeal is largely discretionary.\[32\]\_Bond.\_See 11 C. L. 154--Filing within a specified time \[38\] of a bond \[34\] running to

error. Chicago & N. W. R. Co. v. Garrett, 239

days held not to have commenced to run III. 297, $7 NE 1009. Under Civ. Code Prac.

until date rehearing was denied by supreme $ 747, appeal does not stay proceedings on court. Id. Since Act May 19, 1897 (P. L. 67) judgment until supersedeas is issued, though

Kres no time within which bond must be supersedeas bond has been given. Asher v. Garrett, $2 Ky. L. R. 1173, 108 SWV 242.

given within three weeks of entry of judgg-

Where appellate division may not decide on

ment or decree to supersede an execution

motion for appeal to court of appeals for

somed time, special term may grant stay of

where appeal was perfected in time it would

proceedings on applicent giving bond. Hart

not be quashed because bond was not filed

v. Clark & Co., 60 Misse. 866, 113 NYS 451.

and approved until after six months from

Where trial term of city court set aside ver-

judgment appealed from, there being no

dict and granted new trial, stay pending ap-

question involved as to whether approval

peal to determine if such action was au-

thorized was proper, no prejudice resulting

v. Pennsylvania & N. E. R. Co., 222 Pa. 240,

therefrom. Huntington v. Rodgers, 116 NYS

$1 A 4.

$34. Hold that neither prayer for appeal

supersedeas or stay or matter of right, trial

from order modifying consent decree nor al-

court may allow such relief in its discretion

lowance of appeal operated as supersedeas,

but that filling and approval of bond had

action. Palmer v. Harris \[Ock1\] 101 P 852.

that effect. Hohenadel v. Steele, 237 Ill. 229,

Circuit court on dismissal of bill and dissolution

$8 NE 717. Judgment not superseded by ap-

tion of temporary injunction granted to re-

peal from state to federal supreme contr

strain collection of taxes has discretionary

power to grant supersedeas continuing

status quo pending appeal on giving of bond

to protect state. Western Union Tel. Co. v. Wright, 168 F 558.

$30. Cardoza v. Barid, 30 App. D. C. $6.

$31. Party is ordinarily entitled to suspense

sive appeal except in cases enumerated in

Code Prac. arts. $58, 1059, Civ. Code, art.

1160. Succession of Drysdale, 122 La. 37, 47

S 367. In action between heirs at law and

executors of will where sequestration is ordered and court renders judgment for heirs,

required to give supersedeas bonds, but that

executors are entitled to suspensive appeal

after giving proper bond. Id. No suspensive

appeal from judgment refusing to remove

executor. Succession of Plata, 122 La. 14, 47

S 119. Setting aside sequestration granted

ex afmcio by judge ancillary to and in aid of

proceeding gives no right of suspensive appeal. Id. Suspensive appeal cannot be taken

from order vacating order of appeal and di-

reeting execution, after right to suspensive

appeal from original judgment is lost. Rey-

holds v. Egan, 122 La. 47, 47 S 371.

$3. Subenservice appeal does not lie in all

cases from order dissolving injunction and

dismissing appeal, but right thereto depends

upon facts of each particular case. Le Blanc

v. Michel, 122 La. 339, 47 S 632. Where candidate given nomination by special tribunal

and opposing candidate appealed to courts,

resulting in adverse judgment and suspense

sive appeal, and such candidate removed to

and : her parish and instituted injunction suit

again secretary of state to prevent placing

of :nominated candidate's name on ballot,

when such injunction was set aside because

of no jurisdiction, judge was not compelled

to grant suspensive appeal. Id.

'$3. Parties appealing from judgment of

supreme court of Arizona to federal supreme

event have 60 days after rendition of judgg-

ment, exclusive of Sundays, in which to

give security and suspend judgment. U. S.

Rev. St. 1007, 1012, 1909. Sandoval v. U. S.

Fidelity & Guar, Co. \[Ariz\] 100 P 816, Sliv

does not invalidate. Id.

such parties as may be affected by the appeal, \[38\] and in an amount fixed by the court \[86\] or by statute, \[57\] is usually requisite to a supersedeas.

_The effect_ See 11 C. L. 114 of a supersedeas is simply to suspend the judgment \[38\] and stay proceedings, \[88\] and not to vacate or dissolve such judgment \[40\] or writs incident to the suit. \[41\] The lower court loses its power only in respect to those things which might trench on the appellate functions. \[42\]

**35.** Where necessary party was not joined, and bond did not run to her, held that appellate court could not permit filling of additional bond and issunance of citation to her after time for appealing had expired. Taylor v. Leesnitzer, 31 App. D. C. 92.

**36.** Is essential to efficacy of undertaking undertaking to stay ascertain of judgment in action of heroyleun pending appeal that amount thereof of he fixed by court or judge thereof. Code Civ. Proc. $ 943. United States Fidelity & Guard. Co. v. More {Cal.} 101 P 302. Where it appeared that party appealing from mandatory injunction directing delivery of real and personal property requested trial court to fix amount of undertaking to stay proceed. Co. 129 App. Div. 26, 113 NYS 809. Though $ 943, 945, held that it was duty of court to comply with request, and that contempt proceeding against appellant for violation of injunction should not have been entertained until he had been given opportunity to give such undertaking. Clute v. San Francisco Super. Ct. \[Cal.\] 99 P 362. Statutory discretion of the trial judge in fixing amount and conditions of bond may be reviewed by proper motion containing allegations of fact sufficient to show abuse of such discretion. State v. Palmer \[Fla.\] 48 S 658. Supersedeas and cost bond for $10,000 held not fatally defective because there was no order fixing amount thereof, where judgment appeared from was for $4$ and costs. Gllbert Co. v. Husted, 50 Wash. 61, 96 P 835.

**37.** Code Prac. art. 675, requiring appellant to give his obligation for sum exceeding by one-half amount of judgment rendered to suspend execution of judgment pending appeal is imperative. Reynolds v. Egan, 122 La. 47, 47 S 371. In fixing amount of bond, interest should be computed to date of rendition of judgment. Id. District court has jurisdiction to determine sufficiency of bond. Id.

**38.** Supersedeas held not to have conferred any affirmative right, but to have prevented court from entering any further order in execution of decrere appealed from, its power being confined to preservation of existing status. Hohenadel v. Steele, 237 Ill. 229, 86 NE 717. Appeal from order appulting administrator held to have suspended such order. Zimmer v. Saler \[Mich.\] 15 Det. Leg. N. 10717, 119 NW 433. Suspend proposal from Judgment, dismissing main action where no conservatory writ is thereby dissolved, can suspend nothing save running of delay within judgment appealed from would otherwise become unappeatable, and appeal from judgment dismissing intervention can have no greater effect. Fithiol v. Schmidt, 122 La. 701, 48 S 157.

**39.** Where order of appeal is in form and bond sufficient, appellate court has jurisdiction, not court a qua. Reynolds v. Egan, 122 La. 47, 47 S 371. Where error is committed by court a qua in authorizing execution to issue, remedy is by writ of prohibition. Id.

- \[13\] Cur. Law. APPEAL AND REVIEW SS 9A.

- \[14\] $ 8. _Appearance, entry, and docketing above 48-See 11 C. L. 185_ are generally essential,44 and, where appellant fails to enter the appeal, the appellee may ordinarily do so for the purpose of moving to dismiss.48,49

- \[15\] $ 9. _Perpetuation of proceedings and evidence for the reviewing court._ (_Record on appeal._) \_Scope and terminology.\_See 11 C. L. 156--The "record proper," sometimes designated as the "fundamental record," "judgment roll," or "common-law record," includes those matters which are at common law of record ex propria vigore. The "secondary record" includes the various means by which matters not part of the record proper are made of record by bill of exceptions, settled case, abstract, approved motion for new trial, etc. The "entire record" or "record on appeal" comprises all that is transmitted to the reviewing court, including both record proper and secondary record. (SS 9) \_A. What the record proper must show.\_41--See 11 C. L. 166--That which is a part of the record proper must appear by such record, and its omission cannot be supplied by the secondary record.48 The facts essential to jurisdiction of the court below 49 and of the appellate court 50 must appear. The record proper should also 43. **Search Note:** See, also, Appeal and Er-

- \[16\] $ 43. _Search Note:_ See, also, Appeal and Er-

- \[17\] $ 2175-2190; Dec. Dig. SS 431-

- \[18\] $ 435; 2 Cyc. $768-885; 2 A. & E. Enc. F. P. F.

show all papers constituting a part of the judgment roll,\[51\] a final "22 order or judgment below,\[63\] and, in some jurisdictions, the making of motions for a new trial,"4 and in arrest of judgment,\[55\] due and timely authentication and filing of a bill of exceptions,\[56\] and the taking of all steps necessary to bring up the case for review.\[57\]

had and judgment rendered in justice's court \[pealed from as required by Code Clv. Proc. was filed in county court, held that there $ 951. In re Heywood's Estate, 164 Cal. 812, was sufficient showing that county court $ 97 P 825. Appellent held guilty of inexcusa-had jurisdiction, it being unnecessary that the lack of diligence 'in procuring restora-transcript from justice's court be otherwise embodied in transcript to court of appeals. $ 443. L18 SVW 1183: Gray v. Missouri Pac. R. Civ. App.J 115 SVW 665. Must show that ap-peal bond was filed in original appeal from $ 438; Whittington v Woods \[Mo. App.J 116 SVH Farland \[Miss.\] 4S S 182: Johnson v. Mar-shall \[Miss.\] 4S S 183: Donald Bros. Mercantile Co. v. Marsh \[Miss.\] 4S S 230.

- 50. Roberson v. First State Bank \[Tex. Civ. App.J 118 SVW 178. That some question was involved authorizing appeal directly to $ 438; Whittington v. Cannon, 236 Til. 179, $ 86 NE 215. Amount involved. Nick v. Bensberg \[La.\] 4S 898. Existence of federal question. Honolulu Rapid Transit & L. Co. v. Wilder, 211 U. S. 144, 53 Law. Ed. 124.
- 51. Must affirmatively show plea and issue thereon. Good v. Chester \[V. Va.\] 6S SE 615. Since amended pleadings take place of original where judgment roll shows amended pleadings, court will presume that pleadings contained in transcript certified by clerk to be correct are those which constitute judgment roll. Armstrong v. Henderson \[Idano\] 102 P 361. Date of filing petition where material should appear in transcript. Milem v. Freeman \[Mo. App.J 117 SV 644. 52. Newberger Cotton Co. v. Watts \[Miss.\] 49 S 146; Skallberg v. Skallberg \[Neb.\] 121 NWV 979. 53. Must contain copy of judgment or order appealed from. Saar v. Carson \[Iowa\] 118 NWV 1007; Hale v. Jefferson County \[Mont.\] 101 P 973; Union Pac. R. Co. Co.: Ioffax County \[Neb.\] 122 NWV 29; Ford v. McIntosh \[Ok1.\] 98 P 341; Orientine v. Powell \[Ok1.\] 100 P 566. Order overruling of de-murrer to evidence. Hay v. Pollock \[Fla.\] 47 S 940. Notice of appeal from order of certain date, but with no statement as to nature of order or copy thereof attached to record, presents no question. Rosenstein v. New York, etc., R. Co., 113 NYS 647. In absence of written order denying motion for new trial, copy of minute entry must be embodied in statement upon appeal from such order to confer jurisdiction on supreme court. Kirman v. Johnson \[Nev.\] 96 P 1057, former opinion \[Nev.\] 98 P 500. Paper sent up by lower court endorsed "On motion to settle statement," appearing to be order amending statement on motion for new trial by modifying language used in findings and decreee copied into statement, held at most to indicate that court had previously made order .modifying decreee and was correcting proposed statement on motion for new trial accordingly, and not order modifying findings and decreee, and hence not open to consideration by supreme court even if properly before it which it was not. Id. Duity of restoring destroyed orders, as authorized by St. 1906, Ex. Jess., p. 73, c. 55, rests on party seeking to appeal theorem, so as to enable him to furnish court with copy of order ap While at law every presumption is in favor of the judgment, and error must be made affirmatively to appear,\[58\] in equity the prevailing party must preserve the evidence supporting the decree, unless the decree recites or finds the specific facts proved,\[59\] and in some states a similar rule obtains on appeal from inferior courts.\[60\]

(SS 9) \_B. What is part of record proper; necessity of secondary record,\[61\]-See 11 C. L.\[158\]--The office of the bill of exceptions or other secondary record is to make of record that which is not part of the record proper,\[62\] and it is necessary except to review errors apparent on the face of the judgment roll.\[63\] The record proper condition where abstract of record proper falls to show affidavit for appeal or to state sub- stance thereof. Shemwell v. McKinney, 214

No. 692, 114 SW 1083; Wright v. Gehlhaus Co. \[N. J. Lawf 172 A 69. Record Mo. 694, 114 SW 1083. Statement in abstract that record proper of circuit court showed that, during same term in which motion for their own, defendant filed

their court, and hence it is not necessary affidavit for appeal, and on that affidavit could make order allowing appeal to court

to embody whole record in bill of exceptions. Rev. Codes, SS 6806, 7096. Mettler v. of appeals, held sufficient to confer jurisdicdic

Adamson \[Mont.\] 89 P 441.

on that court, though neither affidavit

or statement of its contents appeared in roll alone, judgment will be affirmed where abstract. State, W. Broaddus, 216 Mo. 338, 115

findings are within issues and fully support

8V 1018. On certiorri presumed in support

judgment. Galvin v. Fannen, 154 Cal. 774,

of order allowing appeal that there was

suffient affidavit. Id. On appeal in normal

alone, objection that finding of fact was

pauppers, record must affirmatively show

that proof of inability to pay costs was made

Peck v. Noee, 154 Cal. 351, 97 P 865. On ap-

in manner prescribed by statute. Sanders

peal from produce to district court on ques-

v. Benson \[Tex. Civ. App.\] 114 SW 435.

tion of law alone, appellant may present

Where printed record failed to show that

such questions as arise upon the pleadings or

appeal had ever been taken to supreme

fits in the action or appear from the decket court, held that latter court was without

of the court, though no statement has been

risdiction and case would be stricken from

depred sists of the summons,${}^{44}$ pleadings,${}^{45}$ and judgment.${}^{46}$ In some states it also includes an appearance,${}^{47}$ orders for judgment,${}^{66}$ and orders granting appeals.${}^{66}$ Stipulations,${}^{70}$ petitions for the removal of causes to the federal courts,${}^{71}$ bills of particulars,${}^{72}$ depositions,${}^{73}$ the evidence,${}^{14}$ affidavits,${}^{75}$ pleadings not permitted to be filed,${}^{76}$ proceedings on a former trial,${}^{77}$ exceptions,${}^{78}$ the opinion,${}^{78}$ and minutes${}^{80}$ of

233. On appeal from deerce distributing deedent's estate record, In its nature a judgment roll, will ordinarily be sufficient without bill of exceptions; but, where determination has depended wholly or in part on facts established by evidence, appellant may have so much of said evidence as is pertinent embodied in bill. In re Benner's Estate \[CaI.\] 99 P 715. Though where return is made, petition or afflawit for writ of re-view can serve no useful purpose on appeal unless embodied in bill of exceptions, where there is interposed demurrer, effect of which for the time is to adopt allegations of petition as the return, petition, upon sustaining of demurrer and rendition of judgment of dismissal, is substituted as and for the record in lieu of which it is accepted, and may be brought np and considered, not as the petition, but as the return, and therefore a part of the judgment roll without a bill of exceptions. Stoner v. Los Angeles City Council, 8 Cal. App. 607, 97 P 692.

001. Where appeal from interlocutory order appointing receiver in vacation was taken and transcript filed before return day named in summons, held that there could have been no opportunity for defendants to appear within meaning of Burns' Ann. St. 1908, $ 691, providing that summons and return shall form no part of record where all the defendants appear, and hence summons and return formed part of record. Marshall v. Matson \[Ind.\] $ 8CE 329.

es. Verified complaint. Marshall v. Matson \[Ind.\] $ 8CE 339. Deeds and tax receipts made exhibits to complaint. McMillan v. Morgan \[Ark.\] 118 SVW 407. Insurance policies used, made exhibits to complaint, where their execution was admitted by analyser, and they were read in evidence and properly identified. North State Fire Ins. Co. v. Dillard \[Ark.\] 115 SW 154. Answer filed at rules. Towner v. Towner \[W. Va.\] 64 SE 733. Demurrer. Junkins v. Sullivan \[Md. App.\] 73 A. 264. Breingeyer v. Star Bottling Co. \[Md. App.\] 117 SVW 119. Demurrer to bill contained in the body of answer thereto, but not filed by any order in cause, or in any way called to attention of court, will be treated as fugitive paper. Cross v. Gall \[Vv. Va.\] 64 SE 533. No bill of exceptions necessary to preserve ruling on demurrer. Morrison v. St. Louis & S. F. R. Co. \[Ark.\] 112 SVW 975; Fall v. Hornbeck, 132 Mo. App. 588, 112 SWV 41. Ruling on demurrer and motion to strike parts of answer. Hubbard v. Slavens, 218 Mo. 598, 117 SVW 1104. Rulings on special exceptions. Dobson v. Zimmerman \[Tex. Civ. App.\] 118 SVW 236.

66. Does not belong in bill of exceptions. Hanks v. Hanks, 218 Mo. 670, 117 SVW 101.

01. Becomes part of record by act of filing and is unnecessary to incorporate it in bill of exceptions. Hine Bros. v. Adams, 139 Ill. App. 92; Ostrobramy v. Barcazitis, 139 Ill. App. 94.

01. Order determining provisions of judgement on subject of costs. Jones v. Broad-way Roller Rink Co., 136 Vli. 595, 118 NWV 110. Orders dismising and reinstating causes Poppell v. Culpepper \[Fla.\] 47 S 351. Bill of exceptions not necessary to make order, sustaining motion to dismiss action, part of record. Rev. Codes, $ 6806. Mettier v. Adamson \[Mont.\] 99 P 441. Is final decision of court disposing of action so that same is deemed exceeded to. Rev. Codes, $ 6784. Id.

01. Hanks v. Hanks, 218 Mo. 670, 117 SWV 1101.

01. Written stipulation of facts or mode of proof. Backes v. Schlick \[Neb.\] 117 NWV 707. Stipulation waiving proof of an issue, defense must be preserved on the record. Cadiliac Automobile Co. v. Boynton, 240 Ill. 171, 88 NE 564.

01. Ruling with respect to it cannot be reviewed unless it is made part of record by bill of exceptions. Comp. Laws 1907 the trial court, entries in the clerk's register,"1 and copies of the stenographer's notes,"2 are held not a part of the record proper in the absence of a statutory provision to the contrary, but must be brought up by a proper bill of exceptions or by some method corresponding thereto, or they will not be considered."3 Statutes in some states permit instructions to be made of record without a bill of exceptions," but in the absence of statute they must be brought in by bill of exceptions or its equivalent."3 In some states papers used on an appeal from an appeal, or from certain orders, may be identified by certificate of the trial judge."3 Motions and orders thereon are not a part of the record and must be incorporated therein by

Guar. Co. v. Rainey \[Tenn.\] 113 SWV 397.

Fact that petitions were filed in creditor's part of record without bill of exceptions.

Aut at term following that in which final Acts 1903, c. 193. Butt v. Iffert \[Ind.\] 86 decree was announced without order of chancellor held not to have made them part of record without bill of exceptions, they must be filed in open court. Burns' Ann. St. chancellor declined to permit them to be filed. Id. Matters in petition which has been disallowed may be sufficiently embodied in decreree to present them to appellate court, but in such case decree must fully reject nature and character of petition with its material averments, together with relief sought, and action of chancellor thereon, mere rectial of Hling thereon being insuffment. Id. Refusal to permit defendant to file demurrer and additional pleas not considered where such papers are not brought up by bill of exceptions. Stringfellow v. Coons \[Fla.\] 49 S 1019. Where proffered transcendment is disallowed, it cannot be speffled as record though it has been marked "filed" by clerk. Schaeffer v. Central of Georgia R. Co. \[Ga. App.\] 64 SE 1107.

77. Record of former proceedings for estab-Ishment of private road. Pitzmaurice v. Turney, 214 Mo. 610, 114 SWV 504.

01. Must be preserved by bill of exceptions. Kirkwood v. School Dist. No. 7 EColo.\] 10 P 34; Brown v. Kennedy, 138 Ill. App. 607; Tarr v. Crump \[Mo. App.\] 118 SWV 488.

01. Lomita Land & W. Co. v. Robinson, 154 Cal. 36, 97 P 10; In re Hite's Estate \[Cal.\] 101 P 448; Vrinincott v. Orman \[Mon.\] 102 P 570; Price v. Western Disttillery Co., 114 NYS 714; Commonwealth v. Brownell, 35 Pa. Super. Ct. 49. Cannot look to opin-ion for purpose of ascertaining facts upon which finding was based though bill of exceptions states that particulars will be found in such opinion and refers thereon. Pacific Sheet Metal Works v. Californian Canneries Co. \[C. C. A.\] 164 F 980. Opinion ef city court may be examined to determine what principle governed court in arriving at its decision. Harde v. Purdy, 62 Misc. 232, 114 NYS 814.

01. Minutes of judge on his docket, or in-dorsed on wrapper or files. Fowles v. Bentley \[Mo. App.\] 115 SWV 1090.

01. Bromberg v. People, 136 Ill. App. 602.

01. Can only be considered when Incorporated in statement of facts pursuant to Acts 1907, p. 510, c. 24, $ 5. Dealy v. Shepherd \[Tex. Civ. App.\] 116 SWV 638. Longhand transcript of evidence cannot be considered when not incorporated into bill of exceptions as required by Burns' Ann St. 1908, 4 657. Rector V. Druley \[Ind.\] 88 NE 602.

01. See, also, post, $ 9D.

01. Instructions given and refused are part of record without bill of exceptions. Acts 1903, c. 193. Butt v. Iffert \[Ind.\] 86 decree was announced without order of record without bill of exceptions, and cannot be filed in open court. Burns' Ann. St. 1908, $ 58, subd. 6 Acts 1903, p. 338, c. 193.

01. In order to make instructions part of record without bill of exceptions, they must be filed in open court. Burns' Ann. St. 1908, $ 568, subd. 6 Acts 1903, p. 338, c. 193.

01. Instructions given and refused are part of record without bill of exceptions. Acts 1903, c. 193. Butt v. Iffert \[Ind.\] 86 decree was announced without order of record without bill of exceptions, and cannot be filed in open court. Burns' Ann. St. 1908, $ 568, subd. 6 Acts 1903, p. 338, c. 193.

01. Instructions given and refused are part of record without bill of exceptions. Acts 1903, c. 193. Butt v. Iffert \[Ind.\] 86 decree was announced without order of record without bill of exceptions, and cannot be filed in open court. Burns' Ann. St. 1908, $ 568, subd. 6 Acts 1903, p. 338, c. 193.

bill of exceptions or otherwise,87 in the absence of a statutory provision to the contrary,88 nor are statements made in a motion to be considered as statements made by the record.89 In Georgia a petition for certiorari is not a part of the record until it has been sanctioned.90 In chancery cases the appeal carries up the entire record and all proceedings,91 and a bill of exceptions is unnecessary and improper,92

87. See, also, post, $ 9D. St. Louis & S. orally may be part of record without bill of F. R. Co. v. McCollum \[Okl.\] 101 P 1120. Perceptions, as may motions in writing (Acts Proper method of authenticating papers on appeal from order is by bill of exceptions \[903, p. 339, c. 193, $ 3\], but when motion re-certified to by judge, and not by certificate \[903, p. 154\] shown to have been so made, it will not be of clerk. Munzy v. McEwen Lumber Co., 154 sufficient to state it in bill of exceptions, Cal. 685, 88 P 1062. Motion and rulings not made part of the record by bill of exceptions \[903, p. 154\] with not be considered. Ghost v. U. S. \[C. A.\] 168 F 841. In federal courts question of how matter may be included in record \[903, p. 154\]. Motion for new trial held part of record \[903, p. 154\]. Motion will of exceptions so that it should I.d. Copies of midfaavit to procure substitution of defendants, notice of application or substitution, order of substitution, justice's docket, notice of appeal to district court, plaintiff's reply, and motion to dismiss action, held not part of record where not identified by bill of exceptions or otherwise, and stricken from record on motion. Metler v. Adamson \[Mont.\] 99 P 414. Motion to dissolve temporary injunction and order thereon. Green v. Yeager \[Okl.\] 99 P 906. Motion to strike plending from files and decision thereon. Town of Scott v. Artman, 237 TII. 894, $ NE 195. Propriety of court's action on motion to strike plending not considered on appeal from judgment on judgment roll alone. Gish v. Ferrea \[CaL. App.\] 101 P 27. **Motions to dismiss and to reinstate causes** based upon matters in paix. Poppel v. Culpepper \[Fla.\] 47 S 35. Rulings or orders granting or refusing **modons** to direct verdict. Beebe v. Minneapolis, etc., R. Co., 137 Wris. 269, 118 NW 808. Motion **to** proof of that fact, such motion, though part v. Sidered where it is not preserved in transcript by bill of exceptions so as to make it part of record. Davis v. Lemmers \[Okl.\] 100 P 514. Motion to vacate and set aside judgment and order of court thereon. Vilsonson's Rev. & Ann. St. 1903, $ 4606. De-vault v. Merchanst' Excl. Co. \[Okl.\] 98 P 342. Motion to strike vold judgment, order thereon, and exceptions taken. Lasser v. Zapf \[Fla.\] 48 S 749. Motion for new trial. Booth v. St. Louis, etc., R. Co., 217 Mo. 710, 117 SWV 1094. Notice of intention to move for new trial. and hence in order that supreme court may be properly appraised that motion was made, manner of giving, Hling, and serving of notice, and proceedings had in respect thereof, such matters must be made to appear by bill of exceptions. Walker Bros. v. Skliris, 34 Utah, 353, $ P 114. Motion to vacate verdict and grant new trial and for judgment non abstante. Stoddard v. Fox, 15 Idaho, 704, 99 P 122. Order denying new trial. Warnock Ins. Agency v. Peterson Real Estate Inv. Co. \[Utah\] 101 P 699. Order granting new trial. St. Louis & S. F. R. Co v. McCollum \[Okl.\] 101 P 1120. Motion for new trial, its presentation, and exception to ruling thereon. Davis v. Ogden \[Vvo.\] 97 P 1074.

01. Motions which may properly be made 13 Cur. Law. **APPEL AND REVIEW $ 9C1.**

Though oral evidence must be reduced to writing and brought up in some form.**\[98\]**

**Status sometimes dispense with the necessity of exceptions or a case made in special proceedings.**\[44\]\*\*

**An understanding with the court relieving party of taking exceptions to rulings does not dispense with noting exceptions in the bill of exceptions.**\[95\]\*\*

**Matters not properly a part of the record cannot be incorporated therein by specifying them as grounds of a motion for a new trial.**\[96\]\*\*

**Recitals in the record proper of matters which are no part of such record are unavailing to supply omissions from the secondary record.**\[97\]\*\*

**(SS 9)**

\_C. Form, requisites and settlement of secondary record. 1. The bill of exceptions.**\[98\]**

**See 11 C. L. 121.**\[11\]\*\*

**The office of a bill of exceptions is to bring on the record such matters as are not already parts of the record in the case.**\[98\]\*\*

**It must be prepared and authenticated in the manner prescribed by statute and the rules of**

**Caruthers \[OK1.\] 100 P 520. Proceedings by a case made or bill of exceptions cannot be brought to supreme court on a certificate jurisdiction of probate courts are proceedings in equity within this rule. Laurel Oil**

**Ahren-Ott Mfg. Co. v. Condon \[OK1.\] 100 P & Gas Co. v. Galbreath Oil & Gas Co. \[C. C.\] 556.**

**Cannot consider. contract, not made**

**A.\] 165 F 162. Conformity acts do not apply to proceedings to secure review of deletions of order such matters as are not already parts of the record in the case.**\[98\]\*\*

**It must be armed by acts of congress and rules and practice of federal courts 1d. Subsequent by jornstad entry. Kirkwood v. School Dist. to passage of Act March 3, 1905, c 1497,**

**No. 7 \[Colo.\] 101 P 348.**

**Results in clerk's**

**compens-law record will not save exceptions.**

**appeats and writts of error, and proceedings**

**theror and therein, to review decisions of**

**theor**
**and**
**therin, to review decisions of**

**federal courts of Indian Territory, were**

**governed by provisions of that act and the**

**practice in the federal courts, and not by**

**attutes of Arkansas or practice in its**

**theor**
**the**
**for**
**the**

## 178 Appeal and review SS 9Cl.

13 Cur. Law. court,1 and should include all matters essential to a review of the questions involved 2 which were presented to the trial court,3 set out in clear, orderly and coherent form.4 It may include matters preliminary to trial.5 Unnecessary or immaterial matters should not be included.6 Condensation into narrative form is usually required.7 Exhibits and documentary evidence must be properly authenticated and identified as a part of the bill.8 Inanimate articles can properly be brought into the bill only by describing the same.9 Each exception must be separately stated.10 In some jurisdictions separate bills must be settled as to each all:

Footnote 19: The author is grateful to the anonymous

## 13 Cur. Law. Appeal and review SS 9Cl.

leged error.\[11\] In the absence of statute or rule to the contrary, a joint bill may be settled on behalf of several appellants.\[12\] As a general rule where proceedings in a cause occur at different terms, the proceedings at each term should be embodied in a separate bill.\[13\] A respondent or defendant in error desiring to assign error is often required to file a cross bill.\[14\] Skeleton bills, that is bills providing for the subsequent copying by the clerk into and as a part of them of certain of the evidence, are allowed in some states.\[15\] In some states the bill must show on its face that it was presented, signed, and filed in due time\[16\] while in others such a showing is deemed an essential part of the record proper.\[17\] The bill will be construed most strongly against the party making it.\[18\] Objections that evidence is not properly incorporated or identified may be waived by act of the parties.\[10\]\_Settlement, signing and filing.\_See 11 C. L. 184.\_The bill must be prepared by appellant\[20\] and presented\[21\] during the term\[22\] or within the time limited by statute.

qurement is for benefit of opposing coun- --ments. Indianapolis & W. R. Co. v. Hill sel, as well as that of court, so as to enable \[Ind.\] & NE 414. Under Acts 1908, D. 386, him to prepare his brief for argument of -- case. Enos v. Rhode Island Suburban R. Co. \[R. I.\] 70 A. 1011. Exception to rulings after term or other time agreed on. Buena upon ground that court erfusing to admit certain evidence," when -- in fact rulings were confined to refusal to -- addmit evidence," -- is the only one of the two parties, as well as that of court, so as to enable -- option, held not compliance with statute. -- agreesor, but with state, -- agreesor

## Appendix A Appendix and Review $ 901.

### 180.

The 180.0 tion of the time originally limited.26 The bill must be approved,26 as and for a bill,27 by the judge who presided at the trial 28 in such manner as to authenticate it 29 within the time allowed by law 80 or stipulation of the parties,31 or an extension.

given, will be presumed that proper show- \[ Chamberlain v. Quarnberg \[S. D.\] 119 N NVW ing was made. Id. Burn's Ann. St. 1908, 1026. $ 61, contemplates but one extension, and 25. Weeks' Hardware Co. v. Weeks \[Mo. order granting second extension is invalid. App.\] 115 SW 490. Acts 1905, p. 45, c. 40. Brown v. American Steel & Wire Co. \[Ind. App.\] 86 NNE 80. Failure to object or except to second extension held not waived of ap- \[Ind. App.\] 88 NE 80. Must procure ex- \[else's right to thereafter object to court's tension at term when judgment rendered, action, since validity of order depended on power of court to make it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition have been of record in cause upon which necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written verified petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, nor is written petition necessary. Bivens v. Henderson \[Ind. App.\] 86 NNE 426. $ 34, but not an order nune proc tune correcting rec- \[else's right to parse it, and not on content order permitting tiling. Louisville & sent of parties. Id. Application for extension is not adversary proceeding, and no notice thereof need be given to adverse party, nor need bill be submitted for his inspection, sion thereof duly granted,"22 and the approved bill filed "23 within the time pre-

Must be certified to be full and complete transcript of evidence at trial. Big Kanahwa Lessing Co. v. Jones \[Colo.\] 102 P 171. Evidence held sufficiently certified where bill rected demurrer to evidence followed by direction to insert transcript of evidence whlch was signed by judge and attested by clerk, and was followed by transcript certified to by clerk. Milton's Acm'x v. Norfolk & W. R. Co., 108 Va. 752, 62 SE 960. Certificate held sufficient to make bill part of record notwithstanding its careless language, that heins its plain intent. Hotelkiss v. Vanderpoel Co., 139 Ill. App. 325, Bill not properly authenticated raises the question on appeal. Shepherd v. Adams Ex. Co. \[V. Va.\] 64 SE 720. Court's certificate to clerk, properly recorded, is essential to valid bill. Id. Need not be under seal. Carr v. Middle States Coal Co. \[V. Va.\] 63 SE 34. 36. Alabama: Must be signed within thirty days unless torn is extended by order of court. Acts 1900-1, & 10, p. 820. Central of Georgia R. Co., V. Ashley \[Ala.\] 49 S 388. Written agreement that judge might sign

bell within thirty days from adjurnment of term dated May 23, 1907, shows that bill signed June 3, 1907, was filed during them pending term of court. Pell City Mfg. Co. v. Swearinger \[Ala.\] 47 S 272. When date of signing does not appear, it will be presumed to be date of filing and this together with recital that it was signed within time validates it. Crabtree v. Nolen \[Ala.\] 49 S 309. Bill not timely signed cannot be considered. Central of Georgia R. Co. v. Ashley \[Ala.\] 49 S 388. Bill signed within statutory time after ruling on motion for new trial may be considered on review of such ruling although too late as to main trial. Id. Bill will not be dismissed because it was signed after appeal was taken. Decatur Waterworks Co. v. Foster \[Ala.\] 49 S 759. Act of signing bill is an authentication only of the memorial of the proceedings below, and, when properly authenticated, it becomes part of record of supreme court. Id. District of Columbia: "Term" within which bill must be settled under Rule 54, & 2, is trial rather than judgment term. Howard v. International Trust Co., 32 App. D. C. 8. Will not be considered when settled and signed after expiration of time permitted. Jennings v. Philadelphia B. & W. R. Co., 31 App. D. C. 178. Bill not timely settled will be stricken on motion and judgment affirmed. Howard v. International Trust Co., 32 App. D. C. 8. Dating of bill as of day of signature, although time of settlement has exyired, when apparently mere inadvertence on the part of trial judge, may be considered as execution now for them. District of Columbia v. Blackman, 31 App. D. C. 229. Is not improper for trial court to retain bill presented in proper time for time necessary to enable him to determine its correctness, and his approval and settlement of it could have been entered much more true. Id.

**Florida:** Bill should be made up and signed a term of court at which trial is had unless further time allowed. Circuit court rule 97. Halliu v. Budge \[Ala.\] 47 S 825.

## 13 Cur. Law. Appeal and Review $ 9Cl.

seribed by law.\[34\] Provision is often made for amendment in case of errors or omissions.\[35\] Delay in settlement due to the fault of the judge will not result in dismissal.\[36\] Service on the adverse party of the bill \[37\] or of a notice of the filing

v. Emmett County Circuit Judge \[Mich.\] record to reviewing court see post, $ 10D. 15 Det. Leg. N. 1042, 119 NW 575.

Neharsaku Judge held to have no authority, after expiration of 80 days from ad-jornornment of the term of court sine die, to extend time. Bressler v. Wayne County verity and cannot be contradicted by pard. Morgantown Mfg. Co. v. Hicks \[Ind. App.\] missing from bill when it is offered for signature, time for signing should be extended under the statute, rather than to go to upper court with incomplete bill, or attempt to make it complete by subsequently attaching exhibits without consent or knowledge of trial judge.

Rhode Island: The Herranconft Brewing Co. v. Frank, 11 Ohio C. C. (N. g). 505.

Extension of time for signing defendants' bill held not to have extended time for signing plaintiff's bill, and latter dismissed. Where not signed within time fixed by statute though within time fixed by court for signing defendants' bill. First Baptist Soc. v. Wetherl \[R.\] J1 A 66.

Federal Courts: After expiration of term at which judgment was rendered, bill can-jornment of the term of court sine or or not be allowed, signed, and filed as of date of trial in absence of consent of parties or of previous order of court reserving power

from standing rule that it was not necces-to do so, unless there are extraordinary circumstances which are sufficient to except the case from the general rule. Dalton v. Channon \[C. C. A.\] 165 F 873. Delay neccesarily caused by inability of court sten-said rule. Id. Amendment held to have ographer to make transcript of notes of evidence and exceptions within term or time allowed by order of court held ex-fling it had passed, which was not permis-traordinary circumstances bringing case within region to rule, so that it was out good cause shown and without fixing new time for settlement, as provided by her expiration of extension, Id.

33. Is duty of exceptor, and not of judge to file bill after judge signs it. State v. Taylor, 134 Mo. App. 430, 114 SW 1029.

Bill in action at law, when settled and allowed, is filed in office of clerk of circuit that, eight months after bill of exceptions and on appeal clerk is required, on appeal-lant's application therefor, to make certified copy thereof for transmission to supreme court. Boothe v. Farmers' & Traders' Nat. Bank \[Or.\] 101 P 380. Document

supporting to be bill of exceptions and apparing to have been duly settled by judge of circuit court treated as such, though no judgement that same was filed in circuit court as such, where no motion in lower court or supreme court to strike out bill or to strike same from abstract. Lumley v. Miller \[S. D.\] 119 NW 1014. Bill allowed, signed and sealed in open court, d does not become part of record until filed with clerk. Benson v. Fitzgerald, 140 Ill.

34. Bill stricken from transcript where latter showed that bill was not settled and amended, is presented, to judge in filed until after hearing of motion for new trial. Wood v. Tanner, 15 Idaho, 689, 99 P 123, rehearing denied, 15 Idaho, 689, 99 P 1053.

01. For amendment after transmission of the term of court sine or not, it is not possible to thereof " in sometimes required. In some states provision is made for authentication by afflavit of bystanders if the judge refuses to sign " or for the establishment of the bill in the appellate court." The court need not sign an incorrect - Brown v. American Steel & Wire Co. \[Ind.\] \[taken as representing true state of record. App.\] 88 NE 80. Failure to settle in time, due solely to delay of judge, not ground for dismissal where he finally signed it by instance, where judge refuses to sign it nune pro tunc. District of Columbia v. Blackman, 32 App. D. C. 32.

S7. Convention that bill could not be considered because not served as provided by Code Civ. Proc. 8 650 not considered, where statuary manner to sign bill presented. Id. alleged in complaint, were not denied by answer, and were found to be true. Burke v. Mazze \[Cal. App.\] 101 P 438. Service should be made upon attorney of record rather than party. Walker Bros. v. Sklitzis, 34 Utah, 353, 8 P 114. Bill must be served after it is signed and certified, and motion to dismiss will be sustained where entry of service or acknowledgement thereof on bill antedates judge's certificate. Grow v. Hunter, 5 Ga. App. S17, 63 SE 928. Acknoweldgment of paper purporting to be bill of exceptions, followed by wavier of all other and further service thereof, entered on paper before bill is certified, does not amount to service of same paper after it has been certified. Id. Mere statement entered on bill and signed by counsel for plaintiff in error that he has served copy of bill and certificate of court on counsel for defendant, without any afflavit of such service, is insufficient. Advance Lumber Co. v. Moreland \[Ga\] 65 SE 86. Statement signed by member of bar who did not appear to be an attorney of record in case. Brantley v. McArthur \[Ga.\] 64 SE 326. Field that want of proper service could not be cured by filing in superme court of afflavit of counsel who made entry to effect that statement therein contained was true. Advance Lumber Co. v. Moreland \[Ga.\] 65 SE 86; Brantley v. McArthur \[Ga.\] 64-SE 326.

S8. In absence of contrary showing, proper notice to opposing counsel required by rule 55 is presumed to have been given. District of Columbia v. Blackman, 31 App. D. C. 229. Is discretionary with judge to settle bill without such notice having been given. Jennings v. Philadelphia, B. & W. R. Co., 31 App. D. C. 173. Plaintiff's motion to dismiss defendants' bill for want of notice of films thereof, or for lack of notice of the hearing thereon, under provisions of superior court rule 81, held without merit, where it appeared that plaintiff's attorney, after ascertaining that bill had been filed, and prior to allowance, sent note to presidling judge containing all his objections to its allowance, and that judge considered Id. Accepted by form of prayer of petition, but supreme court will endeavor to ascertain truth of exceptions. Hopkins v. Richmond \[R. I.\] 72 A 220; Enos v. Rhode Island Suburban Rc. \[R. I.\] 70 A 1011. Immaterial exceptions should be eliminated rather than at later stage of case. Id. Since truth of exception was not affected by action of trial justice in striking reference to aml-davits supporting it, petition to establish truth of such exception based on such action dismissed. Campbell v. Campbell \[R 13 Cur. Law. **APPEL AND REVIEW SS 9C2.**

bill.41 In some states, if he deems the bill as presented incorrect, he is required to indorse his refusal thereon, and then make out and file what he deems a proper bill.42 Mandamus will issue to compel the signing and certification of a truthful bill presented in time; 43 but the appellate court will not overrule the statement of the trial judge as to what were the facts 44 or require him to certify any facts not resting in his knowledge,45 nor, as a general rule, can he be compelled in an equity case to allow bills that do not preserve the evidence on the merits.46

(SS 9C) \_2. The settled case or statement of facts.47--See 11 C. L. 188--The settled case or statement of facts must be made up in the manner prescribed by law,48 and should contain such matters as are necessary to a review of the rulings complained of,49 an abridgment or condensation into narrative form being frequently required.50 Matters shown by the record proper need not, ordinarily, be included.51

I.J 71 A 389. Act of justice in strtking turned to counsel for correction under Civ. porting same pursuant to agreement claimed to have been made under compulsion held proper. Id. **App.J 84 SE 292.**

South Dakota: Where trial judge refuses to settle and certify bill of exceptions, same may be presented to supreme court for proof or settlement under Rev. Code 50V. Proc. $ 288. Northwestern Port Huron Co., V. Zickrick \[B. D.\] 117 NWV 685. **App.J 857: 3** (S. D.) 117 NWV 685. **App.J 879: 18** (J. D.) 117. **App.J 860: 18** (J. D.) 117. **App.J 879: 18** (J. D.) 118. **App.J 880: 18** (J. D.) 118. **App.J 881: 18** (J. D.) 118. **App.J 882: 18** (J. D.) 118. **App.J 883: 18** (J. D.) 118. **App.J 884: 18** (J. D.) 118. **App.J 885: 18** (J. D.) 118. **App.J 886: 18** (J. D.) 118. **App.J 887: 18** (J. D.) 118. **App.J 888: 18** (J. D.) 118. **App.J 889: 18** (J. D.) 118. **App.J 890: 18** (J. D.) 118. **App.J 891: 18** (J. D.) 118. **App.J 892: 18** (J. D.) 118. **App.J 893: 18** (J. D.) 118. **App.J 894: 18** (J. D.) 118. **App.J 895: 18** (J. D.) 118. **App.J 896: 18** (J. D.) 118. **App.J 897: 18** (J. D.) 118. **App.J 988: 18** (J. D.) 118. **App.J 999: 18** (J. D.) 118. **App.J 990: 18** (J. D.) 118. **App.J 991: 18** (J. D.) 118. **App.J 992: 18** (J. D.) 118. **App.J 993: 18** (J. D.) 118. **App.J 994: 18** (J. D.) 118. **App.J 995: 18** (J. D.) 118. **App.J 996: 18** (J. D.) 118. **App.J 997: 18** (J. D.) 118. **App.J 998: 18** (J. D.) 118. **App.J 999: 18** (J. D.) 118. **App.J 999: 18** (J. D.) 118. **App.J 990: 18** (J. D.) 118. **App.J 991: 18** (J. D.) 118. **App.J 992: 18** (J. D.) 118. **App.J 993: 18** (J. D.) 118. **App.J 994: 18** (J. D.) 118. **App.J 995: 18** (J. D.) 118. \*\*App.J 996
In some states certain exceptions may be reserved in the statement of facts instead of by bill of exceptions.\[52\] Except where the statute provides for the authentication by the stenographer of his transcript,\[68\] or for use on appeal of the statement on

ographic report of evidence, including ex-

Laws 1907, p. 510, c. 24, $ 5, consists of

cluded evidence, objections, and rulings of

stengraber's notes in _full_, containing court, and verbatim copy of interrogatories

and answers, and of documentary exhibits

thereto, held fatally defective. Knox v.

SVW 110; Poitevent v. Scarborough \[Tex.

Lexington Terminal Co. (Ga. App.) 117 SWW 443; Wharton v. Chunn

1134. Brief containing copies of document-

tery evidence held insufficient. Coence Oil

Refining Co. v. Planters' Oil Co. (Ga. App.) 112 SWW 240.

65 SE 144. Stenographic report of evidence insufficient. Russell v. Hammock, 4

Ga. App. 519, 61 SE 1054; Rexford v. Bleck

ley, 131 Ga. 678, 63 SS 387. Purported brief

consisting largely of wholly immaterial

evidence, interspersed with objections to

testimony, statements and argument of

counsel, testimony to which objections were

sustained or overteld, and colloques be

tween counsel and court, held insufficient.

Vright v. Johnson (Ga. App.) 65 SE 60.

Arguments of counsel, objections, and rulings form no proper part of brief of

evidence and their incorporation cannot be

taken as authenticating facts stated. Lockwood v. Muhibers (Ga.) 64 SE 655. To

vent full stenographic report into narrative

form is not a compliance, with the law, but

abridgment and condensation are as essential as approval of trial judge. Albany

& N. R. Co. v. Wheeler (Ga. App.) 64 SE

1114. Under Gen. St. 1901, $ 5038, case

made may be very brief and may be devised

SWW 486.

mainly for abridging record and lessening

expenses of review. Doyle v. Hays Land &

Inv. Co. (Kan.) 102 P 496. Summary of

lengthy documents @Millcent. Id. Under

Rule 6, printed case is required to be mere

abridgment of what is necessary for

cision, and costs for printing case which

does not comply therewith will not be

allowed. Rule 44. Johanson v. Webster Mfg-

Co. (TW1s.) 120 NW 832; Sparks v. Wiscon-

sin Cent. R. Co. \[Vis.) 120 NW 858; Steinberg v. Salzman \[Vis.) 120 NW 1005.

Printed case, containing whole testimony

in extenso, question and answer, held violation of rule. Swanke v. Herdemann \[Vis.\]

120 NW 414. Laws 30th Leg. p. 509, c. 24,

providing for statement of facts in narrative

form, etc., and repealing Laws 29th

Leg. p. 220, e. 115, held not to control

ling of statements in appeals taken before

it went into effect, even though no state-

ment had been perfected therein before it

Went into effect, but that such appeals were

governed by previous law. Missouri, K. &

T. R. Co. v. Waggoner \[Tex.\] 115 SWW 1172.

Laws 29th Leg. p. 220, c. 112, $ 3, 4, held

to have required ailing of stengraber's

transcript of testimony with clerk below.

Id. Act 30th Leg. is directory, and rights

are not necessarily lost by failure to

low it. Id. Though disregard of statute

ought generally to be held ground for

discarding statement, rule may be relaxed

under particular circumstances, as where

statement contains all that statute requires,

and fact that it contains much that

observance of it would exclude is due to

fusion incident to recent change in law.

Id. Statement of facts, which, instead of

being in narrative form as required by

laws 1907, p. 510, c. 24, $ 5, consists of

stengraber's notes in _full_, containing court, and verbatim copy of interrogatories

and answers, will be stricken on

motion. lvy v. Ivry \[Tex.

Civ. App.) 112

thereto, held fatally defective. Knox v.

SVW 110; Poitevent v. Scarborough \[Tex.

Lavinq Terminal Co. (Ga. App.) 117 SWW 443; Wharton v. Chunn

1134. Brief containing copies of document-

(Tex. Civ. App.) 115 SWW 887; Murphy & Co.

ty evidence held insufficient. Coence Oil

Refining Co. v. Planters' Oil Co. (Ga. App.) 115 SWW 887;

Motion to strike statement overruled pro

65 SE 144. Stenographic report of evidence

from, where same result would follow

whether statement was considered or not

da. App. 519, 61 SE motion for a new trial,54 the case must be settled and approved by the trial judge 55 within the time limited by law or rule,56 or an extension thereof July granted.57

Footnote 64: The \_H.

A party will not be prejudiced by delay due solely to the fault of the trial judge. \[88\] It is generally provided that the proposed case, \[69\] with notice of settlement, \[90\] be served on the adverse party within a specified time, \[91\] or an extension thereof duly

made below to dismiss proceeding, and it \[118 SV 1142. Loss of depositions excuso was still pending there and not abandoned, held court of appeal was bound to assume that appellant had been guilty of no in-Civ. App.\] 116 SVW 638. Unexused delay excusable neglect in that proceeding. Id. Of 9 months where statement might have On motion to dismiss appeal for failure to consideration, though filed over a month on point must be resolved in favor of ap-pelant and action of court below in set-time statement. Rlison V. Steyner \[Cal. App.\] 99 P 377.

Georgian: Where term order allows mov-ant for new trial to present brief of evidence at hearing and file same within 10 days thereafter, order for filing after hearing are hearing is necessarily merely directory, and if brief be filed by time bill of exceptions is certified, and is part of record, supreme court will consider and pass upon such as-signments of error as depend upon evidence. Mitchell v. Masury \[Ga.\] 64 SE 275.

Kansas: Motion for new trial was over-ruled and time for preparing case made permitted to expire without action. Subsequent motion for new trial on ground of one, City of Shawnee v. Farrell \[Okl.\] newly discovered evidence was overruled, and case was served and settled. Held that \[(SS 4742) c. 66, art. 22, SS 544. Horner v. case-made presented no question except whether error was committed in overruling second motion. Kelley v. Kelley \[Kan.\] 99 P 1134.

New Jersey: Act April 12, 1905 (P. L. 1905, p. 259), allowing judge of district court to certify transcript of proceedings and test-timony made by stenographer as a state of the case to be used on hearing of appeal, llmita time within which certification may be done and transcript filed to period of 16 days after judgment, and such period may not be extended by district court. Erwin v. Wohnfert \[N. J. Law\] 70 A 153.

New York: Whether to open default in failing to file and serve printed case will not lie in apellate court after trial court has entered order declaring appeal abandoned under general rule of practice 35, and where case is settled but appellant is unable to obtain signature of judge within ten days, he should move in trial court for extension or, after default, move in trial court to report, and if unsuccessful appeal from later order. Baylor v. Levy, 113 NYS 802.

Missouri: Motion to strike statement because not filed with clerk below in time may be met by proof that it was so filed. Missouri, K. & T. R. Co. v. Waggoner \[Tex.\] 115 SV 1172.

Texas: Act May 25, 1907, held to require statement to be filed within thirty days from final judgment of term, whether statement was made by agreement of parties or by court under SS 14 or by stenographer at court's direction, under SS 5. Knox v. McElroy \[Tex. Civ. App.\] 118 SVW 638. Unexused delay or 9 months where statement might have been filed by reasonable diligence prevents consideration, though filed over a month before submission of case. Id.

Dobson v. Zimmerman \[Tex. Civ. App.\] 118 SVW 236. Statement not timely filed will be ignored, Knox v. McElroy \[Tex. Civ. App.\] 118 SVW 4714, 472. Betts v. Carling \[Okl.\] 106

#### 13.4.1 Aperture and Review

The _same_ aperture is used to measure may be corrected by resettlement on motion.72 Motions respecting a case prior to its settlement should be made in the trial court.73

(SS 9C) 8. \_Abstracts.74-See 11 C. L. 170--Where the practice of abstracting prevails, an appellant should file,75 in due time,76 an abstract containing all that is necessary to a presentation of the matters he wishes to urge 77 and made up in the

being equivalent to refusal before its ex-

without recourse to record. International pstration, and hence mandamus will lie to

Hotel Co. v. Flynn, 141 Ill. App. 502; York v. compel him to do so though 30 days has ex-

Scott, 140 Ill. App. 178. Appeal dismissed

pirc. Id.

where brief and abstract were wholly unin-

72. On resettlement of case, trial justice

telligible when considered together, and so may act on his own knowledge and recollection as to what occurred at trial. Jenkins v. Bishop, 117 NYS 630. Where affl-

davits of movant were not contradicted,

which fails to certify evidence or exceptions, or

held that he was entitled to prevail and

to presente pleadings or evidence, have case resetted, at least so far as not

to point out errors complained of, is too inconsistent with recollection of trial judge.

defective to be considered. Buck v. Casper,

Id. Although record shows decision filed

140 Ill. App. 278. Abstract stating sub-

without jurisdiction being apparently more

than fourteen days after trial, order may be

made by appellate court for resettlement,

unless stipulation is made amending record.

Barnes v. Summit Silk Mfg. Co., 113 NYS

87.

Motion to dismiss for failure to make

and serve case. Shubert Thertical Co. v. Ziegfeld, 113 NYS 801. Matters of settle-

ment of case and exceptions must be de

termined below. In re Surweil's Estate,

128 App. Div. 911, 112 NYS 1123.

74. Search Note See Appeal and Error.

Cent. Dig. 8 2573-2620, 8126; Dec. Dig.

8 579-592; 3 Cyc. 77-92; 2 A. & E. Bnc.

P. & P. S13.

75. Duty of preparing sufficient abstract

devoves upon plaintiff in error. Madison

Bank v. Price \[Kan.\] 98 P 222. Appeal dismissed for want of prosecution where no

abstract served or filed by either party, etc.

Meyer v. Chicago, etc., R. Co. \[S. D.\] 117

NVV 1037. Decree affirmed where counsel

did not prepare abstract of record, particu-

larly where right on merits. Zimmerman

v. Brinkmeyer \[Iowa\] 121 NVV 1021. Where

failure to file abstract was due to serious

illness of appellants counsel, held that he

would be relieved from his default. Quartz

Gold Min. Co. v. Patterson \[Or.\] 98 P 551.

76. Delay excused where failure to file

was due to sickness of counsel and over-

crowding of printer with work. Barham v.

Shelton \[Mo.\] 119 SW 1083. Alleged oral

stipulations extending time for Mling ab-

stract not considered, where counsel differ

in their recollections regarding same. Rev.

Pol. Code, $ 699. Bunday v. Smith \[S. D.\]

121 NVV 792. Motion to strike amended abstract because not filed in time held made

too late, where abstract was filed two

months before time for submission, and

no motion to strike was interposed until

after record had been certified, and appelee

had prepared in part his argument based

on such amended abstract. Aga v. Harbach

\[Iowa\] 117 NVV 669.

77. Matters not in abstract not considered. North State Fire Ins. Co. v. Dillard

\[Ark.\] 115 SW 154. Voolner Distilling Co.

v. Peoria & D. R. Co., 136 Ill. App. 479;

Cahill v. Printy, 138 Ill. App. 600; Robinson

v. Yetter, 148 Ill. App. 172; Ennis v. Tucker

\[Kan.\] 98 P 140. Should be sufficient to

enable court to pass on questions involved

without recourse to record. International

Hotel Co. v. Flynn, 141 Ill. App. 502; York v.

Scott, 140 Ill. App. 178. Appeal dismissed

where brief and abstract were wholly unin-

culligible when considered together, and so

in conflict that if one was true other was

false. Dawson v. Ash Grove White Lime

as'n, 134 Mo. 210, 113 SW 718. Abstract

which fails to certify evidence or exceptions, or

to be presente pleadings or evidence,

or to point out errors complained of, is too

defective to be considered. Buck v. Casper,

140 Ill. App. 278. Abstract stating sub-

stance of pleadings, setting out all of the

Instructions, printing evidence, and show-

ing that assignments of error were duly

reserved in motion for new trial, held suf-

Barn manner required by law or rule.\[18\] Unnecessary matter should be omitted " and that included condensed as far as possible.\[80\] The court is not bound to go to the custom. Jett v. Crittenden & Co. \[Ark.\] 116 SSV 665. Motion to strike abstract because it allowed on its face that it did not contain all the evidence denied where it purported to contain it all, though reference was made therein to certain immaterial exhibits which were described but not copied. Coldren Land Co. v. Royal \[Iowa\] 118 NW 426. In appeal under short form, abstract must contain copy of judgment or concise statement of it. State v. Southwestern Mach. Co. \[Mo. App.\]. 116 SSV 1065. Copy in transcript insufficient. Id. Mere statement of counsel in abstract that certain order was made, without setting out such order. Bootling Co. \[Mo. App.\] 117 SSV 119. Tech. is insufficient. Sheridan v. Post \[Mo. App.\] 119 SSV 500. No reversal of decree can be allowed where abstract fails to disclose tenor of exceptions and disposition of them by court. Chahill v. Printz, 138 Ill. App. 600. Must show that rulings and exceptions were preserved in bill of exceptions. Thompson v. Ruddick, 213 Mo. 561, 111 SSV 1131; Groves v. Terry \[Mo.\] 117 SWV 1167. Where abstract does not point out what bill contains, case will be treated as though no bill of exceptions had been filed. Gilchrist v. Bryant, 213 Mo. 442, 111 SSV 1128. R record in search of matters not abstracted "!" but may do so for the purpose of sustaining the judgment."2 Service on the adverse party is sometimes required."8 Errors or omissions may sometimes be supplied by filing a supplemental abstract."8 In some states, if a respondent is not satisfied with an abstract furnished by appellant, he may file one of his own 85 or propose amendments," and statements in appellant's abstract will be taken as conclusively true unless he does so."1 In some states a denial of the correctness of appellant's abstract may result in compelling him to substantiate it by certification of a transcript of the evidence when an examination thereof is necessary to determine the controversy as to what it contains."8 The insufficiency of the abstract does not deprive the appellate court of jurisdiction otherwise conferred,"8 and where jurisdiction exists its decision as to such sufficiency is not open to collateral attack."

through entire evidence instead of being placed together following title, held that authorizes dismissal of appeal, no leave court would disregard everything except judgment roll. O'Keefe v. Beecher \[N. D.\] abstract after adverse party has served 117 NWP 353.

8L. Files v. Law \[Ark.\] 115 SWV 373; Dunbar v. Bell \[Ark.\] 115 SWV 670; Finley v. New Cache La. Poudre Irr. Co. \[CoLo\] 98tional abstracts or amendments to abstract P 173; Reavely v. Harris, 231 Ill. App. 600; City emanances held such that it should not be of Dixon v. Allemand, 136 Ill. App. 449; V Woolner Distilling Co. v. Peoria & E. R. Co., 117 NWP 62. In order to have matters going to jurisdiction of appellate court considered if not what is record proper or record entries, nor must file additional abstract. Lyons v. Strong v. Terry \[Mo.\] 117 SWV 1167. Where Instrument on which perenptory instruction was based not set out, presumed to be correct. Baker v. Cazort \[Ark.\] 112 SWV 890. To determine correctness of findings where abstract insufficient. Nunn v. Lynch \[Ark.\], 115 SWV 926. To determine correctness of instructions not set out. Chicago Pneumatic Tool Co. v. Stms \[Ark.\] 119 SWV 1118. To determine whether name of grantor appears in dead not abstracted. Runyan v. Snyder \[CoLo.\] 100 P 420. Where abstract on error to review ruling on demurter to complaint did not set forth complaint or Its substance or ehow judgment complained of, held that writ would be dismissed pursuant to Rule 14. Purdy v. Geary \[Colo.\] 100 P 426. S2. City of Dixon v. Allemand, 136 Ill. App. 449; Voolner Distilling Co. v. Peoria & E. R. Co., 136 Ill. App. 479. S3. Matter of service of printed abstract held to be governed by rule 29, providing for service at least 80 days before day assigned for hearing, rule 87 going no farther than to provide result of failing to file abstract in clerik's office within 80 days before beginning of second term after appeal 1s taken. Culbertson v. Salinger \[Iowa\] 117 NWP 6. S4. Bill of exceptions to be considered though no record entry abstracted showing motion for new trial or extension of time for filling bill where such matters shown by supplemental abstract filed in time. Ewing v. Vernon County, 216 Mo. 681, 116 Nov 518; Harkreader v. Vernon County, 218 Mo. 696, 116 Nov 523. Supplemental abstract not to be noticed when presented at hearing on appeal without consent, Phoenix Stone & Lime Co. v. Huggens \[Mo. App.\] 116 SWV 458.

9. _D. Sufficiency of entire record to present particular questions._ (_Pre-sumptions on appeal._) 91- See 11 C. L. 171. The appellate court will look to the entire record 92 but to nothing outside of it.98 Every presumption favors the correctness of

of abstract, and neither its judgment on \[ 247. Record in another case filed with that question nor on merits is open to col-

record on appeal In action involving title lateral attack, its decision in such case, if

v wrong, being only error. State v. Broad-

year that same land was involved in both dus, 216 Mo. 336, 115 SWV 1018. Supreme court on ecritorial cannot quash judgment

Drovers' Bank \[Ky.\] 113 SWV 445; Burton-

cf court of appacks in cause of which it had jurisdiction on ground that there is

error in the judgment. Id.

the rulings below,94 and the regularity of proceedings there had,95 and accordingly

York, 117 NYS 855. Court cannot take judicial notice of width of lot for purpose of determining distance of certain point from certain street in support of instruction as to such distance which was not based on any evidence. Gessner V. Metro-politan St. R. Co., 132 Mo. App. 584, 112 SSV 30. Appellate court cannot take judicial notice of ending of term of lower court though they will of its beginning. Breimeyer v. Star Bottling Co. \[Mo, App.\] 117 SWV 119. Court cannot take judicial notice of existence of streets in municipalities. Yockey v. St. Louis \[Mo.\] 117 SWV 733. Circuit court of appeals may take notice of facts outside record disclosing moot character of case, rendering decision un-necessary. Keely v. Ophir Hill Consol. Min. Co. \[C. C. A.\] 169 F 601. 94. Falk v. Klimmerie \[Fla.\] 49 S 504; Davis v. Horne \[Fla.\] 49 S 505; Southern Home Ins. Co. v. Putani \[Fla.\] 49 S 892; Watt v. Deeker \[Idaho\] 101 P 253; Unger v. Mellinger \[Ind.\]. 88 NE 174; Ansley v. Stuart \[La.\] 48 S 953; Phelps v. Conquer Zinc Co., 218 Mo. 572, 117 SWV 705; Toole v. Wericke \[Mont.\] 102 P 590. Error will not be presumed, but must affirmatively appear from record. Pierce v. Pierce \[Vwash.\] 101 P 358; Lindly v. Lindly \[Tex.\] 113 SWV 750. Burden is on exempting party to point out error committed. City of Man-chester v. Duffson \[N. H.\] 70 A 1075. Ordinarily where law requires some issue of fact as condition precedent to lower court's right to enter particular decree, such facts are presumed, and complaining party has burden of rebutting presumption. Fagan v. Fagan \[Tex. Civ. App.\] 120 SWV 550. Where recolent court could not assume facts stated by appellant on objection as con-ceded by respondent, or that evidence was offered in aid of objection. San Domingo Gold Min. Co. v. Grand Pac. Gold M'in. Co. \[Cel. App.\] 102 P 548. Where record does not show reason for ruling, will be sustained on any theory possible. Fulwider v. Trenton Gas. L. & P. Co., 216 Mo. 582, 116 SWV 508. Where motion to quash afflavit and dismiss proceedings did not disclose any reason for so doing and none was presented on appeal, presumed in support of refusal that it was for some reason that did not present cause for so doing. Campbell v. State \[Ind.\] 87 NE 212. Where record is silent as to reason for rulings, after presumption supports judgment. Cot-tle v. New York, etc., R. Co. \[Conn.\] 72 A 737. Must presume, until contrary appears, that orthansur court properly exercised its powers in allowing commissions to executor. In re V Watts Estate, 108 Ind. 686, 71 A 316. WThere court made no findings of fact or conclusions of law, and rendered judgment for defendant, and all material allegations of complaint were denied by analyser, held that it could not be said that error in overruling demurrer to part of answer was prejudical, since court might have found allegations of complaint untrue, and error would not be presumed. Adams v. Columbia Canen Co., 51 Wash. 297, 98 P 711. On objection that lower court had no jurisdiction of garnishment afflavit be the record, to present an alleged error, must not only show the ruling complained of,"96 and, unless the error is one apparent on the face of the record proper,"97 objection and exception thereto\*\* and the grounds therefor,"99 and the taking of such

& Grain Exeh. 140 Ill. App. 462. In absence of express showing to contrary, it will be presumed that proper and essential officials,

Wasst show that question was ruled on were present and performed their functions in trial court, transcript showing that trial was at proper time and place Broadcasting v. Runssel \[Ala.\] 49 S 327. Presumption of performance of d'yty by ordinary as to returning papers to clerk. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 SS 1039. Presumption that minutes were kept and properly approved by judge, unless contrary appears. Reynolds v. Egan, 122 La. 47, 47 S 371. Presumably judge in entering judgment for plaintiff in action of re-plevin on his minute book actually pronounced judgment, not only against all the defendants of record, but also against varieties on delivery bond, as required by Rev. St. 1899, $ 4476, and in absence of showing by record, evidence that judgment was not so pronounced must be presumed that clerk entered judgment actually pronounced. Kreisel v. Snasery \[Mo. App.\] 115 SWV 1059. An appeal in local option election contest, presumed in support of action of commis-sioner's court in ordering election that it knew population of certain town, on which its right to act depended. Cofield v. Britton \[Tex. Civ. App.\] 109 SWV 495.

96. Thanks v. Miller, 142 Ill. App. 486; Dayton Lumber Co. v. Stockdale \[Tex. Civ. App.\] 118 SWV 805. Where no copy of order of railroad commission sought to be set aside or statement of its contents is included in briefs or record, supreme court will assume it was no broader than averments of complaint seeking to set it aside.

Chicago I. & T. R. Co. v. Railroad Commis-sion \[Ind.\] 87 NE 1050. Upon appeal from "the judgment and order" where after order refusing dismissal defendant stood mute and final order was entered for plaintiff, it will be presumed that appeal is from final order and not from nonappealable order refusing dismissal, fact that final order, in effect a judgment in the case is called a "judgment" being immaterial. Atischuler v. Lipschitz, 113 NYS 1058. Where, so far as record disclosed, only judgment against against against was for sum taxed as defendants' costs, held that it would be presumed that it was from that judgment that appeal was prosecuted. Bell v. Thompson, 8 Cal. App. 483, 97 P 158. Where record clearly shows what was intended by court and parties, party cannot be deprived of right of exception by napt words of court in ruling or by clerk in recording. Honey v. Guiliumium \[Ind.\] 88 NE 937.

Wasst show that ruling was made. Thomas Bros. Co. v. Price \[Fla.\] 48 S 262; Haswick v. Davidson, 15 Idaho, 187, 10 P 91; Ansley v. Stuart \[La.\] 48 S 953; Dium 197; et v. Hoes, 124 App. Div. 547, 111 NYS 823. Where judgment was entered against one defendant and three defendants moved for new trial whereupon order denying motion of one is entered, appeal by three from judgment and order against "them" raises no question, since such judgment and order 196 APPEAL AND REVIEW $ 9D. 13 Cur. Law.

other steps as are necessary to save the question for review 1 and to bring up the appeal,2 but so much of the evidence 8 and proceedings below * as to exclude every

Footnote 196: The author is grateful to the anonymous referee for the following comments.

Footnote 197: The author is grateful to the anonymous referee for the following comments.

Footnote 198: The author is grateful to the anonymous referee for the following comments.

party to appeal was partly below, it will be presumed that he was included by inad-vertenence. Id. Where transcript shows that appeal bond was filed but does not set it out, such bond will be presumed to be complete in all respects. Taylor v. Leesntizer, 31 App. D. C. 92. In absence of bill of exceptions, held that it could not be said that qualification of appellants's bill of exceptions by court was not done with his consent. Brunner Fire Co. v. Payne \[Tex. Civ. App.\]. 118 SWF 602.

S. Questions depending on the evidence cannot be reviewed where such evidence is not in the record. Central of Georgia R. Co. v. Ashley \[Ala.\] 48 S 981. Where evidence not preserved by proper bill of exceptions. London v. Hutchens \[Ark.\] 114 SWF 1015; Barringer v. Bratcher \[Ark.\] 118 SWF 1015; Truesdale v. Board of Com's \[Colo.\] 99 P 63; Jones v. Middle Georgia \[Colo.\] 98 P 63; Jones v. Middle Georgia \[Colo.\] 48 S 953. Where there is no bill of exson v. Bell \[Ga.\] 64 SE 688; Harrison v. Harrison \[Ga.\] 65 SE 126; Russell v. Hammock, d. Ga. App. 519, 61 SE 1054; Huntley Mfg. Co. v. Nikon Grocery Co. \[Ga. App.\] 44 SE 279; Milne Mfg. Co. v. Cowart \[Ga. App.\] 64 SE 1002; Wright v. Johnson \[Ga.\] 49 S 922. Order based on affl-App.\] 65 SE 601; Ocone oil Refining Co. v. Palenters' Oil Co. \[Ga. App.\] 65 SE 144; of facts or bill of exceptions cannot be re-Johnson v. Amacher \[Ind.\] 86 NE 1014; viewed. McDonald v. Downing \[Iwash.\] 100 P 834. Where district court quashed son & Palmer Co. v. Ferguson's Admr \[Ky.\] 1014 SWF 297; Spurur v. Spur \[Mim.\] 121 NWF 121; Adams v. Bank of Meadville \[Miz.\] 48 was quashed and what portion considered. S 831; Robbins v. Robbins \[Mo. App.\] 119 held that evidence would not be considered.

SVV 1075; Londis v. Levin, 113 NYS 541; Union Pac. R. Co. v. Colafax County \[Neb.\] Worthum v. John \[Okl.\] 98 P 347; Cesare 122 NW 29. Where bill of exceptions is too v. Cesare \[Okl.\] 98 P 916; Applebaum v. voluminous in setting out all evidence. Bass \[Tex. Civ. App.\] 113 SWF 173; Hall v. questions depending on rulings on evidence First Nat. Bank \[Tex. Civ. App.\] 116 SWF will not be examined. Olland v. Oregon 293; Opermann v. Petry \[Tex. Civ. App.\]. 102 P 586. Where 115 SWF 300; Cunningham v. Lakkin, 50 Wash.

there is no statement of facts or bill of ex-384, 97 P 447; Malfa v. Cribel \[Wash.\] 100ceptions, and no fundamental error, and P 1012; Pierce v. Pierce \[Vwash.\] 101 P 358; assessments relate to matters which can-Speccleus v. Brown, 212 U. S. 208, 53 Law.

nd be revised without such statement and Ed. --. In absence of bill of exceptions, bill, judgment will be affirmed. Green v. error cannot be assigned on matter which Cook \[Tex. Civ. App.\] 118 SWF 766. Will such bill should contain nor can judgment not consider errors not presented by bill be reversed for failure to submit question of exceptions. Borys v. Bernhard Milling to jury. Chess v. Vockrath, 75 N. J. Law, Co., 138 Ill. App. 88; Ferguson & Palmer G65, 70 A 73. Where neither party furnishes do. Armit \[Ky.\] 114 SWF 297; distinct of evidence, or any record of pro-cedings had or rulings made at trial, every presumption will be ludiged, and every product of program-level.

Tilton v. Gates Land Co. \[Vis.\] 121 NWF seedlings had or rulings made at trial, every presumption will be ludiged, and every record proper can be considered. Morgan doubt solved, in favor of regularity and Preek Drainage Dist. v. Hawley, 240 Ill. proprity of judgment. Hambro Distilling \[Iwash.\] 123, 88 NE 465; State v. Shockley, 216 Mo. & Distributing Co. v. Price & Co. \[Iowa\] 856, 115 SWF 966; Weeks Hardware Co. v. 119 NWF 541. Where transcript does not contain all the evidence, presumed omitted or. Morris \[Mo. App.\] 115 SWF 504. Where portion authorized action of court. Garg v. Truth Printing & Pub. Co. \[LA.\] 49 S 62.

In equity appeals, whole case below must be brought up in order to give supreme court jurisdiction to interfere. Ness v. Bonnell \[W fair intendment in support of such rulings, and the record must affirmatively show that it contains all such matters.5 In the notes will be found applications of this

execptions contained no evidence showing that there had ever been such a former proceeding, though record in country court showed that motion to dismiss on that ground was filed. Fitzmaurice v. Turney, 214 Mo. 610, 114 SWV 504. In suit on liquor ground cannot be considered. Smith v. dealer's bond, where bond not in statement of facts and it did not appear from such statement that bond exhibited to clerk as witness and introduced in evidence had been executed by parties to suit as sureties, appellate court could not regard bond set out in petition as supplying omission. Hillian van V. Gallagher \[Tex. Civ. App.\] 120 SWV 505. Where record did not contain copy of will, trial court's construction thereof presumed to be correct. Robertson v. Schard \[Iowa\] 119 NWV 629. Where record did not disclose terms of lease, held that contention that, on forfeiture of lease, lumber on premises became property of lessor would not be sustained, since forfeiture of property is not presumed. Mueller Lumpe C. v. McCaffrey \[Iowa\] 118 NWV 903. Where ded not in bill of exceptions, objections that rectalts were inconsistent could not be considered. Sloss-Sheffield Steel & Iron C. v. House \[Ala.\] 47 S 572. Stipulation that copies of statutes and decisions of another state introduced in evidence might be attached to record in lieu of originals held not to warrant supreme court in locking to such statutes and decisions as were cited in argument, where there was no bill of exceptions showing what statutes and decisions were before lower court. Union Cent. Life Ins. Co. v. Dukes \[Ky.\] 118 SWV 454. Rectalts of judgment conclusive as to whether evidence heard where record on appeal from judgment which was entered under warrant of attorney with power to confess judgment is silent. First Nat. Bank v. White \[Mo.\] 120 SWV 36. No presumption that mortgagor had wife on March 27, 1906, where record shows spouse on March 25, 1905, so as to render former mortgage void within Kirby's Dig. g 2901, requiring founder of both husband and wife in instrument affecting homesetad. Jett v. Orittened & Co. \[Ark.\] 116 SWV 656. No presumption of certificate admitting will to probate, where after affladvits, record merely states "Here follows certificate" without setting it forth. Larabee v. Larabee, 240 ILT 576, 88 NE 1037.

4. Where record fails to show when action was commenced, question of laches in bringing action cannot be considered. Grant v. Powers Dry Goods Co. \[S. D.\] 121 NWV 95. Where record incomplete, appeal dismissed. Cossey v. Smith, 32 App. D. C. 193. Action of court in advancing cause not reviewable where bill of exceptions did not show that let was not reached and tried in its regular order. Bonney v. McClelland, 128 Ill. App. 449. Quashing of attachment held not reviewable where motion to quash and answer thereto were not preserved in bill of exceptions. Harris v. Fox \[Ok.\] 99 P 651. Assignment relating to fees allowed receivers not 'considered, where record did not contain auditor's report on receivers' script failed to show that it was done. Pulls v. Somerville, 218 Mo.

624, 117 SWV 736. Appellant's statement in brief that "the record does not show that the referee ever took the oath" held merely statement that neither short transcript nor abstract filed by him so showed, and not to refer to record of circuit court. Id. Order of district court dismising appeal from produce court on ground that it was not perfected in time sustained where transcript failed to show that it was so perfected by filling required undertaking with time prescribed. Watt v. Decker

\[Idah\] 101 P 253. Refusal of district court to permit appliant from debate court to Ile amended undertaking sustained, where transcript did not contain original undertaking or copy thereof and it could not therefore be determined whether it was capable of amendment. Id. Presumed that amendment at subsequent term of order allowing appeal to apellate court so as to allow appeal to supreme court was correct and in accordance with law, where no bill of exceptions taken at time showing that court did not have any minute, me-morial paper, or memorandum in writing authorizing correction of error, though it did not affirmatively appear that he had. Chicago & N. W. R. Co. v. Glos, 239 Ill. 24, 87 NNE 85L. Contention that validity 'of judgment in justice court against claimant in garnishment proceedings could not be raised on special appeal to circuit court, but only by veritorari, not determined, where affladvits of claimant upon which special appeal was based was not included in rectal or. Dunkley v. McCarthy \[Mich.\] 16 Det. Leg. N. 403, 122 NWV 126.

5. In testing rulings on admission of evidence, certificate of court that record condentins all evidence necessary to full understanding of enumerated exceptions is conclusive, and supreme court must assume that no other evidence on specific points enumerated was offered or received. Hos-kina v. Scott \[Or.\] 96 P 1112. Where, how-ever, court's action in overfuling motion for inconstant or in refusing to direct verdict is called in question, unless record itself dis * \[13\] Cur. Law. PPEL AND REVIEW $ 9D.

rule to rulings of the lower court relating to jurisdiction,6 process,7 venue,8 parties,9

- \[14\] C. C. R. Co. \[Colo.\] 98 P 321. In view of every presumption must be indulged in favor of the verdict. Id.
- \[15\] Necessary of recruit or certificate: Must contain all the evidence. Dalton v. United
- \[16\] R. Co., 184 Mo. App. 392, 114 SWV 561. Statement in case made "And the foregoing in Co., V. Jones \[Colo.\] 102 P 171. Stoddard
- \[17\] V. Fox, 15 Idaho, 704, 99 P 122; Barnes v.
- \[18\] Loomis, 199 Mass. 578, 85 NE 862; Regan v.
- \[19\] McHugh, 78 Ohio St. 326, 85 NE 559; Carter
- \[20\] V. Cummings-Wilson Co., 34 Utah, 815, 97 P 334; City of Chicago v. Troy Laundry
- \[21\] Mach. Co. \[C. C. A.\] 162 F 678. Certificate of stenographer that evidence contained in case made was correct transcript of all his notes of all evidence, held unauthorized and
- \[22\] not to supply requirements of rule that
- \[23\] case made must contain specific averment
- \[24\] that record contains all evidence introduced
- \[25\] at time. Wagner v. Sattley Mfg. Co. \[OkI.\]
- \[26\] peal from judgment of contempt that dis-
- \[27\] all the evidence can be shown only by cer-
- \[28\] State v. Walker \[Kan.\] 97 P 862. Where
- \[29\] action at law is tried to court without
- \[30\] Surfleency of certificate or re 200

APPEL AND REVIEW $ 9D. 13 Cur. Law.

pleadings,10 matters preliminary to trial,11 motions and affidavits,12 entry and open-

included with others in motion to modify

\[Ala\_\] 47 S 1005. Not considered where

decree, held that it would be assumed that

she became party in some proper way

where appellee did not raise the question.

Kirchgraber, 134 Mo, App. 211, 113 SWV 1149.

Brown v. Traul \[Iowa\] 119 N NV 149. Where

Motion to strike out amended petition,

record is silent, presumption obtains in

which in effect conceded that it stated cause

favor of regularity of coat's procedure in

substitution of parties, and that sufficient

of action, but was based on ground that it

and proper showing was made. State Bank

w. Carroll, 81 Neb. 484, 116 N NV 276.

10. Where the record fails to contain the

pleadings, their selficency cannot be re-

by, 134 Mo. App. 589, 114 SWV 1145. One

defendant in partition filed a disclaimer,

Slutsky, 61 Misc. 222, 113 NYS 163. Sufficiency of pleadings will not be reviewed

and another defendant as her next friend

where not indicated in the abstract. Good-

deterst and was old and infirm, and that dis-

hart, Hartman Co. v. Kinney \[Mo. App.\]

claimer was procured by fraud and undue

118 SWV 679. Where record is silent as to

influence. Field that refusal of court to

contents of a plea of privilege, the

sumption is in favor of trial court's ruling.

on plaintiff's appeal where record did not

Gardner v. Planters' Nat. Bank \[Tex. City.

show that court did not hear evidence as

App.\] 118 SWV 1146. Where no bill of exceptions, presumed that judgment dismissing

presumed that he made sufficient in-

ing intervener's petition was correct. Leach

v. Blixby \[Ne.\] 120 NV 427. As trial with-

error in overriding motion to require reply

out an issue, where not vavived, would be

to be made more definite and certain held

erroneous, will not unnecessarily -be as

not open to consideration, where reply was

sumed that parties not answering a cross

amended, and amended reply, which was

complaint or defaulted for failure to do so

held sufficient, was not contained in record.

were in court for purposes of a trial on

Hawkins v. Brown \[Kan.\] 97 P 479.

such complaint. First Nat. Bank v. Farmers'

ers' & Merchants' Nat. Bank \[Ind.\] 88 NBE

considered as curing overriding of demurrer

417. In proceeding to establish claim

though not shown by bill of exceptions.

against decedest's estate, where record did

not show that claimant's original pleading

S 654. Overriding of demurrer not

everyed for allowance of claim or was filed

able where demurrer not

record. Ala-

within time limited by statute, held that it

could not be presumed that such was case,

Horna V. Gray & Dudley Hardware Co.

amended pleadings having been filed after

such time, and judgment having been re-

V. Ashley \[Ala\_\] 49 S 285; Farmers' & Merchants' Bank v. Sharum \[Okl.\] 97 P 555.

ell \[Tex. City. App.\] 117 SWV 433. Construc-

Ruling sustaining demurrer to count as

tion placed on pleading by trial court will

be adhered to where from its plain terms

not show in what amendment consisted.

It is susceptible of such construction.

Flowers v. Poorman \[Ind. App.\] 87 NE 1107.

of demurrer to count refied after amend-

Presumed, in absence of showing to con-

ment, not reviewable where record does not

trary, that sufficient cause was shown to

discoles amendment which might have

warrant court, under rules, in permitting

defendants to file supplemental affidavit

\[Ala\_\] 47 S 149. Presumed that demurrer

defense. Sulmer, Cappeau Lemley &

on which no unequivocal ruling is shown

Miller Co. \[Pa.\] 72 A 270. Where allegma-

was abandoned. Central of Georgia R. Co.

tion of petition that parcel of land sold on

v. Ashley \[Ala\_\] 48 S 981. Where defend-

mortrage forcelasure was not divisible was

ant files three pleas, first two being gen

not denied, and it was sold as whole, pre-

spaned that petition and mortrage filed as

is demurred to, though record shows no

exhibit so described it as to enable court

action thereon and judgment recites issue

to determine that it was indivisible, though

no proof appeared to have been taken on

sumed abandoned, and that issue was joined

question. West v. McDonald \[Ky.\] 113 SWV

872. Every presumption to be indiuded in,

\[Ala\_\] 47 S 1008. When record silent as to

in favor of ruling of trial court on con-

disposition of demurrer ing of defaults,\[13\] depositions,\[14\] proceedings at the trial in general,\[15\] admission,\[16\]

order than a judgment, if no point is based on discrepancy on appeal, it may be disregarded on presumption. Spitz v. New York Taxicab Co., 62 Misc. 492, 115 NYS 247. Any error found in bill in equity will be presumed as supporting decree sustaining de-frederal court on ground that petittion murrer thereto, although this ground was not specified in motion while other and un-tenable SFrounds were so stated. Depue v. Miller \[W. Va.\] 64 SE 740. Where demurrer containing general and special grounds is sustained and petittion dismissed, there is no presumption that ruling is based on any particular ground, but judgment will be treated as sustaining entire demurrer upon all grounds, and affirmed if proper on any ground. McClaren v. Williams \[Ga.\] 84 SE 46. Where record discloses number of de-murrers to separate counts of complaint and judgment shows only ruling on single demurrer to entire complaint, overriding of various demurrer's reviewable, since court cannot read judgment entry contrary to plain recital to put trial court in error. Alabama Chemical Co. v. Niles \[Ala.\] 47 S 29.

Amendments: Court bound by record in determinisher answer was amended. Wright v. Deaver \[Tex. Civ. App.\] 114 SW SW 165. No presumption of allowance of amendment where record showed application, but record silent as to action thereon. Leggat v. Palmer \[Mont.\] 102 P 387. Whether refusal to allow amended petition was abuse of discretion not considered where amendment was not made part of record. Thornbury v. Bolt \[Ky.\] 116 SW 1177. Refusal to allow amendment not ground for reversal where record did not show reason therefor urged below. Nichols v. Central Trust Co. \[Ind. App.\] 86 NE 878.

Where was no offer or request to amend lien notice below, assumed that formal defect therein was not pointed out or that lie was held sufficent. Cornelus v. Washington Steam Laundry \[Wash.\] 100 P 727. Though complaint might have been amended so as to withstand d'omurrer without setting up different cause of action, held that it would be presumed on appeal from order sustaining demurrer thereto that plaintiff did not offer to amend, in absence of showing in record to contrary. Mullarky v. Young \[Cal. App.\] 100 P 709. Plaintiff held not entitled to complain that he was not given opportunity to amend on sustaining of demurrer to complaint, where record did not show that request to amend was made. Healey v. Zobel \[Colo.\] 101 P 66. Where finding as to nature of cause of action originally stated, on which allowance of amendment was based, depended on matters outside record, and circumstances under which it was made were not reported, held that it would be presumed that court was satisfied as to matter before allowing amendment. Herlihy v. Little, 200 Mass. 284, 86 NE 294. If necessary to support court's action in allowing amendment to declaration, will be presumed that court inquired de hors pleadings and found that amended declaration declared on same cause as original. Davis' Adm'x v. Rutland R. Co. \[Vt.\] 71 A 724. In absence of evidence, cannot be presented against action of court hence that such default and decree were properly set aside as having been inadequententent in absence of showing as to what such veretently entered. Gray v. Carroll \[Iowa\] 120 NWV 1035. Order setting aside plaintiff's default for failure to answer cross complaint presumed to have been properly made, unless it appears from record that were no grounds upon which it could have been made. Wood v. Johnston, 8 Cal App. 268, 96 F 508.

**14.** Failure to pass on motion to suppress held not ground for reversal where record did not affirmatively show that motion was called to court's attention or that depositions were introduced in evidence or used at trial. Bifuell v. Sinclair \[OK1.\] 99 F 653. Where record fails to show that trial court passed on exceptions to depositions, presumed that they were wavled. Verification v. Nickel \[KY.\] 114 SWV 270. Where trial was to court and all evidence was not certified up, held that admission of deposition in evidence would not be reviewed since court might have disregarded it and based findings on other evidence which was sufficient to support them. Mundt v. Commercial Nat. Bank \[Utah\] 99 F 454.

**15.** Presented, in support of order staying action on note until plaintiff had exhausted other securities, that court found that allegations of cross bill, that plaintiff would not thereby be delayed or inconvenienced in collection of debt, were true. Chemical Nat. Bank v. Klann \[Tex. Civ. App.\] 113 SWV 948. Record need not state reason why another judge was called in to act for regular one, but it will be presumed to have been for legal reason unless record shows contrary, State v. Fidelity & Deposit Co. \[Mo. App.\] 117 SWV 618. In absence of showing to contrary, presumed that supernumerty judge, who presided at trial and signed bill of exceptions, lawfully held court in place of regular judge, though record shows term organized by regular judge. North Alabama Trac, Co. v. Daniel \[Ala.\] 48 S 50. Refusal to consolidate case with another one not reviewed, where record of latter was not before court and was nothing in record to show that consolidation was necessary. Adams v. Mineral Development Co. \[KY.\] 112 SWV 624. Assignments that court erred in denying jury trial, and in acting on motion without a trial and without either party having opportunity to announce ready for trial, over- ruled where no statement of facts or bills of exception, nor anything of record showing that court acted in manner complained of. Kruegel v. Johnson \[Tex. Civ. App.\] 112 SWV 774. Must be presumed. In absence of kill of exceptions to trial by chancellor without jury, that jury was wavled. Leiberman v. Bowden \[Ten.\] 119 SWV 64. Where order restoring lost files is sufficient on its face, it cannot be questioned unless evidence upon which it is based is preserved by pill or exceptions. Heywood & Morrill Rattan Co. v. Jacobson, 140 Ill. App. 317. Where bill of exceptions does not purport to contain all the evidence, presumed that motion to compel attorney for defendant to prove his authority was properly overruled. Merrweather v. Sayre Min. & Mfg. Co. \[Ala.\] 49 S 916. Supreme court will not presume error in allowing introduction of additional evidence after case had been argued and taken under advisement in absence of showing as to what such additional evidence was. Burke v. Burke \[Iowa\] 119 NWV 129. Where motion for re-hearing by chancellor not contained in record and nothing to show it was called to his attention, it is not reviewable. Marx v. District Grand Lodge No. 7 I. O. B. B. \[Ala.\] 47 S 207. Where order of reference was made by judge of division other than that in which action was pending, held that in absence of showing to contrary, it would be presumed that judge making order did so at request of proper judge, and that order was regular. Alexander v. Wellington \[Clo.\] 98 F 631.

**15.** Presented, in support of order staying action on note until plaintiff had exhausted other securities, that court found that allegations of cross bill, that plaintiff would not thereby be delayed or inconvenienced in collection of debt, were true. Chemical Nat. Bank v. Klann \[Tex. Civ. App.\] 113 SWV 948. Record need not state reason why another judge was called in to act for regular one, but it will be presumed to have been for legal reason unless record shows contrary, State v. Fidelity & Deposit Co. \[Mo. App.\] 117 SWV 618. In absence of showing to contrary, presumed that supernumerty judge, who presided at trial and signed bill of exceptions, lawfully held court in place of regular judge, though record shows term organized by regular judge. North Alabama Trac, Co. v. Daniel \[Ala.\] 48 S 50. Refusal to consolidate case with another one not reviewed, where record of latter was not before court and was nothing in record to show that conclusion was necessary. Adams v. Mineral Development Co. \[KY.\] 112 SWV 624. Assignments that court erred in denying jury trial, and in acting on motion without a trial and without either party having opportunity to announce ready for trial, over- ruled where no statement of facts or bills of exception, nor anything of record showing that court acted in manner complained of. Kruegel v. Johnson \[Tex. Civ. App.\] 112 SWV 774. Must be presumed. In absence of kill of exceptions to trial by chancellor without jury, that jury was wavled. Leiberman v. Bowden \[Ten.\] 119 SWV 64. Where order restoring lost files is sufficient on its face, it cannot be questioned unless evidence upon which it is based is preserved by pill or exceptions. Heywood & Morrill Rattan Co. v. Jacobson, 140 Ill. App. 317. Where bill of exceptions does not purport to contain all the evidence, presumed that motion to compel attorney for defendant to prove clusion 17 and sufficiency 18 of evidence, dismissals,19 rulings on demurrers to evi-

was made. Sipe v. Pennsylvania R. Co., 222 in evidence and was correctly set forth in Pa. 400, 71 A 847. Remarks of court not considered where not made part of record.

placing but contract is not included in State v. Second Judicial Dist. Ct., 37 Mont. that contract set forth in petition is same

590, 87 P 1032; Texas & N. O. R. Co. v.

Broom \[Tex. Civ. App.\] 114 SWV 655; Diamond Bros. v. Beckwith, Quinn & Co.

Exception to admission of irrelevant evi-
\[Vyo.\] 98 P 889. In absence of showing that judge was absent from court room

during argument, his continued presence

throughout trial will be presumed. Beans v. Denny \[Iowa\] 117 NWV 1091.

**16.** Presumption is that evidence was properly admitted and burden is upon appeal

lant to show contrary by record. Steele v. Bryant \[Ky.\] 116 SWV 755. Admission of

evidence will not be considered unless evi-

R. Co. \[Ark.\] 119 SWV 837. Where evidence

dence and rulings preserved by proper

secondary record. Hutto v. Stough \[Ala.\]

d7 S 1031; Title Guarantant & Surety Co. v. Nichols \[Ark.\] 100 P 825; Cochran v. Bugg.

suc not raised by pleadings. Heise v. Chil-

131 Ga. 588, 62 SE 1048; People v. Waite, 237

LL. 164, 86 NE 572; Steele v. Bryant \[Ky.\]

116 SWV 755; Jordan v. Le Messaurier \[Michol.\]

lze presumption that judgment offered in

15 Det. Leg. N. 1007, 118 NWV 952; Foster v. evidence, to which only one objection was

Vinstanley \[Mont.\] 102 P 574; Southwell v. made, was rejected for some reason not dis-

Church \[Tex. Civ. App.\] 111 SWV 869; Ivy \[Tex. Civ. App.\] 112 SWV 110; Sullivan v. showing invalidity was offered. O'Bryen v.

Sollis \[Tex. Civ. App.\] 114 SWV 456; Royal

Hays Land & Inv. Co. \[Kan.\] 102 P 501.

Ins. Co. v. Texas & R. Co. \[Tex. Civ. App.\] 115 SWV 117; Moore v. Kirby \[Tex.\]

Cannot be held that evidence was errone-

Appl. 115 SWV 117; Moore v. Kirby \[Tex.\]

civ. App.\] 115 SWV 682; Brunner Fire Co. v.

Payne \[Tex. Civ. App.\] 118 SWV 602; Knox

v. McElroy \[Tex. Civ. App.\] 118 SWV 1142;

Adams v. Columbia Canal Co., 61 Wash. 297,

95 P 741; Dimond Bros. V. Beckwith, Quinn

& Co. \[Vyo.\] 98 P 889. Rule applies in

action for mandamus. Louisville Home

Tel. Co. v. Gordon \[Ky.\] 117 SWV 315. Full

copy of the writing, admission or rejection

of which is assigned on error, must be

printed in paper book. Allentown v. Ackerman, 37 Pa. Super. Ct. 363. Rulings will

be sustained in absence of clear showings

of error. Falk v. Klimmerle \[Fla.\] 49 S 504.

In sult by state for collection of taxes, as-

signment, complaining of admission of mem-

orandum showing adjustment of taxes with

certain persons on ground that said persons

were representatives of certain city and

memorandums referred to city taxes and

hence were not admissible to show payment

of state taxes, overculated where record did

not show that such was case. State v.

Quillen \[Tex. Civ. App.\] 115 SWV 660. Objection to question on ground that

witness had not been shown to possess

requisite knowledge not considered, where

neither answer nor showing previously

made as to his knowledge was given

in abstract or brief. Title Guarantant & Surety Co. v. Nichols \[Ark.\] 100 P 825.

Will not consider objections or exceptions

to parts of testimony unless same are spe-

cifically and particularly pointed out by bill

of exceptions, or in brief or assignment of

errors, and brought to court's attention.

Fuller v. Margaret Min \_.Co. \[V. V.\] 63 SE

206. Where it was stipulated that in con-

solidated actions evidence in one case

should be read in others, properly certified

copies of such evidence will be accepted on

appeal as if read at trial although record is

listent as to such reading. Leiberman v.

Borden \[Tenn.\] 119 SWV 64. Where trans-

report state that contract was introduced

evidence to show error. Hackbarth v.

Gordun \[Tex. Civ. App.\] 120 SWV 691.

recidents of evidence in the judgment, will be conclusively presumed that evidence sus-evidence. Wallach v. MacFarland, 31 App. D. C. 130. Where record did not contain oopy of building contract or specifications. held that exclusion of evidence as to custom do work in particular way could not be held erroneous since burden was on appellant to show error and custom could not prevail against contrary pro-vlsion of the contract. Scheerer & Co. v. Deming, 154 Cal. 138, 97 P 155. Where all evidence is not incorporated in bill of exceptions, rulings will not be disturbed in absence of clear showing of error. Falk v. Kimmerlie \[Fla.\] 49 S 504.

18. Is incumbent on appellants claiming that evidence is insufficient to affirmatively show wherein it is insufficient. Runyan v. Snyder \[Colo.\] 100 P 420. Where there is not conclusive documentary evidence contrary to findings, it must be assumed that such evidence was wholly disregarded. Mc Laughlin v. Rosenbloom, 114 NYS 10. Not reviewable in absence of proper secondary record. Yance Redwood Lumber Co. v. Durphy, 8 Cal. App. 64, 97 P 702; Big Kanawha Leasing Co. v. Jones \[Colo.\] 102 P 171; Jennings v. Shetr \[Ind. App.\] 88 NE 729; Hubbard v. Slavens, 218 Mo. 598, 117 by SSV 1104; Pettis v. McLeain \[OkL\] 98 P 927; Royal Ins. Co. v. Texas & G. R. Co. \[Tex.\]. Civ. App.\] 115 SWV 117; Benar v. Bird \[Tex.\]. Civ. App.\] 118 SWV 121; International & G. N. R. Co. \[Tex.\] 118 SWV 119; Knex v. McElroy \[Tex. Civ. App.\] 118 SWV 114; Eliverstone v. Totten, 50 Wash.

447, 97 P 491; Adams v. Columbia Canal Co., 51 Vash. 297, 98 P 741; Hoffman v. Lincoln County, 137 Viss. 353, 118 NWV 850. Presumed that evidence supported verdict or findings where evidence not properly made part of record. Murphy v. Stelling, 8 Cal. App. 702, 97 P 672; Finly v. New Cache La Poudre Irr. Co. \[Colo.\] 88 P 173; J. P. Wilam. \[A\]. 7 P 132 SWV 387.

113 Remov c. V. Pensacola, St. A. & G. S. S. Co.

112 SWV 385. Such presumption does not prevail, where decree is without the is- -

### 13 Cur. Law.

APPEAL AND REVIEW $ 9D.

dence, \[10\] nonsuits, \[21\] the direction of a verdict, \[22\] instructions, \[23\] findings, \[24\] verdict, \[25\]

the entire record does not change rule. Id.

transaction was correct where judgment di-Supreme court cannot, on appeal from de-cree in equity case, reverse and order new \[Mont.\] 102 P 381. To entitle plaintiff \[\] treat because some of the testimony ma-reversal of directed verdict, record must terald to the issues as presented has been disclose that there was evidence from which lost or destroyed without fault of apelle, jury would have been warranted in find-it having no authority to entertain original ing proven every fact essential to plaintiff's action for new trial. Id. Sufficient if it appears inferentially that bill of exceptions disputed fact which would prevent his recontains all evidence. Board of Directors \[\] V. Powell \[\] 117 SWV 753. When bill of $39. Where answer presented good de-exceptions shows affirmatively that judge-fense, and evidence was not in record, held intent is erroneous and no evidence which that it would be presumed that defendant's could be supplied by presumption would proof fully sustained defense and that ac-sustain judgment, judgment will be re-tion of court in giving perpometry instance. It also shows all evidence.

In this favor was proper. Common-dence. Id. No presumption of evidence \[\] 1074, 112 SWV 632. In absence of statement ties, where bill of exceptions did not con-tain all evidence. Id. Where it affirm- to refuse to direct verdict. Griffith \[\] 114 SWV 1167. Bill of $39. Where disnver presented good de-exceptions held insufficient to present error apply to whole case. Next State Fire Ins. in denying motion for directed verdict \[\] 115 SWV 154. Where abstract purports and appears to contain all tion. Gerhardt \[\] 116, 70 A 173. Whether affirmative charge \[\] has not been pointed out, cannot be should have been given cannot be deter-presumed that omitted evidence was compe-mined where bill of exceptions does not tent and sufficient to support judgment.

Purry Inv. Co. v. Semonian \[\] 100 P 42.

not be reversed for error in directing ver-425.

### Order refusing to set aside dismissal

dict unless record affirmatively shows that of proceedings not reviewed where evidence it contains all the evidence upon which the upon which hearing was had is not pre-direction was given. Regan \[\] 114 SWV 919. Will not re-eourt in overvailing defendants' moves action of court in dismissing case of tion, made when evidence was all intro-his own motion unless examination of duced, to take case from jury, cannot be whole record fails to show any ground to considered when bill of exceptions neither support it. Loosev. Cooper \[\] 118 NWV 406.

Assignment complaining of action of Troy Laundry Machinery Co. \[\] 119 E 678. Where bill of exceptions does not and directing verdict held not open to con-junction with other record did not properly be presumed in support of court's action in any statement. Wagg.

For the purpose of this work, we have not been concerned with the use of the _exceptions_ that we have not been was not In record. Parker Land & Imp. Co. v. Ayers \[Tad. App.\] 87 NE 1062. Where record falls to show judgment, or anything concerning it, instructions as to measure of damages will not be reviewed. McKinnon Boller & Mach. Co. v. Central Michigan Land Co. \[Mich\] 16 Det. Leg. N. 17, 120 NW 26. Where instructions relative to particuolar branch of case are not complained, wlll be presumed that it was properly explained with sufficient instructions. McGourty v. De Marco, 200 Mass. 57, 85 NE 891. Bill of exceptions held insufficient to present question whether instructions were erroneous, where no facts set out therein from which it could be determined whether it was erroneous. Gerhardt v. Boettger, 75 N. J. Law, 916, 70 A 173. Though perusal of whole printed case should show negatively that there was failure to submit certain question to jury, argument that there was error in such failure will not be successful, since it will be presumed, in absence of instructions to contrary, that court submitted all disputed questions of fact. Chess v. Vockroth, 75 N. J. Law, 865, 70 A 73. Assignment not to be considered where neither petition nor brief of evidence points out in what respect instruction is erroneous. Columbia Amusement Co. v. Pine Beach Inv. Corp. \[Va.\] 63 SE 1002. Where counsel did not point out in what respect variance was material, and court could not discover that it was material, held that it could not be assumed that refusal of court to instruct in regard to it was error. McMuffee's Adm'x v. Boston & M. R. Co., 81 Vt. 53, 69 A 124. Where record falls to disclose any instructions written, numbered, and signed, by plaintiff, and requested to be given as required by statute, all instructions given must be taken to have been given by court on its own motion. Indianapolis \[Tad. App.\] 87 NE 658. Where charge did not authorize jury to consider any damages not proven, cannot presume that they did so in absence of anything in record showing that they might have. Missouri, K. & T. Co. v. Craig \[Tex. Civ. App.\] 114 SW 850. No presumption that instructions were harmful as inapplicable to evidence, when no controversy concerning proposition of law announced which was correct. Cincinnati, etc., R. Co. v. Cook \[Ind. App.\] 88 NE 76. Necessity of showing instructions refused or excepted to: Alleged errors in the giving or refusing of instructions will not be reviewed where the instructions given or refused are not properly made part of the record. Cox v. Cooley \[Ark.\] 114 SW 829: Bray Clothing Co. v. McKinney \[Ark.\] 118 SW 406; St. Louis, etc., R. Co. v. Raines \[Ark.\] 119 SW 865; Chicago Mill A Lumber Co. v. Cooper \[Ark.\] 119 SW 872; Big Kana- vha Leasing Co. v. Jones \[Colo.\] 102 P 171: Jarrett v. McIntyre, 134 Ill. App.\] 851: McGourty v. Morgan \[Tex. Civ. Clure v. Putnam, 142 Ill. App.\] 497; Latham v. Lindsay \[Ky.\] 113 SW 878; Gambrell \[Ky.\] 113 SW 885; Rogers v. Zumbell \[Ky.\] 114 SW 823: Hubbard v. Allyn, 200 Mass. 166, 88 NE 356; Tennine v. Chase, 201 Mass. 497, 87 NE 901; Wellman v. Metropolitan St. R. Co. \[Moh.\] 118 SW 311. Davis v. Stephenson, 149 N. C. 113, 62 SE 900; Hill v. Lane, 149 N. C. 267, 62 SE 1074; Ford v. Stroud, 150 N. C. 362, 64 SE 1; Brown v. Southern R. Carolina Divi- bryi 13 Cur. Law. APPEAL AND REVIEW $ 9D.

judgment and relief granted,24 costs,27 and the granting or denial of a new trial.28

that plaintiff did not practice dures not

open to consideration, where record con-

tained no finding of subordinate facts and

no statement of legal principles applied in

was based upon findings of fact made sole

reaching its conclusion. Atwood v. Garrett \[Conn.\] T11 A 869. Where findings sua-

132 Apr. Dlv. 603, 116 NYS 1092. Presumed

tain judgment, in absence of statement of

that jury assessed damage according to

facts or bill of exceptions, there is no quese-

case proved and instructions given. St.

tion for review. Crowe & Co. v. Brandt, 50

Louis, etc., R. Co. v. Hutson \[Tex. Civ. App.\]

Wash. 499, 97 P 503. In absence of evidence

cannot be determined whether court erred

appeal in proceedings to assess damages

in refusing to amend findings. Peterson v.

sulting from location of railroad over land

Lundquist, 106 Minn. 339, 119 NNV 50.

that plaintiff had never acquired title to

Where transcript on appeal by garnishee

one of two tracts described in his notices

did not contain record in main action on

will be presumed that jury took into

which garishment was based, held that

count only appropriation of right of way

conclusion of court as to validity of pro-

through other one. Hall v. Wabash R. Co.

ceedings therein was not reviewable.

\[How1\] 115 NVP 921. In section for value of

Caldwell Banking & Trust Co. v. Porter

gravel taken from plaintiff's hand

held that,

(Or.) 97 P 541, former opinion \[Or.\] 95 P. 1.

If deed under which plaintiff claimed title

Finding in proceedings for collection of

was defective in form, would be presumed

lateral inheritance tax that amount

In support of verdict in his favor that jury

reoted by testator to be expended for total

found that he had title by adverse posses-

was reasonable held not subject to review

sion. Indianapolis Coal Trac. Co. v. Dalton

where record did not show exact amount

\[Ind. App.\] 87 NFS 552. Presumed that

reserved for that purpose. Morrow v. Du-

dict was rendered in accordance with

rant \[Iowa\] 118 NVP 81. Presumed that

retations given by presiding justices. Mans.

trial court found facts sufficient to sustain

field v. Tenney, 202 Mass. 312, 88 NE 892.

its general finding. Halboulver v. Cuenin

\[Colo.\] 101 P 763. Under Sayles' Ann. Civ.

fendant sum claimed by him by way of

St. 1897, art. 1831, fact necessary to

set-off, held that it must be assumed that

port judgment but not embraced in special

they did so. Jordan v. Walker, 154 Mich.

Issues submitted and verdict are presumed

394, 15 Def. Leg. N. 717, 117 NWP 942. Must

to have been found by court. Hall & Co.

be assumed that jury understood instrucu-

v. Monthland Immigration Ass'(Tex. Civ.

tions. Watts v. Murphy \[Cal. App.\]. 99 P

App.\] 116 SWV 831. No presumption that

1104. Will not be presumed that jury dis-

findings were made in term when so dated,

regarded instruction as to a measure of

it actually appearing that they were made

damages and allowed interest. Collins v.

in vacation. Wilson v. Cellin \[Colo.\] 102

P 21. Land was decided to defendant sub-

det to life estate in grantors. In suit by

regarded instruction as to a measure of

one of said grantees, after death of other,

damages on which there was undisputed

against defendant to recover rents, defend-

evidence, and followed one on which there

and pleaded certain advances to one of said

was no evidence. Jonesenvo, etc., R. Co. v.

as off-set. Court Court erdurnter to

Cable \[Ark.\] 117 SW 560. Where jury re-

evidence, and found for defendant. Held

turned verdict in accordance with charge,

that it would be presumed that court found

will be presumed that it was fliod as

for defendant on his off-set rather than on

quired by law. Carter v. Kleran \[Tex. Civ.

theory that surviving grantor had no

exp.\] 115 SW 272. Exceptions to verdict

estate in premises. Poteet v. Daniel, 138

as contrary to law not considered where no

Mo. App. 679, 113 SWV 1139. There being

evidence in record and evidence not speci-

nothing in the abstract to overcome find-

fled as material to understanding of errors

ings of master in changery, they will be

complained of. Ford v. Commercial Indusus-

sustained. Edwards v. Oil City Bldg. &

trial Co. \[Ga.\] 63 SE 1120. Whether assess-

Sav. Ass'n, 137 Ill. App. 522. Presumed that

count took into consideration absence of showing one way or the other - his house and regularly attended by physl-in record. Berry v. St. Louis, etc., R. Co., cian, which was condition precedent to liability. Id. Judgment for defendants should in contempt proceedings abstract of record did not contain pleadings in action in which interposed there was any one which was valid, or if there be any other sufficient reason under law for sustaining judgment.

that it could not be determined what the allegations of pleadings were or what is-

Where facts were found from which court might have legitimately inferred wavier,

Judgment was within issues. Smith v. held that would be presumed in support of

Schlink \[CoLo.\] 99 P 566. Where merely pleadings and judgment presented for re-

81 Vt. 379, 70 A 593. In action on fire in-

vive, every inference in favor of judgg-

surance policy where competent under pe-

ment will be indugged in. Montague v.

tition to show wavier of notice of loss, it

Kolkmeyer & Co. \[Mo. App.\] 120 SW 687.

would be presumed in support of judgment could be rendered on find-

that wavier was proved. Wicecarver v.

ings, where such findings are unconfor-

Mercantile Town Mut. Ins. Co. \[Mo. App.\].

verted and there is no statement of facts in record. Judgment will be affirmed. Mc

not support judgment of court of claims

Lean v. Gulf & I. R. Co. \[Tex. Civ. App.\] 118 SWP 678. In absence of statement of

but there was evidence which would have

facts, every presumption must be indulged

In favor of correctness of orders and judges

was which would be sufficient to do so,

ment complained of, though skeleton rec-

ord presents features indicating gross in-

assume such findings in support of judgg-

justice at trial. Dilley v. Jasper Lumber

On. \[Tex. Civ. App.\] 114 SWP 878. Recital

NE 668. Where in case tried without jury

in bill of exceptions that final judgment

court does not file conclusions of fact, will

was rendered and that plaintiff excepted

be assumed that it found every fact neces-

thereto pendente lic is not sufficient to

present question whether court erred in

established by evidence, if there is any test-

granting said judgment, but does present

timony in record tending to sustain such

question whether court erred in refusing to

facts. Kansas City So. R. Co. v. Albers

allow amendment to petition, provided

Commission Co. \[Kan.\] 99 P 819. Where

same is properly assigned. Schneffer v.

decree ordering partition and appointing

Central of Georgia R. Co. \[Ga. App.\] 64 SWP 1107. On appeal from order reviving domi-

can be made, they shall report fact to

nant judgment where neither transcript nor

bill of exceptions contain pleadings in case

land was capable of partition, and that

in which such judgment was rendered, will

be presumed that they were sufficient to

sustain said judgment, and defense of co-

verture first interposed in rev revived proceedings

Though. in trespass to try title there was

ings cannot be considered. American

In finding that grantor in deed intended to

Frehold Land Mortgage Co. v. Smith

\[Nc.\] 120 NNF 113. Presented in support

that it would be presumed in support of

of judgment awarding interest under contract

uncertain in its terms in that regard

the uncertainty was removed by evidence

where evidence was not brought up. Vance

Tedwood Lumber Co. v. Durbly, 8 Cal. App.

764, 97 P 702. Decree on oral evidence, not

of record, is presumed correct, no error

appearing on face of record. Barringer v.

Bradener \[Ark.\] 118 SWP 1018. Anfranance

duty of appellate court where trial court

filed no conclusions and judgment could be

reordered on any theory of evidence. Guerra v. Rodriguez \[Tex. Civ. App.\] 120 SWP 583:

Appel v. Childress \[Tex. Civ. App.\] 116 SWP 119. Spalling v. Aldridge \[Tex. Civ. App.\] 110 SWP 640. There being no conclusions of

the judge, all issues upon which there was

evidence must be taken as resolved in fa-

vor of the judgment. Webb County v.

Hasle \[Tex. Civ. App.\] 113 SWP 188. On ap-

peal from judgment for plaintiff in action

on policy of health insurance providing for

indemnity only in ease of illness beginning

after policy had been in force for 60 days,

presumed that court found that illness

commenced after such period, where was

evidence authorizing such a finding, and no

conclusions. General Acc. Ins. Co. v. Hayes

(Tex. Civ. App.\] 113 SWP 590. Also pre-

sumed, under similar circumstances, that

eourt found that assured was confined to

his house and regularly attended by physl-

in record. Berry v. St. Louis, etc., R. Co., cian, which was condition precedent to liability. Id. Judgment for defendants should

in contempt proceedings abstract of record

did not contain pleadings in action in which

interposed there was any one which was

judgment which defendants were charged

valid, or if there be any other sufficient reason under law

son under law for sustaining judgment.

that it could not be determined what the allegations * 13 Cur. Law. **APPEL AND REVIEW $ 9D.**

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## Appendix A Appendix

### A Appendix

13 Cur. Law. APPEAL AND REVIEW SS 10A. 211

"The record imports absolute verity \[30\] providing it is properly certified," and cannot be impeached by affidavits \[32\] nor collaterally attacked by motion to dismiss the appeal. In case of conflict, that part of the record whose appropriate function is to present the particular matter prevails."

SS 10. _Transmission of record to reviewing courts. A. Form and contents of transcript or return._"See 11 C. L. 155.\_The transcript includes both the record proper and the secondary record, and, generally, all of such records should be included," excluding extraneous and needless matter." In some states the parties

30. See, also, ante, SS 9D. Columbia Brew-

der it was made at chambers after close or Co. v. Forgey \[Mo. App.\], 120 SV6 62k. Where record shows that party was rerepresented or varied by recelists in bill of sented by attorney on whom service or notice of appeal was made or who accepted

Kennedy \[Ark.\] 111 SVV 112E. Certificate service, service must be held sufficient, and record cannot be contradicted. Walker

truthfulness of previous statements in case, Bros. v. Skliris, 34 Utah, 353, 98 P 114. Record certified by clerk is conclusive except as errors are corrected by him on request of supreme court. Warnock Ins. Agency v. Peterson Real Estate Inv. Co. \[Utah\] 101 P 699. Court is bound by recel-

ard, and if it does not speak truth counsel

should have it corrected. Langhorst v.

Hogers \[Ark.\] 114 SVW 915. Record as it

thicate of clerk to transcript and the decree

stans is binding, and must govern rights

in this regard, latter controls. Turplin v.

of parties, remedy in case it is not in accordance with trust being elsewhere than

judgment differed in its recelists from recelists in case made, which was certified by

by appeal. Cronin v. Berry, 200 Mass. 563,

86 NE 958. Record on appeal from police

trial judge for purpose of appeal, and court

court to superior court construct. Id. Is

net impeacable in apellate court by any

evidence outside record itself. Le Clair v.

that record of judgment would conclusively

Hawley \[Wy.\] 98 P 120. Cannot be con-

tradicted by patrol under guise of correct-

ing it. Morgantown Mig. Co. v. Hicks

\[Ind App.\] 86 NE 856. May not be disputed

by oral statements of counsel. Krug v.

\[tween recelists in bill of exceptions and

Peale, 35 Pa. Super. Ct. 1. Will not be falsified on unsupported statement in lv.

latter controls. Perry v. Dozier \[Ala.\] 49 S

Putnam v. Morgan \[Fla.\] 48 S 629. Where

99. Appellate court must look to order of

parties do not agree that point relied on

trial court as to time permitted for filing

was called to attention of trial court,

amendments rather than to clerk's certification. United States v. Lerchur-

ger \[C. C. A.\] 160 F 651. In testing rules

all. App. 151. On a variance between agreed

ings on admission of evidence, certificate

of court that record contains all evidence

necessary to understanding of exceptions

is conclusive. Hoskins v. Scott \[Or.\] 98 P

111k. Rectial by judge in body of bill of

executions to effect that judgment was by

consent held conclusive necessitating an

affirmance. Raulerson v. Harvey, 130 Ga.

873, 62 SB 19.

31. Certification by court that instruction

was duly excepted to Is conclusive. Allen

v. Stanford Box & Lumber Co. \[Or.\] 96 P

1109.

0001. Columbia Heights Reality Co. v. Mac-

Farland, 31 App. D. C. 112. Affidavits will

not be received either to contradict or support record. Meredith v. Aurora, E. & C. R.

Co., 142 Ill. App. 475.

33. Allegation of petition held to control

merce recital of record as to exhibit. Pease

v. Globe Reality Co. \[Iowa\] 119 NVV 975. Order making record which is not correct

upon its face will be reversed. Hattendorf

v. New York City R. Co., 130 App. Div. 488,

114 NYS 1118. Record made up by resetled

order incorrectly stating that motion was made and entered at trial term when in

the event is not in accordance with the previous statement.

115 NVE 490. Transcript must show all evl-

hence, and if there is conflict between cer-

Hogers \[Ark.\] 114 SVW 915. Record as it

that entity is sole expositor of rulings on

\[Ind App.\] 86 NE 856. May not be disputed

by oral statements of counsel. Krug v.

\[tween recelists in bill of exceptions and

Peale, 35 Pa. Super. Ct. 1. Will not be falsified on unsupported statement in lv.

latter controls. Perry v. Dozier \[Ala.\] 49 S

99. Appellate court must look to order of

parties do not agree that point relied on

trial court as to time
indicate by praecipe or otherwise what shall be included." Transcripts should be made up in strict accordance with the rules of the appellate court and the statute."88 In the absence of a statutory provision to the contrary,"88 copies rather than

ing transcript of full copy of proceedings \[ intervenors dismissed, it was not necessary and art. 1413, as to omissions, clerk must

for review of such ruling that transcript include all proceedings unless parties agree

contain plea of water company. Hartford to omission. Baum v. McAfee \[Tex. Civ.

Fire Ins. Co. v. Houston \[Tex.\] 116 SW 36. App.\] 117 SW 883. Clerk powerless to determine what transcript should contain. Id.

Fruit by being appended there together

Transcript is sufficient if its contents show

Jurisdiction and so much of record as is

coples when no action pertaining to such

necessary for consideration of questions

rules was ever taken. Steele v. Wynn, 139

presented for determination. Transcript

held sufficient. Kaw Valley Drainage Dist.

87. Acts 1903, p. 340, c. 193, $ 7 (Burns'

v. Union Pac. R. Co. \[C. C. A.\] 163 F 885.

Ann. St. 1908, $ 667), as to indicating por-

Under Fev. St. 1889, $ 813 (Ann. St. 1906, p. 783), short transcript is only required

pracely, did not repeal $ 690, requiring

to contain copy of judgment and the order

clerk upon appellant's request to transmit

granting the appeal. State v. Broadadus, 216

transcript of record to clerk of supreme

Mo. 336, 115 SW 1018. Filing in appellate

court of short transcript containing statu-

writing. Cleveland, etc., R. Co. v. Morrey

tory essentials confers jurisdiction on that

(Ind.) 88 NE 932. Pracape held to have

court, provided judgment shows on its face

in effect required clerk to make complete

that it is one of which such court has ju-

transcript of all papers and proceedings in

risdiction, and provided order granting ap

case after specified date, so that transcript

peal shows on its face that trial court had

made out in obedience thereto was suff-

Jurisdiction to make it. Id. In case such

cient to authorize consideration of alleged

facts do not appear on face of judgment

error in overvailing demurrier, and in overv

and order as shown by short transcript,

ruiling motion for new trial, which motion

they may be supplied by the abstract. Id.

I. made part of record by statute. Chicago,

Under Court & Practice Act 1905, $ 490, it

is trial court's duty to determine how much

Since, in absence of praecipe directing clerk

of transcript is to be filed, and either party

aggraveed by such allowance may bring

to certify to certain portions of record, it

question before supreme court by petition

all the proceedings, which he may do upon

under $ 494, but not by motion. Smith v.

the oral or written request of the party,

Hurley \[R. I.\] 72 A 705. Clerk of superior

where transcript comes to apellate court

ourt in sending transcript to supreme

count should be guided by order of superior

judge and should send only papers directed.

Clerk v. Sacco-Pettee Mach., 150 N. C. 88, 63

Gas Co., 42 Ind. App. 614, $ 8NE 495. Cerk

SE 163. Under Wilson's Rev. & Ann. St.

citate of clerk affirmatively showing that

$ 4738, in actions instituted by petition in

record contains transcript of all of proceed-

error, plaintiff in error filed must file origin-

ings below is sufficient without pracipe,

nal case made in court below or transcript

though state requires praecipe to be

of record of that court. King v. Horse

Chelf Eagle \[Ok1\] 101 P 1135. Statute

condition. Cleveland, etc., R. Co. v. Morr-

mandatory. Id. Inasmuch as bill of expe-

tions is original paper in case and part of

granded by lower court and appellant de-

record, court will order that it be returned

sires to bring up partial record only, must

to the files, upon being informed that it has

been taken away with intention of

-drawing it permanently, notwithstanding

toped. Wilhoite v. Hulke \[Ky.\] 114 SW

it was ordered and paid for by party who

has withdrawn it. Yaekle v. Jaeger, 8 Ohio

N. P. (N. S.) 400. Photographs filed as ex

lhttps and intended to be used on appeal

should be filed with transcript of evidence

in circuit court and certified by clerk. Southern R. Co. v. Schmidt \[Ky.\] 118 SW

324. Photographs properly certified by

stenographer not to be stricken because not

certified by clerk of circuit court with

transcript in absence of suggestion that

they are not true exhibits. Id.

36. Transcript of appeal from probate

to circuit court need not show entire proceedings in estate, but only such part

thereof as is necessary to review of ruling complained of. Exmond, 142

III. App. 283. In suit by city against water company where the original files should be sent up.40 There should be separate transcripts on appeal from separate judgments in separate cases tried together, where there has been no consolidation; 41 but one transcript is ordinarily sufficient on a joint appeal 42 or in the case of original and cross appeals.43 Defects and omissions may be curable by amendment,44 or they may limit review,45 or be ground for dismissal.46

Statter not in conflict with Const. art. 4. Stoker \[Tex.\] 113 SW 3. Purported copy of $ 24, providing that every act shall embrace but one subject which shall be expressed in its title. Id. Title of cause shown in transcript sufficient where same as title in complaint. Armstrong v. Hender-son \[Idahol 102 P 861. Rulings on evidence not considered where transcript embodying bill of exceptions containing all the evidence was not indexed, and briefs did not indicate in what part of bill questions and rulings thereon could be found. Dauphiny v. Buhne, 153 Cal. 157, 96 P 880.

Sb. Under Laws 1907, p. 512, c. 24, $ 15, original statement of facts must be sent up with record, and copy cannot be considered in absence of showing that original has been waived by parties. Royal Ins. Co. v. Texas & G. R. Co. \[Tex.\]. 116 SWV 46; Hall v. First Nat. 117; Texas & P. R. Co. v. Stoker \[Tex.\] 118 SWV 47; Houston & T. C.

113 SWV 3; Redland Fruit Co. v. Sargent \[Tex. Civ. App.\] 113 SWV 330; Hall v. First Nat. Bank \[Tex. Civ. App.\] 115 SWV 293; Royal Ins. Co. v. Texas & G. R. Co. \[Tex. Civ. App.\] 115 SWV 123; Wallace v. Reed Bros. \[Tex. Civ. App.\] 117 SWV 1019; Whitlocked v. Burrell \[Tex. Civ. App.\] 118 SWV 155.

Satement stricken on motion, where it was copied and included in transcript instead of stating the evidence may be so incorporpr-original being filed in court of appeals.

Williams v. Robertson \[Tex. Civ. App.\] 115 SWV 87. Appellate court cannot assume that what purports to be statement of facts required by Burns' Ann. St. 1908, $ 687, held is true copy thereof. Whitfield v. Burrell \[Tex. Civ. App.\] 118 SWV 153. Statute held whether Id. $ 690, requiring pracepipe to be ogrgner as well as to those that have, or was still in force. Pee Moraquette R. Co.

Bean v. Bird \[Tex. Civ. App.\] 115 SWV 121; v. Strange \[Ind.\] 85 NE 1026. Fact that \[Tex. Civ. App.\] 117 SWV 177. Particularly in preparing transcript of record at-in view of Court Civ. App. Rule 46, and

District & County Court Rule 47, requiring agreements altering course of procedure, etc. to be made in presence of court or reduced to writing. Royal Ins. Co. v. Texas & G. R. Co. \[Tex. Civ. App.\] 115 SWV 123.

Rule applies on appeal from county court. St. Louis, etc., R. Co. v. Wall \[Tex.\] 118 SWV 131; Missouri, K. & T. R. Co. v. Rogers \[Tex. Civ. App.\] 116 SWV 624.

Contras: Rule held not to apply on appeal from county court. Butler v. Beard \[Tex. Civ. App.\] 116 SWV 115; Olivari v. Western Union Tel. Co. \[Tex. Civ. App.\] 111. App. 319.

116 SWV 322; Houston & T. C. R. Co. v. Rogers \[Tex. Civ. App.\] 117 SWV 103; Hous.-

\[Ala.\] 48 SS 368.

ton & T. C. R. Co. v. Rogers \[Tex. Civ. App.\] 118 SWV 393; Farris v. Gilder \[Tex. Civ. App.\] 119 SWV 645. Under said c. 24,

the original statement of facts is not record of trial court, but of appellate court, and

Shark \[Tex.\] 116 SWV 47; Houston & T. C.

providing for use of certified copies in all cases where origins would be evidence has no application thereto. Royal Ins. Co. v. Texas & G. R. Co. \[Tex. Civ. App.\] 115 SWV 332. Does not

considered, since only objections which ap-pro-original statement of facts must be considered cost of transcript and lack of authenticity of copy, which objections might be waived by him, and first of which, if urged, might be overcome by adjuding additional expense against apellant. Texas & P. R. Co. v. Stoker \[Tex.\] 113 SWV 3.

V. Stoker \[Tex.\] 118 SWV 3.

1053; Houston & T. C. R. Co. v. Rogers \[Tex. Civ. App.\] 116 SWV 332. Does not necessarily follow that copy could not be considered, since only objections which ap-pro-pellelelelelelelelelelelelelelelelelelelelelelele A party cannot object to a record which he himself files \[47\] nor can he complain when the opposite party furnishes the entire record for his use.\[48\] The sufficiency of the record as filed in the appellate court must be determined by that court.\[49\]

(SS 10) \_B. Authentication and certification.\[50\]\_See 11 C. L. 187.\_The approval of the secondary record \[51\] and the sufficiency of the certificate to show that all matter essential to review is included \[52\] are elsewhere treated. The transcript must be properly authenticated, either by the judge,\[53\] the clerk \[54\] of the trial court, showing its completeness and verity.\[55\] The certificate is conclusive as to the completeness of the transcript.\[56\] The clerk may add nothing to the transcript unless authorized.\[57\]

47, 48. Southern R. Co. v. Schmidt \[Ky.\] authenticated to be considered. Union Pac. F. Co. v. Colfax County \[Neb.\] 122 NW 29.

49. Teafford v. Lichtenstein, 129 App. Div. 35, 113 NYS 258.

01. Search Note: See Appeal and Error, Cent. Dig. # 2694-2720; Dec. Dig. # 612-618; % Cyc. 105-111; % A, & E. Enc. P. & P. 283.

01. See, ante, % 9C.

01. See, ante, % 9D.

01. Transcript held insuncient to present any question where evidence and exhibits were in no way certified as having been used in trial below and transcript contained no findings of fact. Quartz Gold Min. Co. v. Patterson \[Or.\] 96 P 551. Where transcript lacks certificate of allowance signed by trial justice required by Court and Prac. Act, 1905, % 492, record is incomplete and will be returned to trial court. Antoine v. Smith \[R. I.\] 72 A 1104. Entries cannot by agreement substitute their narrative of what orders, decrees, or judgments were rendered, and exceptions reserved thereto, for properly authenticated copy of those proceedings required by Rev. St. 1895, art. 1411, to be incorporated in transcript. Carl. Antonavirus filed, and clerk certified \_that ton v. Krueger \[Tex. Civ. App.\] 115 SW 615, rehearing \[Tex. Civ. App.\] 115 SW 1178.

Agreement held not entitled to considera- tion under Id. art 1414, concerning record in an agreed case, it not purporting to comply with provisions thereof. Carltion v. Krueger \[Tex. Civ. App.\] 115 SW 619. Where trial Judge certified portions of record long after appeal and after he had ceased to be member of trial court, appendate court may quash. Mitchell v. Edeburn, 37 Pa. Super. Ct. 223.

54. Authenticated copies of record within Municipal Court Act, # 22, are copies certified by clerk to be complete. Arthur v. Doyle, 141 Ill. App. 432. Clerk may refuse to certify case which fails to include facts of record materially effecting right to appeal and jurisdiction of court. People v. Culkin, 128 App. Div. 317, 112 NYS 702. Record of fact of execution of undertaking which limited right of appeal from order of filia- tion to that portion fixing the allowance for support of basatard. Id. Appeal not dismissed because of absence of clerk's certificate, where certificate was made but was inadvertently lost in numerous handings in office of clerk of supreme court or in office of one of attores. Farmer v. First Nat. Bank \[Ark.\] 114 SW 1182. Bill of exceptions of proceedings before a county board not identified either by certificate of county clerk or of clerk of district court as being part of record held not sufficiently (SS 10) \_C. Transmission, filing and printing.\_See 11 C. L. 180.--The transcript must be filed 50 and transmitted to the reviewing court 40 within the time prescribed by the rule or statute,61 or an extension thereof July granted 62 before the expira

## Appendix A Appendix and Review 10c

### new trial; filing of motion does not bring

facet is prima facle evidence of appellant's case within exception of rule 2, so as to extend time. In re Heywood's Estate, 154 Calam 312, 97 P 825. Pendency of attempt to obtain new trial held not to have excused delay in filing transcript, where counsel did not claim ignorance of decisions to effect that such motion would not lie in such case, or that failure was due to belief that pendency of motion extended time. Id. District of Columbia: Where transcript is not filed in appellate court for more than 40 days after appeal, and no extension of time applied for or obtained, appeal in an action at law will be dismissed. Rule 15. Oros V. Norman, 30 App. D. C. 574. Georgia: Return term for all ordinary bills of exceptions is first term of supreme court which begins after expiration of 30 days from fling of such bills. in clerk's office of court below. Earnhart V. Atlanta & W. P. R. Co. \[Ga.\] 65 SE 13S. Contention that first term did not arrive until papers were filed in office of clerk of supreme court held untenable. Earnhart V. Atlanta & W. P. R. Co. \[Ga.\] 65 SE 13S. Bill of exceptions was delivered to deputy clerk of lower court and by him marked filed on Sept. 2, 1908. It was not filed in office of clerk of supreme court until Feb. 20, 1909. after circuit to which case would have belonged had been concluded, and after docket for entire term had been closed, and it was then docketed with cases for next term. Held that, when case was reached at second term, it would be stricken from docket and dismissed on motion. Earnhart V. Atlanta & W. P. R. Co. \[Ga.\] 65 SE 13S. Facet that clerk certified that delay was due to fact that bill was mislaid by deputy, who was ill, and not on duty when it was filed, and of unsound mind, held not to prevent dismissal. Id. Idaho: Under rule 23 (96 P x), transcript must be served upon adverse party and filed in supreme court within 60 days after appeal is preceded. Armstrong v. Henderson \[Idaho\] 102 P 361. Under rule 25 (96 P x), time trial court holds bill of exceptions or statement prior to settlement and filing, and time attorney for respondent retains transcript before certifying, shall be excluded in determining time. Id.

**Illinois:** Where essentially faulty transcript is not corrected within time for filing, it will not be considered. Arthur V. Doyle, 141 ill. App. 432. Nothing appearing in restorations of lost transcript to show that it is restoration, it must be treated as original of date of its actual filing rather than date of lost original. Bromberg v. People, 136 Ill. App. 602. Inflamm: Filing of transcript within one year is essential to perfecting appeal under Burns' Ann. St. 1901, $ 645. Prouilllets Creek Coal Co. v. Pommato \[Ind. App.\] 85 NE 993. Transcript filed in time allowed by Burns' Ann. St. 1908, $ 2978. Jeffries v. Orndor \[Ind. App.\] 88 NE 958. Lowdinam:\*\* Transcript lined more than three days after return day, under Code Prac. art. 594, must be dismissed on motion. Bourdevaux v. Bourdevaux, 122 La. 432, 47 S 758. Maryland:\*\* Where transcript of record not transmitted within 3 months pursuant to Code Pub. Gen. Laws 1904, art. 5, $ 6, such that its prima facle evidence of appellant's default. Maryland, D. & V. R. Co. v. Hannond \[Md.\] 72 A 650. Failure held due to appellant's negligence, where he failed to ascertain when record was made out and pay for it in time for transmission. Id. Appeal must be dismissed where it does not appear, from afflawti and correspon-dence filed with court, that by proper diling correct record could not have been made up and transmitted in time. Extep v. Tuck, 109 Md, 528, 72 A 459. Afflawti held not to show diligence. Id. Stipulation as to what record should contain, not agreement for delay in transmission, since, if appellant could not agree within reasonable time, he could direct what papers be copied and what omitted. Id. Mountain: Appeal will be dismissed where transcript is not filed within time allowed by rules. Courtney v. Mc Grath \[Mont.\] 97 W. P. R. Co. \[Ga.\] 65 SE 13S. Contention that first term did not arrive until papers were filed in office of clerk of supreme court held untenable. Earnhart V. Atlanta & W. P. R. Co. \[Ga.\] 65 SE 13S. Bill of exceptions was delivered to deputy clerk of lower court and by him marked filed on Sept. 2, 1908. It was not filed in office of clerk of supreme court until Feb. 20, 1909. after circuit to which case would have belonged had been concluded, and after docket for entire term had been closed, and it was then docketed with cases for next term. Held that, when case was reached at second term, it would be stricken from docket and dismissed on motion. Earnhart V. Atlanta & W. P. R. Co. \[Ga.\] 65 SE 13S. Facet that clerk certified that delay was due to fact that bill was mislaid by deputy, who was ill, and not on duty when it was filed, and of unsound mind, held not to prevent dismissal. Id. Idaho: Under rule 23 (96 P x), transcript must be served upon adverse party and filed in supremetion of the statutory period.\[68\] Delay is sometimes excused and relief against the same granted if a valid excuse is shown,\[64\] nor will dismissal result from delay due to the fault of the adverse party or the clerk.\[65\] As a general rule the filing of the transcript by one of two appellants inures to the benefit of the other.\[69\] Rules of court generally require the transcript to be printed in a specified manner.\[67\]

(SS 10) \_D. Amendment and correction.\[66\]-\[68\]-\[69\]-\[

## Appendix A Appendix and Review 10d.

13 Cur. Law. will be returned for correction \[72\] or the amendment made below and brought up \[73\]

to overruiling same having been omitted, bold that motion of appellants to supply said omission would be granted, and said certificate filed in court of appeals would be considered. Flannigan v. Towle, & Cal. App. 229, $6 P 507. Under express provisions of Gen. St. 1902, $ 801, application to supreme court to rectify appeal will be dismissed unless party making it has, previous to the notice thereof to opposite party, requested court or judge allowing appeal to make correction applied for, and this though there is no answer to application as required by Praco Book, Dr. 270, $ 14. McWilliams v. McNamara \[Conn.\] J 0 A 1043. Where on appeal from court of limited jurisdiction transcript has been filed and bond approved, appeal may not be dismissed for any informality or insufflicency in transcript without giving appellant reasonable opportunity to cure defect. Elsmond v. Ensmond, 142 Ill. App. 233. Where record is complete, errors cannot be corrected by granting rule of diminution with directions to send up true record. Hansen v. De Vito \[N. J. Law? 70 A 668. Motion to amend notice of appeal from Surrogate Court by adding necessary parties is motion under Code Cryoc. Proc. 8 2573, authorizing appellate court to bring in necessary parties, rather than under $ 1303 authorizing amendment and correction. In or Mark's VIII, 128 App. 233. Doiv. 775, 113 NYS 104. Motion in court of civil appeals to bring up original statement of facts in lie of copy incorporated in transcript is motion to perfect record because of omission of original statement of facts under Act May 25, 1907 (Laws 1907, p. 509, c. 24). Wallace v. Reed Bros. \[Tex.\] 118 SW 35. Such a motion is in time when filed before submission of cscse. Id. Where statement of facts not subject to consideration for falling to show filing on trial court, appellant should be permitted to correct record and show filing. Belt v. Cetti \[Tex. City App.\] 118 SW 241. Where clerk fails to prepare transcript as required by rules, appellant may be permitted to file a proper transcript none pro tune. Nail. Virst Nat. Bank \[Tex. City. App.\] 118 SW 1048. Failure to fasten transcript at top and to incorporate assignments of error therein. Id. Upon suggestion of counsel supreme court may direct clerk of trial court to correct bill of exceptions. Warrock Ins. Agency v. Peterson Real Estate Inv. Co. \[Utah\] 101 P 699. Appellate court will allow such defects in transcript to be cured and omissions to be supplied as are not fatal to its own jurisdiction. Kaw Valley Drainage Dist. v. Union Pac. R. Co. \[C. C. A.\] 163 F 836.

71. Sufficiency of record silent as to cause of nonstuit could not be supplied on appeal to show that it was caused by ad-ourse rules. Long v. Holley \[Ala.\] 47 S 655. Court of appeals must accept record of trial court as made, and cannot correct it. Wheeks Hardware Co. v. Weeks, 135 Mo. App. 20, 115 SW 490. Review must be based upon rerecord as made below, and upon which order denyling motion for new trial was predicated, and supreme court cannot add anything to record made up by district on leave,74 or by certiorari.78 A trial court has jurisdiction to correct the record after appeal has been perfected.79 Unnecessary amendments,71 or amendments proposed too late,78 or which present matter not open to consideration in the appellate court,79 or which would not change the result,80 will not be allowed. It is within the discretion of the appellate court to allow supplemental bills of exception to be filed after expiration of time for filing original bill.81 Matters not properly

in the record may be stricken \[82\] by the appellate court.\[83\] Ordinarily, amendments are allowed only for the purpose of correcting mistakes or supplying omissions in the record as transmitted to the reviewing court, and not to supply new or extraneous matter.\[84\]

SS 11. _Practice and proceedings in appellate court before hearing. A. Joint and several appeals; consolidation, severance.\[85\]-See 11 C. L. 198--Parties having separate claims with no joint or common rights cannot prosecute a joint appeal.\[86\]_

(SS 11) \_B. Original and cross proceedings.\[87\]-See 11 C. L. 198--The cross assign-

SS2. Statement of facts stricken where \[made by mistake, Stephenson v. Austin, inferable from certificate that it did not 217 Mo. 355, 116 SWV 1090. contain all material facts adduced. Thomas 83. Appellate court is the judge of sum-v. Galveston Dry Goods Co. \[Tex. Civ. App.\] 119 SWV 115. Where no proper exceptions were taken to findings of fact and conclusions of law, and no error was 1023.

Deficated on exclusion of testimony, held that motion to strike statement of facts would be granted. Crowe & Co. v. Brandt, 50 Wash. 499, 97 P 603. Fact that giving of instructions was insubfficiently presented \[from record\] to a student in a record. Hatclins \[from record\], 119 SWV 115. Where no proper exceptions were taken to findings of fact and conclusions of law, and no error was 1023.

84. Before transcript may be amended by stipulation under rule 25, it must affirm-vould be granted. Crowe & Co. v. Brandt, 50 Wash. 499, 97 P 603. Fact that giving of instructions was insubfficiently presented \[from record\] to a student in a record. Hatclins \[from record\], 119 SWV 875. Doel Co., 119 III. App. 325. Document which is part of record below and which has been properly certified to supreme court as part of record on appeal, such as a bill of exceptions or statement on motion for new trial, may not be stricken out however defective it may be for any reason appearing on its face, but it must remain in the record, the effect to be given it being a matter for determination upon the hearing of cause on merits. Robinson v. Heleins \[from record\], 11 A 86. Lo. & R. Co. \[Mont.\] 99 P 837. Defendants' bill of exceptions in support of motion for new trial was prepared, in conformity to statutory requirements, as a bill of exceptions, and was entitled and served as such.

Was so designated in acknowledgement of service, and plaintiffs had amendments incorporated in it. Certificate of settlement designed it as "statement on motion for new trial." Held that though, since passage of Act Feb. 26, 1907, there was no provision authorizing statement of case to be used as basis of motion, defect was not such as to require bill to be stricken from the files. Id. Appellants' motion to strike from files appelee's amendment to appelant's abstract because containing matter not proper to be considered, overruled, part of amendments being entirely proper and necessary in correction of record, and un-necessary portion being too small to justify imposition of penalty. Balderstrom v. Cudahy Packing Co. \[Iowa\] 117 NWV 986. Though findings of fact could not be re-viewed because of insubfficient exceptions, held that statement of facts would not be restricted for all purposes, but would be retained for purpose of reviewing errors relating to manner of trial and introduction of testimony. Warehime v. Schweitzer, 51 Wash. 299, 98 P 747. Where bill of exceptions is too voluminous in setting out all evidence, it will not be stricken from files, but questions presented will not be examined in so far as dependent upon rulings on evidence. Oidland v. Oregon Coal & Nav. Co. \[Or.\] 102 P 596. Admission made or record could not be stricken on appeal as \[from record\] to a student in a record. Hatclins \[from record\], 119 SWV 115. Where no proper exceptions were taken to findings of fact and conclusions of law, and no error was 1023.

84. Before transcript may be amended by stipulation under rule 25, it must affirm-vould be granted. Crowe & Co. v. Brandt, 50 Wash. 499, 97 P 603. Fact that giving of instructions was insubfficiently presented \[from record\] to a student in a record.

13 Cur. Law. **APPEL AND REVIEW $ 11E1. 231**

ment of errors,**88** and the necessity of a cross appeal to entitle the appellee to raise specific objections,**89** are treated in other sections. A cross appeal may ordinarily be taken by one of several appellees against the others,**90** or against the appellant.**91** An appellee failing to take a cross appeal cannot thereafter maintain an independent appeal from the judgment.**92** The cross appeal must be timely.**93** (SS 11) _C. Amendment of parties_.**94** See 11 C. L. 198--Amendment and substitution may be allowed in case of the death of a party.**95** So, too, necessary parties who have been omitted may be brought in by way of amendment.**96** Mismomer may also be cured by amendment.**97** (SS 11) _D. Calendars, trial dockets, terms_.**98**--**See 11 C. L. 194--The necessity of docketing appeals in the appellate court has been treated in a previous section.**98** Provision is sometimes made for expediting certain classes of cases.**91** (SS 11) _E. Forming issues; pleading, assigning, and specifying error. 1. In general_.**92** See 11 C. L. 194--The assignment of errors is in effect a pleading tendering an issue of law.**93** Filing in the appellate**' or lower court\*\*' is generally re-

88 See post, $ 11E 3. **under Act March 3, 1895, c. 1479, $ 12, 33**

89. See post, $ 13E. **80** (Comp. St. Supp. 1907, p. 308) sub-

01. Cross petition in error may always be

blied by defendant in error against other

defendants in error. Kingshef County

Corn's v. Lemley \[OKH.\] 101 P. 109. **91**. Cross appeal can only be granted as

against the appellant who brings original

appeal to appellate court. Hessiev. Hessiev. Hessiev's AdmT (Ky.) 113 SV 861. Since parties not before appellate court are not af-

fected by cross appeal, and one desiring to

have judgment reviewed as against them

must take an original appeal, which he

may do notwithstanding pendency of ap-

peal between other parties. Id.

as party plaintr and dismissing wrt. Id.

B. Saince in applee seeking relief from

judgment can do so, under Kirby's Dig.

$ 125, only by cross appeal. Howell v.

Jackson \[Ark.\] 111 SVW 899. Decree, in sut

to restrain stopping of certain ditch and

construction of certain other ditches die-

solving temporary restraining order in so

far as it related to closing of ditch and

making it perpetual as to construction of

other ditches, held single one, one order

being dependent on other, so that, where,

on appeal by defendants from so much

thereor as injured them, plaintiffs took no

cross appeal, they could not subsequently

appeal from balance of decree. Id.

98. Cross appeal not filed until after sub-

mission of case not considered. Reid v.

72ao & M. V. R. Co. \[Mlgs.\] 47 $ 67. **69**.

94. Search Note: See, also, Appeal and Br

or, Cent. Dig. $ 1868-1876; Dec. Dig.

8 336; 2 Cyc. 784-789.

95. For effect of death of party before

appeal is perpected see ante, $ 3.4. For get

for of death after appeal is perpected see

so that only person outside small local

post, $ 11G, Abatement.

96. Motion under Code Civ. Proc. $ 2573,

authorizing appellate court to bring "In

necessary parties on appeal from surp-

Centre. Dig. $ 2968-2982, 2980-2984, 2999,

rogate, is premature until appeal is per-

3000, 301, 3039-3053, 3058-3064, 3084-3083;

fected by service on parties in surrogate

Dec. Dig. $ 718, 719, 722, 742-746 751-754;

proceedings. In re Marks VIII, 128 App.

2 Cyc. $98-985, 1003-1006, 1010; 2 A. & E.

Div. 775, 113 NYS 104. Prosecution and

200. Z. & P. 920.

amendment of writs of error from court of

3. North Mountain Water Supply Co. v.

appesis of Indian Territory to federal court

Trockell \[Pa.\] 73 A. 621; Lowenstein v.

was governed by rules and practice of cir-

Bache, 3T Pa. 899er. Ct. 426. Since assgment of errors upon the record stands as quired. Service on the opposite party is also sometimes provided for.\* In some states the assignment must be made on the record itself,7 or in appellant's brief.8 In Georgia errors may be assigned on exceptions pendente like either in the bill of exceptions * or in the appellate court at any time before the argument is begun. Errors not assigned will not ordinarily be considered 10 though the court may re-

pleadings In supreme court, It is necessary, and, if case is submitted for final decision without one, appeal will be dismissed. Vll-

abstract. City of Chamberlain v. Quarns-

lage of East Peoria v. Lake Erie & W. R. Co., 237 Ill. 98, 86 NE 634. Questions in-

volved, as determining jurisdiction, are determined by assignments of error. Lewis v. Lewis, 237 Ill. 416, 86 NE 635.

4. Flining within one year is essential to,

perfecting appeal under Burns' Ann. St.

1901, $ 645. Brouilletts Creek Coal Co. v.

Pomatch \[Ind. App.\] 85 NE 993. Where record fails to show fling, appeal will be dismissed. Lowenstein v. Bache, 37 Pa. Super. Ct. 426. Printing purported assignment in paper book does not cure defect. Id. Omission to file is not mere formal defect which appellate court is at liberty to disregard. Id.

5. Statute requiring fling with clerk of trial court before taking out transcript held mandatory. Newman v. Satterwhite \[Tex. Civ. App.\] 118 SW 1145.

1. Rules do not require transcript to show service of copy of assignment on defendant in error or counsel. Thomas v. Price \[Fla.\]

48 S 17.

7. Fact that duly authenticated bill of exceptions contains no assignment of errors is not conclusive that none were presented, though rule requires assignment of errors to be part of bill. Thomas v. Price \[Fla.\] 48 S 17. Since court may refuse to settle bill when no assignment of error is presented, it may be presumed in absence of contrary showing that assignment was

655; Foster v. Winstanley \[Mon.\] 102 P presented to judge with bill, especially where no exception to bill. Id. Failure to

Axeal v. Kraemer, 75 N. J. Law, 683, 70 A make assignment part of bill of exceptions not ground for striking. Id. Errors of law

116 NE7385: Noble State Bank v. Haskell

not appearing on judgment roll cannot be \[Cok\] 97 P 590; Canole v. Allen, 222 Pa. 156, revieed without specifications duly settled

70 A 1053; Nelson v. Brown \[Tex. Civ. App.\]

in statement of the case. McLaughlin v.

111 SWV 416; Young v. State Bank \[Tex. Thompson \[N. D.\] 120 NWV 554. Paper pur-

1120 NWV 554. Paper pur-

1120 NWV 476; Ft. Worth L. & P.

porting to contain specifications of error

118 SWV 831; left with trial judge after settlement of

82 Spedro, etc., R. Co. v. Sall Lake City

statement of the case does not become part

831 of Education \[Utah\] 95 P 263; Green

of such statement unless so ordered by the

119 S 598, 53 Law. Ed.

judge, and must be disregarded. Id.

Where no specification of errors therein.

120 Waters-Pierce Oil Co. v. Texas, 212

Statement of the case will be disregarded.

121 Waters-Pierce Oil Co. v. Texas, 212

128 Waters-Pierce Oil Co.

view them in its discretion,11 but jurisdictional defects,12 and fundamental errors apparent of record,13 and, in some jurisdictions, obvious errors,14 may be reviewed though not assigned. As a general rule, where a motion for a new trial is necessary to preserve errors at the trial, the denial of such motion must also be assigned.15 Assignments must name all the parties16 and must be directed against the persons in whose favor the alleged erroneous rulings were made.17 An unnecessarily large number of errors should not be assigned.18 The right to amend assignments depends on the statutes and rules of court in the various jurisdictions.19

(SS 11E) 2. \_Proper parties to assign error.20 See 11 C. L. 190.\_Only parties to the appeal21 who are aggrieved22 can assign error.

verdict. Walker v. Texas & N. O. R. Co. Life Ins. Co. v. Rankin \[C. C. A.\] 162 F \[Tex. Civ. App.\] 112 SWV 480. Finding of commissioner. Young v. Young \[Va.\] 68 SE well Gold Min. Co. v. Cheney \[C. C. A.\] 162 748. That verdict is contrary to an argument weight of evidence. Drake Stand- and Mach. Works v. Horsman, 135 III. Allf in error rendering judgment against him, absence of evidence to support find-new trial for newly-discovered evidence. Crocker v. Steidl \[Neb.\] 118 NVV 1083. Jn-FIGation of special term to grant new trial on record presented are sufficiency of plead-v. Long Island R. Co., 130 App. Div. 828, 115 NTS 478. Fulling on arrest of judgment of findings to support judgment and con-Hausler v. Com. Elec. Co., 240 III. 201, 88 NE 561.

Rulings on plendings: Overruling denurrer. Tennessee Coal, Iron & R. Co. v. Burgess \[Ala.\] 47 S 1029; Birmingham R. L. & P. Co. v. Hinton \[Ala.\] 48 S 546. Carrying demurrer back to complaint and sustaining it. Neyens v. Flesher \[Ind.\] 88 NE 626. Allowance of amendment. Southern Mutt. Life Ins. Assn't. V. Durdin \[Ga.\] 84 SE 264. Varilance. City of Chicago v. Wieland, 139 III. App. 197.

Findings and judgment: Decree must be assumed to be correct when not assigned as error. In re Johnston's Estate, 222 Pa. 514, 71 A. 1053. No question presented by exceptions to conclusions of law where no independent assignment of error questioning.

Ing said conclusions or either of them.

Celtic Savings & Loan Asa"n No. 3 v. Curtis \[Ind. App.\] 87 NE 660. In personal injury action where there was no assignment of error attacking verdict or judgment on ground that plaintiff was not injured, as claimed by defendants' negligence, presumed that she was entitled to recover. Dallas Consol. Elec. St. R. Co. v. Motwiller \[Tex. Civ. App.\] 112 SWV 794.

H.M. Monroe Nat. Bank v. Catlin \[Conn.\] 73 A 8. Where departure from established rules and procedure manifests clear disre-gard of public policy, or is in violation of express statutory provisions, error will be noticed. though not assigned. Permitting husband to testify against wife. Canole v. Allen, 222 Pa. 156, 70 A 1053.

12. Harper v. Harper, 148 N. C. 453, 62 SE 553.

01. Ft. Worth L. & P. Co. v. Moore \[Tex. Civ. App.\] 118 SWV 831: Defect of parties below. Russell v. Bell \[Ala.\] 49 S 314. Shuffiency of petition to state cause of section. Steger Piano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 118 SWV 337; Montgomery v. Peach River Lumber Co. \[Tex. Civ. App.\] 117 SWV 1061. Appeal is itself sufficient assignment of error to judgment. Ullery v. Guthre, 148 N. C. 417, 62 SE 552.

01. Admission of evidence. New York \[Tex. Civ. App.\] 14. Admission of evidence. New York \[Tex. Civ. App.\] 118 SWV 831: Content of evidence. New York \[Tex. Civ. App.\] 119 SWV 837; Montgomery v. Peach River Lumber Co. \[Tex. Civ. App.\] 117 SWV 1061. Appeal is itself sufficient assignment of error to judgment. Ullery v. Guthre, 148 N. C. 417, 62 SE 552.

01. Admission of evidence. New York \[Tex. Civ. App.\] 119 SWV 831: Defect of parties below. Russell v. Bell \[Ala.\] 49 S 314. Shuffiency of petition to state cause of section. Steger Piano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 118 SWV 337; Montgomery v. Peach River Lumber Co. \[Tex. Civ. App.\] 117 SWV 1061. Appeal is itself sufficient assignment of error to judgment. Ullery v. Guthre, 148 N. C. 417, 62 SE 552.

(SS 11E) 3. \_Cross errors.28_See 11 C. L. 117_The appellee may take advantage of any error to support the judgment,24 but as a general rule the appellee cannot be heard as to errors which he does not raise by cross assignment.25 Cross assignments will not be considered unless germane to the questions raised by the appel.26 Cross assignments must be filed within the time prescribed,27 and are

Footnote 28: The _HST_ is a _HST_.

Cent. Dig. **SS 2983-2989**, 2560-3613; Dec. \[not being essential, under Code, # 4107, to\] Dig. **SS 720**, **721**, \*\*877-884; 2 Cyc. 1003; 3 Id. \[review of a judgment or order, when made\] 233-256.

21. Where error was assigned by certain bank and W. as trustee for said bank, held that it would be assumed that it was in his trust rather than his individual capacity that latter described himself as appellent, proceedings showing that he was actively prosecuting in trust capacity. First Nat. Bank v. Farmers' & Merchants' Nat. Bank \[In.\] 86 NE 417.

01. Party cannot assign errors with reference to other parties not complaining thereof. Kennard v. Curran, 141 Ill. App. 621. Appellent from denial of petition in intervention cannot except as to judgment rendered against defendants v. Summerior, 5 Ga. App. 619, 63 SE 667. Neither of two defendants in whose favor separate judgments were rendered held entitled to assign errors on appeal by their unsuccessful co-defendant from judgment against him, they not being necessary or proper parties to the appeal, and hence having been improperly joined. Town of Windfall City v. First Nat. Bank \[Ind.\] 87 NE 884. Drange comments in other mid-cultural capacity cannot assign as error that district was not properly served with process. People v. O'Connor, 239 Ill. 272, 87 NE 1016. Defendant held not entitled to predicate error on exception to refusal of instructions asked by plaintiff. Dawson v. Ash Grove White Lime Ass'n, 134 Mo. App. 220, 113 SW 718. In trespass to try title where appellent as warrantor impleaded, he was entitled to defend title and assign error to exclusion of deed in plaintiffs chain of title. Cleveland v. Shaw lTex. Civ. App. 119 SW 883. Where receiver in bankruptcy showed no reason why he should have been allowed to intervene in proceedings in state court for appointment of receiver for partnership, held that he could not complain of supposed errors as to one of the partners. Southwell v. Church \[Tex. Civ. App.\] 111 SW 968.

01. Search Note: See Appeal and Error, Cent. Dig. **SS 3053-3057**; Dec. Dig. **SS 747**; 23.

01. Respondent may have benefit of his exceptions to rulings in support of a judg-ment which would otherwise yield to appellant's exceptions, and may also take advantage of any fatal defect in plaintiff's case not required to be brought to trial court's attention for ruling and exception in order to save point for ruling on appeal. Fleming v. Northern Tissue Paper Mill, 135 WIs. 157, 114 NPV 841. Respondent is not however, entitled to benefit of exceptions taken below, as on appeal by him, for purposes of a new trial as a matter of right, nor to consideration of motion made but not passed on below. Id. Findings of fact sometimes required to be served on all parties affected thereby. \[28\] In some states cross assignments may be incorporated in the brief under specified conditions. \[29\]

(SS 11E) 4. _Specifications and averments._\[30\] See 11 C. L. 197.-Assignments of error must be definite and specific. \[31\] Applications of this rule to assignments re-

him with which none of other defendants where they were not copied in record and were concerned, and hence cross errors complaining of judgment in favor of other Calum rule 101. City of San Antonio v. defendants would not be considered. Walker v. Montgomery, 236 11. 244, 86 NB 240. One cannot appeal by assigning cross errors in expected when not affected by mat-

\[30\]. Cross assignments set out in brief not appeal taken by party not affected by mat-

\[31\]. Anyon or election from, and supersedeas to decree, partial appeal only is allowed involving certain sums to

\[32\]. 115 SW 645.

be paid plaintiff, and court erroneously

permits retention of portion of game fund,

\[33\]. 114 SW 2997-3038, 3058-2064, 3074-

such error cannot be corrected on cross assignment of error by plaintiff claiming

\[34\]. 111 SW 295:

\[35\]. 115 SW 455.

\[36\]. 116 SW 455.

\[37\]. 117 SW 125:

## Appendix A Appendix

### 13.4. The 134-magic (134-magic)

The 134-magic (134-magic) is a 134-magic (134-magic).

- \[13\] Cur. Law. APPEAL AND REVIEW SS 11E4.
- \[14\] sufficiency of the evidence, \[85\] orders, \[86\] verdict, \[37\] findings, \[88\] judgments, \[89\] and rulings
- \[15\] be set forth. Mitchell v. Edeburn, 37 Pa. \[16\] that court erred in refusing charge asked
- \[17\] Super. Ct. 223. \[18\] Assignments held suffleent. Pelham Mfg. \[19\] not submitting issue in some form. Clevergment "for errors in charge," where jury
- \[20\] instructed to find for plaintiff upon whole
- \[21\] evidence. Woodridge v. Brown, 149 N. C. \[22\]; \[23\]; \[24\]; \[25\]; \[26\]; \[27\]; \[28\]; \[29\]; \[30\]; \[31\]; \[32\]; \[33\]; \[34\]; \[35\]; \[36\]; \[37\]; \[38\]; \[39\]; \[40\]; \[41\]; \[42\]; \[43\]; \[44\]; \[45\]; \[46\]; \[47\]; \[48\]; \[49\]; \[50\]; \[51\]; \[52\]; \[53\]; \[54\]; \[55\]; \[56\]; \[57\]; \[58\]; \[59\]; \[60\]; \[61\]; \[62\]; \[63\]; \[64\]; \[65\]; \[66\]; \[67\]; \[68\]; \[69\]; \[70\]; \[71\]; \[72\]; \[73\]; \[74\]; \[75\]; \[76\]; \[77\]; \[78\]; \[79\]; \[80\]; \[81\]; \[82\]; \[83\]; \[84\]; \[85\]; \[86\]; \[87\]; \[88\]; \[89\]; \[90\]; \[91\]; \[92\]; \[93\]; \[94\]; \[95\]; \[96\]; \[97\]; \[98\]; \[99\]; \[99\]; \[90\]; \[91\]; \[93\]; \[94\]; \[95\]; \[96\]; \[97\]; \[98\]; \[99\]; \[99\]; \[99\]; \[90\]; \[91\]; \[92\]; \[93\]; \[94\]; \[95\]; \[96\]; \[97\]; \[98\]; \[99\]; \[99\]; \[99\]; \[99\]; \[90\]; \[91\]; \[92\]; \[94\]; \[95\]; \[96\]; \[97\]; \[98\]; on motions for new trial,\[40\] will be found in the notes. The assignment should be accurate.\[41\] Distinct errors must not be grouped in one assignment.\[42\] A joint assignment by several parties must be good as to all who unite in it,\[43\] and an assign-

reviewable in supreme court under errors\[tern Steel Car & Foundry Co. v. Cunningham-assigned in appellate court is properly raised. Van Cleef v. Chicago, 240 Ill. 318, 88 NB &15.

Assignments held Insufficient: General assignment to entire judgment. Taylor v. Wright \[Ga.\] 64 SB 656. That court erred in rendering judgment. Theobaloid v. Clapp \[Ind. App.\] 87 NE 100. Exception to decision of court in giving decisions in favor of petitioner and against respondent, and grant-ing prayer of said petition. Fales v. Fales \[R. L\] 70 A 986. That court erred in concluding under facts found that defendant was guilty of negligence and that plaintiff was not guilty of contributory negligence, and in entering judgment for plaintiff, held to present more than one distinct proposition and not to separately present any ground of error under either of them. Pecos & N. T. R. Co. v. Ball (Tex. Civ. App.) 114 SW 403. Assignment on appeal from grant of preliminary injunction must set out degree appealed from, and is insufficient when merely alleging that court erred in granting preliminary injunction because mandatory. North Mountain Water Supply Co. v. Troxell \[Pa.\] 72 A 621.

40. Assignment to overviving motion because verdict is contrary to law and evidence too general. Hicks v. Stewart \[Tex. Civ. App.\] 118 SW 206. Assignment that court erred in overviving motion without specifying which of several such motions was meant held to properly call in question ruling on motion for new trial of that trial resulting in judgment appelled from. Bivens v. Henderson, 42 Ind. App. 562, 86 NE 426. Assignment that court erred in overviving defendants' motion "on the grounds and for the reasons therein stated," held insufficient under rule 11, requiring each error to be particularly specified. Alexander v. Wellington \[Co.\] 98 P 631. Assignment that court erred in overviving motion for reasons assigned therein held too general, where motion was based on several grounds. Walker v. Texas & N. O. R. Co. (Tex. Civ. App.) 112 SW 430. Assignment that court erred In denying motion "upon several grounds alleged in the notice thereof" held insufficient to present question that damage awarded was excessive which was one of grounds for motion. Ellering v. Minneapolis, etc., R. Co. \[Minn.\] 118 NW 867. Assignment to overviving motion brings up every exception saved by complaining party during progress of trial. Chicago, etc., R. Co. v. Davis \[OkL\] 10 P 1118. Assigning overviling of motion held to present all questions properly assigned as grounds for motion, since ruling forming basis, grounds, or cause for new trial, cannot be independently assigned as error. Teeple v. State \[Ind.\] 86 NE 49. Sufficiency of evidence to support decision of trial court may be raised under assignment to overviling of motion for new trial. Streplin v. Myers, 42 Ind. App. 381, 85 NE 784.

01. Assignment mistaking question sought to be reviewed cannot be considered. Wesse 13 Cur. Law. **APPEAL AND REVIEW SS11F.**

ment embracing several rulings will not be sustained unless all constitute reversable error.\[44\] Assignments must be directed to reviewable rulings or judgments.\[45\] In Indiana matters which are grounds for a new trial cannot be assigned as independent errors.\[46\] In Georgia a direct bill of exceptions to rulings pendente lite must assign errors both to such rulings and also to a final verdict or judgment.\[47\] The assignment to the judgment may, in such case, be in general terms.\[48\] (SS 11E) \_5. Demurrere, pleas, and replication.\[49\]\_See 11 C. L. 202.--The necessity of pleas to raise particular objections is treated in a subsequent section.\[50\] The answer to an appeal must be filed within the prescribed time.\[51\] By statute in some states the fact that a plea of release of errors is adjudged bad or is not sustained does not deprive defendant in error of the right to join in error.\[52\] (SS 11) \_F. Briefs and arguments.\[68\]\_See 11 C. L. 202.--Briefs must be filed\[54\]

Bank, 81 Neb. 704, 120 NWP 167. Where pleadings and findings disclosed that appellants were husband and wife, held that they might assign errors jointly though their exceptions to conclusions of law and their motion for new trial were several. The brief of evidence in time. Defendant MeNew V. Yerth \[Ind. Appl. 86 NE 869.\] Where practically all parties below were parties to joint appeal, and appellees themselves presented and argued some of questions presented by exceptions pendente tion, held that assignments claimed not to affect all appellants jointly would be considered, in view of Mills' Ann. St. $ 243, providing for liberal construction of statutes relating to appeals, and discretionary power of court to notice errors apparent of record notwithstanding failure to comply with statute. Windsor Reservoir & Canal Co. v. Lake Supply Ditch Co. \[Colo.\] 98 P Y29. \*\*44. Not where one was not open to objection because not excepted to, or not proprement of judgment appealed from should be rely objected to. Stowers Furniture Co. v. Blake \[Ala.\] 48 S 89. Where giving of sev-eral instructions is complained of in single assignment, all must be erroneous to make same available. Parker Land & Imp. Co. v. Ayers \[Ind. Appl.\] 87 NE 1062. \*\*45. Assignment to opinion of court is improper. Seltzer v. Boyer \[Pa.\] 73 A 438. \*\*On trial by court without jury. Schorb v. Haurand \[N. J. Err. & App.\] 71 A 242. \*\*46. Assignments that court erred in submitting case to jury for trial and in re- fusing to submit it to court for trial held to present no question. Kelley v. Bell \[Ind.\] 88 NE 58. May assign and discuss overruling of petition to remove case to federal court as independent error and error in support of motion for new trial without thereby waiving error assigned in overruling motion for new trial. Hercules Toryedo Co. v. Smith \[Ind. App.\] 87 NE 264. **47. Potts v. Prior, 131 Ga. 198, 62 SB 77.** Direct bill of exceptions will not be considered unless there is at least a general exception to final judgment. Jones v. Poole, 5 Ga. App. 113, 62 SE 711. No merit in motion to dismiss bill of exceptions on ground that error was not assigned on ver- diet and judgment where it appeared from credentials that there was direct and specific exception and assignment of error to di-rection of verdict, as well as exception and assignment of error to di-assignment of error to ruling of court in detriking answers. Duggan v. Monk, 5 Ga. \*\*48. Proof within the time prescribed,\[58\] and a failure to do so is ordinarily ground for dismissal, or pro forma affirmance or reversal,\[56\] unless excused for good cause shown,\[57\] or unless there is fundamental error apparent of record.\[58\] Ordinarily all parties on the same side of the controversy should unite in a single brief.\[59\] Statutes and rules of court prescribing the form and contents of the brief must be complied with.\[60\] Among the common requirements is a summary of so much of the record as presents the errors relied on\[61\] with reference to the record for verification,\[62\]

Havlick v. Davidson, 15 Idaho 787, 100 P

- 91. Where appellee expressly waived filing of appellant's brief below, and agreed that same might be filed direct by clerk of superme court, making no provision as to time of filing, held that submission would not be postponed to give counsel for apellee with.\[60\] Among the common requirements is a summary of so much of the record as presents the errors relied on\[61\] with reference to the record for verification,\[62\]

- Havlick v. Davidson, 15 Idaho 787, 100 P

- 92. Where appellee expressly waived filing of appellant's brief below, and agreed that same might be filed direct by clerk of superme court, making no provision as to time of filing, held that submission would not be postponed to give counsel for apellee with.\[60\] Among the common requirements is a summary of so much of the record as presents the errors relied on\[61\] with reference to the record for verification,\[62\]

- Havlick v. Davidson, 15 Idaho 787, 100 P

- 93. Where appellee expressly waived filing of appellant's brief below, and agreed that same might be filed direct by clerk of superme court, making no provision as to time of filing, held that submission would not be postponed to give counsel for apellee with.\[60\] Among the common requirements is a summary of so much of the record as presents the errors relied on\[61\] with reference to the record for verification,\[62\]

- Havlick v. Davidson, 15 Idaho 787, 100 P

- 94. Where appellee expressly waived filing of appellant's brief below, and agreed that that any appellant was not uniteful to, and agreed that any appellant's brief obey to give consent of apellee with.\[60\] Among the common requirements is a summary of so much of the record as presents the errors relied on\[61\] with reference to the record for verification,\[62\]

- Havlick v. Davidson, 15 Idaho 787, 100 P

- 95. Where appellee expressly waived filing of appellant's brief below, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to, and agreed that any appellant was not uniteful to a separate assignment or statement of the contentions or alleged errors, \[43\] and a signing petition for highway improvements to be reinstated on appeal to circuit court as original petitioners, and overriding of motion to strike sale petition and reinstate. Ellison v. Ryan \[Ind, App.\] $7 NE 244.

- \[3\] Higher did not comply with rule in that it failed to set out petition, or objections thereto, or motion to strike, or order of reinstatement, or substance thereof. Hall v. McDonald \[Ind.\] $5 NE 707. Statement in brief, with reference to transcript containing marginal notes of pleadings, instructions, etc., on which error was predicted, held sufficiently to comply with rule. Eloit v. Myers \[Ind, App.\] $8 NE 80. Where no error was predicated on original complaint in condemamation proceedings, held that it was not such a part of record as was necessary to present any of errors relied on, and hence was not necessary for appellant to set it out in his brief. Indianapolis & W. R. Co. v. Hill \[Ind.\] $8 NE 414. Errors in excluding evidence not considered, where brief did not contain copies statement of the record presenting the question, nor give page of record where evidence could be found, nor name of witness. Ellison v. Flint \[Ind. App.\] $7 NE 38. Objections to instructions not considered where all instructions given not set out. Ellison v. Ryan \[Ind. App.\] $7 NE 244. Appellant's brief need not set out all instructions given, but is sufficient to set out those critiised, it being duty of appelete to show if other instructions cured error. Simplex R. Appliance Co. v. Western Rawhole & Belting Co. \[Ind.\] $8 NE 862. Where appellant's brief contains neither instructions given or those complained of or substance thereof, no question as to same was presented. Southern Indiana R. Co. v. Drenne \[Ind. App.\] $8 NE 724. Questions presented upon conclusions of law not considered, where neither special finding of facts, nor its contents were set out in brief and it contained no statement of what conclusions of law were, nor their substance, nor how many there were. State v. Lukens \[Ind. App.\] $7 NE 246. Rulings discussed not considered, where none of them were identified as rulings designated in motion for new trial through reference to any particular causes stated in said motion, and there was no reference to particular pages and lines in transcript where exceptions to rulings could be found. Ellison v. Ryan \[Ind. App.\] $7 NE 87 NE 244. Brief held defective in that it did not sufficiently state reasons assigned in support of motion for new trial. Id. Evidence set forth by appellant will be accepted as correct in absence of corrections or additions by appellese. Simplex R. Appliance Co. v. Western Rawhole & Belting Co. \[Ind.\] $8 NE 863; Wysnow v. Sells \[Ind. App.\] $8 NE 954. Where appellant made effort in good faith to comply with rule, and substantially compiled therewith, held that defects therein would be disregarded. Teople v. State \[Ind.\] $8 NE 49. Whether ruling and exception there were sufficiently set out held immaterial, where appellees cured defect, if any, by copying or-der book entry of ruling and appellants exception thereto in their brief. Id. Apellant held to have waived errors by fall-out, but it is not possible to use the term "missing" to
  Elec. R. Co., 37 Mont. 564, 97 P 1038. Clearly setting forth contention in separate paragraph in brief held sufficient statement that it was relied on for reversal. Gehlert v. Quinn \[Montl.\] 85 P 369. Nebraska Since under Laws 1907, p. 496, c. 162, $ 4, no other assignments of error than those thereby required to be inserted in the brief are necessary, where brief particularly sets out error in giving specified instruction, such error will not be disfaced by several propositions held not regarded because in typewritten assignments of error filed by appellant only specification of such error was that made to not properly brief not considered. Bart-group of instructions of which instruction complained of was one. First Nat. Bank v. Adams \[Neb.\] 118 NVD 1055. North Carolina: Exceptions not set out in briefs deemed abandoned. Smith v. Alphin 150 N. C. 425, 64 SE 210. North Dakota: Errors deemed abandoned where assignments not set out in brief in manner prescribed by Rule 14 Pendry v. Great Northern R. Co. \[N. D.\] 117 NVD 531. In such case is optional with supreme court whether it will notice alleged errors. Schmidt v. Beiseker \[N. D.\] 120 NVD 1098. Oklahema: Where brief falls to separately set forth and number errors as provided by rule 25, appeal will be dismissed Mahaney v. Union Ins. Co. \[Okl.\] 101 P 1054. Brief should clearly state manner in which controverted points arise, facts which constitute ground work of the legal dispute, and governing propositions of law. Ferguson v. Union Nat. Bank \[Okl.\] 89 P 641. Is not sufficient to assert in general terms that ruling of trial court is wrong, but counsel should support same with argument and citation of authority if possible. Id. Pennsylvania: Questions sought to be raised by assignments of error should be set forth in appellant's statement of the questions involved. Hening v. Keiper, 37 Pa. Super. Ct. 488. South Dakota: Where appellants specified as error making of certain findings and refusal to make others favorable to them, and in specifications called attention particularly to points wherein they claimed evidence was insufficient to support findings, and also specified certain rulings at trial claimed to be erroneous, but did not in their brief call attention to such insuficiency of evidence or errors, held that court was only called upon to consider whether findings of fact supported relief v. Leyson \[S. D.\] 121 NW 868. Findings of trial court binding where there are no specifications relied on to justify disregard of same. Id. Washington: That appellant's brief contains no assignment of errors is not ground for dismissal. Spedden v. Sykes, 51 Wash. 267, 93 P 782. Assignment, statement and proposition under the Texas rule. Assignments: Assignments not copied into the brief will not be considered. Kirby v. Blake \[Tex. Civ. App.\] 116 SWV 674: McLean v. Stith \[Tex. Civ. App.\] 112 SWV 355. Rule requiring assignments to be copied not completed with where, under heading "Second and third assignments of error submitted together as a proposition," but one assignment was copied. Houston & T. C. R. Co. V. Quebecaux \[Tex. Civ. App.\] 118 SWV 582. Propositions: The particular point or points sought to be made by an assignment must be stated in the form of a proposition ported by the evidence. Id. Where reason or propositions. Court of civil appeals rules 30, 31. Assignment not followed by proposition germane to assign- proposition will not be considered. El Paso & N. E. R. Co. V. Guterrez \[Tex. Civ. App.\] 111 SWV 159; Sullivan V. Solis \[Tex. Civ. App.\] 111 SWV 159; Sullivan V. Solis \[Tex. Civ. App.\] 114 SWV 456; Missouri, K. & T. R. Co. V. Lasater \[Tex. Civ. App.\] 115 SWV 103; McCormick V. Jester \[Tex. Civ. App.\] 115 SWV 78; McCamrick V. Jeline SSV 78; McCamrick V. Collins Bros. \[Tex. Civ. App.\] 118 SWV 546; Boardman v. Woodward \[Tex. Civ. App.\] 118 SWV 550; O'Farrell V. OPFarrell \[Tex. Civ. App.\] 119 SWV 899. An assignment which is not in itself a proposition and is not followed by a proposition will not be considered. Texas Land & Irr. Co. V. Sanders \[Tex. Civ. App.\] 113 SWV 558; Houston Oil Co. V. Kimball \[Tex. Civ. App.\] 114 SWV 662; De Hoyos v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 115 SWV 75; Pullman Co. v. Hoyle \[Tex. Civ. App.\] 115 SWV 315; Birge-Forbes Co. V. St. Louis & S. F. R. Co. \[Tex. Civ. App.\] 115 SWV 323; Kirby v. Blake \[Tex. Civ. App.\] 115 SWV 674; International & O. N. R. Co. V. Garcia \[Tex. Civ. App.\] 117 SWV 206; Herman v. Allen \[Tex. Civ. App.\] 118 SWV 794; City of Pt. Worth v. Williams \[Tex. Civ. App.\] 119 SWV 159; Louisiana & T. Lumber Co. V. Kennedy \[Tex. Civ. App.\] 119 SWV 844. Assignment containing more than one proposition cannot be submitted as a proposition, but must be followed by one or more pertinent propositions. Houston & T. C. R. Co. V. Quebec-deaux \[Tex. Civ. App.\] 118 SWV 1158. Assignmentment, presenting several distinct propositions of law and not in itself a proposition, not considered. Hess v. Webb \[Tex. Civ. App.\] 118 SWV 178. App.\] 113 SWV 618; Louisiana & T. Lumber Co. V. Kennedy \[Tex. Civ. App.\] 119 SWV 884.

Portion of assignment not germane to other assignments with which it is grouped cannot be treated as proposition to such other assignments. Kirby v. Blake \[Tex. Civ. App.\] 115 SWV 674. Assignment sub-mitted as proposition held merely statement that court erred in refusing to allow plaintiff to read certain answers of witness to special cross interrogatories, and not open to consideration. De Hoyos v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 118 SWV 685; Missouri, K. & T. R. Co. V. SWV 76. Simply labeling an assignment a proposition does not make it one. International & G. N. R. Co. V. Garcia \[Tex. Civ. App.\] 115 SWV 206. Proposition not germane to assignment will not be considered. Texas Land & Irr. Co. v. Sanders \[Tex. Civ. App.\] 118 SWV 558; Simany v. Sealy \[Tex. Civ. App.\] 116 SWV 630; Munroe v. Munroe \[Tex. Civ. App.\] 116 SWV 878; Savage v. Umphries \[Tex. Civ. App.\] 118 SWV 893. Proposition that party is restricted in his recovery to allegations of petition and relief prayed for held not germane to assignment that court erred in rendering judgment for more land than was used for. Hilidebrand v. Hoffman \[Tex. Civ. App.\] 113 SWV 786. Proposition that survey without a concession or order of survey would not be legal appropriation of land or notice to anyone that it was appropriated held not pertinent to assignment that copies of record from surveyor's office were improperly admitted in evidence. Sullivan v. Solis \[Tex. Civ. App.\] 114 SWV 456. Proposition that it is not competent to establish heirship by hear-say evidence held not germane to assignment that finding of heirship was not supported by the evidence. Id. Where reason or propositions. Court of civil appeals rules 30, 31. Assignment not followed by proposition germane to assignment. Missouri, K. & T. R. Co. V. James \[Tex. Civ. App.\] 115 SWV 269. Assignment not properly presented where proposition was general and abstract and was not followed by statement. San Antonio & A. P. R. Co. V. Speneer \[Tex. Civ. App.\] 119 SWV 116. Where assignment entirely lost sight of in propositions and statement following, it is considered abandoned. Id. Multi-drug proposition not considered. De Hoyos v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 118 SWV 75; Broussard v. South Texas \[Tex. Civ. App

## Appendix A Appendix and Review 11f

### 13.1 Appendix

### 13.2 Appendix

The appendix is a summary of the results of the Appendix.

### 13.3 Appendix

The appendix is a summary of the results of the Appendix.

### 13.4 Appendix

The appendix is a summary of the results of the Appendix.

### 13.5 Appendix

The appendix is a summary of the results of the Appendix.

### 13.6 Appendix

The appendix is a summary of the results of the Appendix.

### 13.7 Appendix

The appendix is a summary of the results of the Appendix.

### 13.8 Appendix

The appendix is a summary of the results of the Appendix.

### 13.9 Appendix

The appendix is a summary of the results of the Appendix.

### 13.

statement of points and authorities.64 Matters not argued "8" will ordinarily be

where statement does not set out or refer to such evidence. Nagle v. Simmank \[Tex. \].

\[ Scott v. Lumagndi, 236 Ill. 564, 86 NE 284; to such evidence. Nagle v. Simmank \[Tex. \].

\[ Farrenkoph v. Holm, 237 Ill. 94, 86 NE 702; Civ. App.\] 116 SWV 862. Assignment that

\[ People v. Chicago, 238 Ill. 146, 87 NE 307; court erred in giving special charge and in

\[ Drum v. Capps, 240 Ill. 524, 88 NE 1020; overruling spelled paragraph of motion

\[ Show v. Marzim, 123 Ill. App. 641; Bauman

for new trial, where special charge is not

\[ copied in statement and there is no reference on record. Briggs v. New South

\[Llamber Co. \[Tex. Civ. App.\] 117 SWV 885.

\[ Massments to specified portions of charge

\[ Atshlem 1. App. 299; Stafford v. Republie Iron

\[ Assptions to specified portions of charge

\[ Atshlem 1. App. 41; Campbell v.

\[ State \[Ind.\] 87 NE 212; Johnson v. Amacher

\[ Ind.\] 88 NE 1014; Cleveland, Cincinnati,

App.\] 111 SWV 1098. Where assignments to

\[ Sveglind portions of charge themselves

\[ Atshlem 1. App. 641; Stafford v. Rewitt, 42 Ind. App.

\[ Atshlem 1. App. 86 NE 646; Stafford v. Rewitt \[ Ind.

\[ Atshlem 1. App. 86 NE 867; Cleveland, Cincinnati,

\[ Atshlem 1. App. 86 NE 868; Theobalt v. Mesplit \[Ind.

\[ Atshlem 1. App. 86 NE 867; Cleveland, Cincinnati,

\[ Theobalt v. Clapp \[Ind. App.\] 86 NE 868; Theobalt v. Clapp \[Ind. App.\] 86 NE 868; Theobalt v. Clapp \[Ind. App.\] 87 NE 100; Parker Land & Imp. Co. v. Ayers \[Ind. App.\] 87 NE 1062; Perry v. Acme Oil Co.

\[ Ind.\] 88 NE 859; Ramage v. Wilson

\[ Ind. App.\] 88 NE 862; Cole v. Thompson,

\[ Ind. App.\] 134 Iowa, 685, 112 NWV 173; Golfshin v.

\[ Goldsmith & Bro. \[Iowa\] 117 NWV 1071; Gambl's Estate v. Morrow \[Iowa\] 117 NWV

\[ Lamb's Estate v. Morrow \[Iowa\] 117 NWV

\[ Mrow v. Durant \[Iowa\] 118 NWV

\[ Mrow v. Humillon County v. Hollis \[Iowa\] 119

\[ N NWV 978; Swift & Co. v. Redhead \[Iowa\]

\[ Iowa\] 122 NWV 140; Jones v. New Orleans G. N.

\[ R. Co., 122 La. 54, 47 N 679; Webster v. Moore, 108 M. GTC, 71 A 466; Kendrick v.

\[ Warren Bros. Co. \[Md.\] 72 A 461; Pinker-

\[ von v. Randolph, 200 Mass. 24, 85 NE 892; Lewis v. Coube, 200 Mass. 182, 85 NE 1053; Feigenspan v. McDonnell, 201 Mass. 341, 87 NE 624; Yellow v. Forever Shipbuilding

\[ Co., 201 Mass. 464, 87 NE 906; Swift v. Boyd, 202 Mass. 26, 88 NE 439; Bverson v. General Fire & Life Assur. Corp. 202 Mass.

\[ Hess.\] 169, 88 NE 665; Ex parte Roberts \[Mass.\]

\[ Hess.\] 88 NE 977; Quirk v. Everett, 106 Minn. 474,

\[ H. C. \[Minn.\] 118 NWV 63; Filtering v. Minneapolis, etc.,

\[ H. C. \[Minn.\] 119 NWV 507; Wickstrom v.

\[ Minn.\] 120 NWV 1090; Northwest

\[ Thresher Co. v. Anderson \[Minn.\] 120 NWV

\[ Minn.\] 1134 Hartler v. Metropolitan St. R. Co.,

\[ H. C. \[Minn.\] 121 NWV 1124; Feldman v.

\[ Kiefer \[ Mo. App.\] 119 SWV 44; Nichols v. Williams \[Mont.\] 100 P 669; Montgomery v.

\[ Miller \[ Neb.\] 120 NWV 1991; Lubin v. Public

\[ Service R.

deemed waived; but fundamental errors may be considered though not properly presented in the brief." Briefs should not discuss matters outside of the record."" Admissions in the brief " or argument " are binding on the party making them and assignments of error expressly waived will not be considered." Supplemental briefs \[71\] and amendments \[72\] are generally permitted to be filed in proper case, but new points first raised in the reply \[78\] or supplemental brief will not be considered." Disrespectful or otherwise objectionable language may be stricken." (SS 11) _G. Dismissal and abatement of appeal, and reinstatement of the same."_ See 11 C. L. 208.\_An appeal or writ of error may be dismissed for want of jurisdiction," or of a litigable right," or of a real controversy \[70\] properly saved be-County, 137 WIs. 353, 118 NWV 850; Olson v. \[21 (55 NE v.) providing for briefs and re-Rice \[Iowa\] 119 NWV 84. \[Surfleiency of argument: Must specifically insight be elted, appelle could not raise signed. Western Union Tel. Co. v. Benson \[Ala.\] 48 S 712. Must point out particular error relied on. Kaufman v. Cooper \[Mon.\] \] record for first time in document styled 98 P 1135, former opinion 98 P 504. Assignment objecting to hypothetical question as \[A\] 88 NE 594. \[A\] 72. Held that, under supreme court rule where argument did not point out particular defects. Reed v. Syracuse \[Neb.\] 120 NW 180. Only reasons presented in argument in support of assignments considered. Young v. State Bank \[Tex. Civ. App.\] 117 SWV 476. \[A\] 66. Supreme court may of its own motion interpose objection of want of jurisdiction over subject-matter at any stage though not raised by pleadings and only incidentally in brief of plaintiff in error. Allett v. American Strawboard Co., 237 III. 55, 88 NE 685. Though supreme court may give apellee benefit of points apparent upon record, and not presented in brief, to prevent reversal, it is not bound to do so. Where instructions treated as properly in record by appellee, court need not search same for error. Indianapolis & W. R. Co. v. Branson \[Ind.\] 88 NE 594. \[A\] 87. Chicago & N. W. R. Co, v. Chicago & N. W. R. Co, v. Chicago & Nachales' Ins., 239 III. 197, 87 NE 938. \[A\] 68. Whenre appellant stated in brief that only certain question was involved, other assignments deemed wavived. Rosenthal v. Rosenthal, 154 Mich. 533, 15 Dec. Leg. N. 833, 118 NWV 18. Relators in mandamus held bound by theory of case as disclosed by petition, argument and brief. State v. Schnitger, 16 WYo. 479, 85 P 598. Where averments of pleadings are appropriate to declaration in tort and appellant so designates his purpose in his brief, appellate court will not search for other intendment on his part to support cause of action. Haskrouck v. Armeuf & Co. \[Wi.s\] 121 NWV 157. \[A\] 69. Party who in opening argument concedes correctness of decree in particular respect cannot contend to contrary in reply argument. Dashner v. Dashner \[Iowa\] 120 NW 975. \[A\] 70. Assignments withdrawn by additional brief filed will not be considered. Montgomery Trac. Co. v. Park \[Ala.\] 48 S 812. \[A\] 71. Is no authority under rules or prac-toe of federal circuit court of appeals for filling additional briefs at or after the hearing without special leave of court upon surfactant ground shown. Detroit United R. v. Nichols \[C. C. A.\] 165 F 859. Under rule 85 NE 964. Where record fails to show that lower court acquired jurisdiction on appeal \[Civ. App.\] 114 SWV 1159; Masoero v. Campbell to it. Murphy v. Trutchinson \[Miss.\] 47 S & Co. \[Vdash.\] 110 P 1024; Caixier v. Mackie-666; Lane v. Niagara Fire Ins. Co. \[Mc App.\] 116 SWV 440; Joy v. Hatfield \[Tex. Civ. App.\] 120 SWV 569. Where no transcript from justice's court in record on appeal from county court on appeal from justice's court so that it could not be determined whether there had ever been a final judgment in justice's court. American Soda Fountain Co. v. Mason TEx. Clv. App.\] 119 SW 714. Where case originated in justice court and was no bond in record on appeal from justice's court to cir-cint court. Humphreys v. McFarland \[Miss.\] 48 S 182; Johnson v. Marshall \[Miss.\] 48 S 182. Where record failed to show any judgment in justice/bodem in low," for abatement of the appeal 81 or want of capacity to prosecute it,"82 where rendered unnecessary by reason of the disposition of the appeal of the adverse party,"83 for want of prosecution,"84 for defects of procedure in bringing up the

8; Tapping v. La Compania General De Ta-

SE 305; Bachman v. Thompson \[Okl.\] 98 P bacos, 29 S. Ct. 610.

78. For waiver of the right to appeal, see

ante, & 1B.

Append dismissed: Right to appeal waived.

Macfarland v. Poulos, 32 App. D. C. 558.

Where controversy was settled before ap-

peal was taken. Fitzgerald v. Paisley

\[Iowa\] 119 NW 166. Where appellee under-

stood that agreement made after judgment

was settlement of entire controversy and ap-

pelant after discovering that fact did not

refund money received pursuant to said

agreement. Id. Where after judgment of

dismissal plaintiff so dealt with premises as

to release all right to injunctive relief

sought to defendant. Thomas v. Booth

Kelly Co. \[Or\]. 97 P 1078. Where right to

appeal waived by acquiescence in judgment.

Elwert v. Marley \[Or\]. 99 P 887. Where defendant waved right to appeal from judgment

endiming him from interfering with

certain wharfage rights by leasing from

plaintiff's grantee, pending appeal, right to

more household on premises in dispute. Id.

Fact that lessor represented that lease would

not affect right to appeal held not to prevent

Super. Ct. 58. No motion for new trial.

dismissal, since it amounted merely to ex-

Ahren-Ott Mfg. Co. v. Condon \[Okl.\] 100 P

pression of opinion as to matter of law. Id.

Vwaiver by voluntary compliance with judg-

ment. Comeseux v. V West \[Kcan.\] 97 P 381.

Order appealed from compiled with. Harrington v. Eute, A. & P. R. Co. \[Mcont.\] 101

motion for new trial fled, and subsequently

P 149. Where judgment paid. Webb City

v. Tibbs \[Mo. App.\] 116 SW 1135. Where

appellant had compiled with and accepted

benefits of decerepapaled from. Kraus v.

Xrauses \[N. J. Err. & App.\] 170 A 306. Appeal

wavived by acceptance of benefits or part of

decree, Mckain v. Mullen \[Vv. Va.\] 64 SE

829. Where plaintiff sued two defendants

jointly for tort, and judgment was rendered

against one and in favor of other and he

took judgment against former, and appealed

from judgment in favor of latter. Cameron

v. Kanrich, 201 Mass. 451, 87 NE 605.

79. For discussion of what questions will

be reviewed see post, $ 13B.

Appeal dismissed: Friculous appeal. Or-

lando v. Palladino, 61 Misc. 103, 112 SW 1118.

Appeal raising merely matters determined

on former appeal. In re Kehler \[C. C. A.\]

162 F 674. Where determination of lack of

jurisdiction by circuit court is clearly right,

appeal to federal supreme court will be dis-

missed as frivolous. Steele v. Culver, 211 U.

vin v. Shafer \[Ky.\] 113 SW 485; Venner v.

S. 26, $3 Law. Ed. 74. Where case is merely

Great Northern Ry. Co. \[Minn.\] 121 NW 211.

collusive and colorable and involves no real

Myher v. Myher \[Mo. App.\] 113 SW 689; Mill

or substantial controversy. Carlson v. Hel-

ena \[Mcont.\] 101 P 163. Only moot question

presented. Munger's Lanuty Co. v. Franklin,

82. Where it appears that appellant's right

5 Cal. App.\] 48, 97 P 95; Hannon v. Harper

\[Cal. App.\] 98 P 685; People v. Hall \[Colo.\]

100 P 119; Cardosa v. Barlot, 30 App. D. C.

\[Okl.\] 102 P 112; Miller v. Ury

86; Baird A. Atlanta, 131 Ga. 451, 62 SE 625;

State v. Boyd \[Ind.\] 87 NE 140; Brown v.

Dicus \[Ind.\] 87 NE 176; Brown v. Moore

\[Ind.\] 87 NE 871; State v. Twenty-First Ju-

83. Defendants' appeal

where new trial

dietal Dist. Democratic Committee \[La.\] 48 S

ordered as to all issues on plaintiff's appeal.

\[Iowa\]. 48 S 727; State v. Weiss \[Neb.\] 121

754.

NNV 1135; Harrison v. Bryan, 148 N. C. 315, 62

84. Appeal dismissed: For laches, Kellogg case,84 failure to make or file a proper record,85 assigning error,86 or failure to file

v. Kottke, 87 Mont. 610, 101 P 1134. Where

appleant failed for more than year after record was filed to file brief, argument, or asignment of error, or to present case orally.

Kastner v. Adams \[Arriz.\] 100 P 440, Where

appellant did not attempt to prosecute appeal with diligence or good faith. Starks-

weather v. Thornington's Estate \[Mich.\] 16

Det. Leg. N. 397, 122 NW 116. Delay in prosecuting appeals held unreasonable and inexausable, in view of Code Civ. Proc. $ 57, giving precedence to appeals in probate cases.

In re Haywood's Estate, 154 Cal. 312, 97 P

825. Where appeal was taken from order denying new trial after expiration of year

from date of judgment, and proper diligence

was not shown in prosecuting same. Wood v.

Tanner, 15 Idaho, 688, 99 P 123. Rehearing denied, 99 P 1063. Where original record was

not filed and no abstracts or briefs were served or filed by either party. Meyer v. Chicago, etc., R. C. \[S. D.\] 117 NW 1037.

**Held not ground for dismissal:** Delay in

filling statement of facts and briefs due to

delay in prosecuting mandamus proceedings

to compel certification of such statement,

following which an order extending time

was entered. First Nat. Bank v. Fowler, 51

Wash. 638, 99 P 1034. Appellants held not

guilty of inches. Farmery Co-operative

Ditch Co. v. Riverside Irr. Dist. \[Idaho\] 102 P 481. Leggett v. Evans \[Idaho\] 102 P 486.

85. Wroese remedy. For discussion of

what is proper remedy in particular cases

see ante, $ 2. Appeal instead of writ of er-

ror. Kibler v. Gull Land & Lunner Co. \[C. C. A.\] 168 F 861; Lennav v. Allen-Lane Co. \[C. C. A.\] 167 F 114; Toes v. Guffert \[C. C. A.\] 167 F 125; M. Warhat State Co. v. Portel land & Seattle Jr. Co. 1C. C. A.\] 168 F 194; Independent-Peerless Pattern Co. v. Johnson

\[Colo.\] 100 P 1129. Writ of error instead of

appeal. Nashville R. & L. Co. v. Bunn \[C. C. A.\] 168 F 862; Shook v. Dozier \[C. C. A.\] 168 F 867; Kelley v. McCombs \[Okl.\] 102 P 186.

**Failure to appeal in time:** For discussion

of what is proper time in which to appeal

see ante, $ 6B. Hellman v. Longley, 154 Cal.

78, 87 P 17; Green v. Gavin \[Cal. App.\] 101 P 17
not aggrieved. Sumpter v. Buchanan \[Ark.\] error issued upon bill of exceptions. Bush 113 SW 809; Smith v. Hagan \[Colo.\] 101 F v. Roberts, 4 Ga. App. 531, 62 SE 82. 402; Commercial Nat. Bank v. Glinsky \[Iowa\] 120 NWV 476; Stern v. Marcuse, 128 sep ante, $ 8. Where appeal not docketed App. Div. 169, 112 NYS 653. Though statue seven days before call of cases in district to which it belonged (Supreme Court Rule $; appeal from judgment of court of common 53 SE V), appellee could obtain dismissal at pleas in favor of tax payer on appeal from any time before docketed (Rule 17: 58 SE order of board of revision affirming action VII). Foy V. Gray, 148 N. C. 436, 62 SE 523. 86% For discussion of what record must show and manner of preparing same, see 94, 10. Failure of record to show pover to examine and correct errors of interior courts conferred on it by Act June 16, \[Tex. Civ. App.\] 118 SW 178. Failure of record to show that appeal had ever been Schmuck v. Hartman, 222 Pa. 190, 7 A 1031. 1031. 104. 1057. 1067. 1077. 1088. 1090. 1109. 1110. 11111. 1111.

- v. Snyder \[Or.\] 101 P 392; Hanley v. Stewart \[Or.\] 102 P 2; Nazimha Trading Co. v. Martin \[C. C. A.\] 164 F 888. Statute as to filing transcript disregarded. Bondoreaux v.-Boud-renxx, 122 La. 433, 47 S 758. Failure to pay $5 fee on filing transcript with register of trial court. Thompson v. McKay, 154 Mich. 228, 15 Det. Leg. N. 697, 117 NW 624. Failure to pay $one within time for perfecting appeal. Lom v. Fairbanks \[Mich.\] 15 Det. Leg. N. 886, 118 NW 578. Transcript insufficient. Arthur v. Doyle, 141 Ill. 432. Certificate \[C.\] 143 Infinity defective. Globe & Rutbers Fire Ins. Co. v. Lewallen \[Fla.\] 47 S 795; Keen v. State \[Fla.\] 47 S 824. Record not printed. Travis v. Metropolitan Trust Co., 169 F 1022. Noncompliance with rule requiring evidence to be printed in paper book. Quigley v. Trader's Mut. Fire Ins. Co., 35 Pa. Super. Ct. 51. Failure to print pracepics, writ, and dec. duration. Updgraff v. Snyder, 36 Pa Super. Ct. 30. Motion to dismiss on ground that certificate attached to transcript was insufficient to show what papers were considered in making ruling in question denied, where, before motion was submitted, new certification steps with file. Errv v. Phillips \[Idaho\] 101 P 596.
- v. Snyder \[Or.\] 102 P 596.
- v. Snyder \[Or.\] 102 P 2; Nazimha Trading Co. v. Martin \[C. C. A.\] 164 F 88. Statute as to filing transcript disregarded. Bondoreaux v.-Boud-renx, 122 La. 433, 47 S 758. Failure to pay $5 fee on filing transcript with register of trial court. Thompson v. McKay, 154 Mich. 228, 15 Det. Leg. N. 697, 117 NW 624. Failure to pay $one within time for perfecting appeal. Lom v. Fairbanks \[Mich.\] 15 Det. Leg. N. 886, 118 NW 578. Transcript insufficient. Arthur v. Doyle, 141 Ill. 432. Certificate \[C.\] 144 F 88. Statute as to filing transcript disregarded. Bondoreaux v.-Boud-renx, 122 La. 433, 47 S 758. Failure to pay $5 fee on filing transcript with register of trial court. Thompson v. McKay, 154 Mich. 228, 15 Det. Leg. N. 697, 117 NW 624. Failure to pay $one within time for perfecting appeal. Lom v. Fairbanks \[Mich.\] 15 Det. Leg. N. 886, 118 NW 578. Transcript insufficient. Arthur v. Doyle, 141 Ill. 432. Certificate \[C.\] 144 F 88. Statute as to filing transcript disregarded. Bondoreaux v.-Boud-renx, 122 La. 433, 47 S 758. Failure to pay $5 fee on filing transcript with register of trial court. Thompson v. McKay, 154 Mich. 228, 15 Det. Leg. N. 697, 117 NW 624. Failure to pay $one within time for perfecting appeal. Lom v. Fairbanks \[Mich.\] 15 Det. Leg. N. 886, 118 NW 578. Transcript insufficient. Arthur v. Doyle, 141 Ill. 432. Certificate \[C.\] 144 F 88. Statute as to filing fatality defective. Globe & Rutbers Fire Ins. Co. v. Lewallen \[Fla.\] 47 S 795; Keen v. State \[Fla.\] 47 S 924. Record not printed. Travis v. Metropolitan Trust Co., 169 F 1022. Noncompliance with rule requiring evidence to be printed in paper book. Quigley v. Trader's Mut. Fire Ins. Co., 35 Pa. Super. Ct. 51. Failure to print pracepics, writ, and dec. duration. Updgraff v. Snyder, 36 Pa Super. Ct. 30. Motion to dismiss on ground that certificate attached to transcript was insufficient to show what papers were considered in making ruling in question denied, where, before motion was submitted, new certification steps with file. Errv v. Prolifts v. Craigle v. Phillips \[Idaho\] 101 P 596.
- v. Snyder \[Or.\] 102 P 592; Nazimha Trading Co. v. Martin \[C.\] 100 P 514; St. Louis & S.
- v. R. Co. v. McCollum \[Ok.\] 101 P 110.
- v. Snyder \[Or.\] 103 P 406; Nazimha Trading Co. v. Martin \[C.\] 104 P 514; St. Louis & S.
- v. R. Co. v. McCollum \[Ok.\] 101 P 110.
- v. Snyder \[Or.\] 10 and serve a proper brief " within the time prescribed," or failure of a majority of the court to agree on a decision within the time limited by law." Pro forma affirmance " or reversal " is sometimes ordered instead on the same grounds, pro-

obviously meritorious appeal. Webb v. Pa- \[Though motion for new trial was properly cific Mutual Life Ins. Co. \[Mo. App.\] 119 SV 491.

87. Questions sought to be reviewed not properly assigned. Failure to file assignment of error. Lowenstein v. Bachc, 37 Pa- \[M\] Super. Ct. 426: Nashville, etc., R. Co. V. Central of Georgia R. Co. \[Ga.\] 63 SE 823: Taylor v. Wright \[Ga.\] 64 SE 656: Village of East Peotta v. Lake Erte & W. R. Co., 237 Ill. 92.

86 NE 634; State v. Merchants' Bank, 81 Neb. 704, 120 NW 167.

88. For necessity and sufficiency of briefs \[of life. Longboth- \[M\] or otherwise\]. Wood v. Griffin am v. Abercromble \[Tex. Civ. App.\] 114 SV 428. Want of sufficient brief. Ferguson v.

\[Onlon Nat. Bank \[OkL\] 99 P 641. Brief not in proper form. Mahaney v. Union Ins. Co. \[OkL\] 101 P 1054. Where no questions presented because of failure to prepare brief in accordance with rules. State v. Lukens \[Ind. App.\] 87 NE 246. Motion to dismiss for failure to file briefs in time must be determined by status of case when motion is heard. Spedden v. Sykes, 51 Wash. 267, 98 P 752.

89. Horn v. Jones \[Mo. App.\] 114 SV 545; Horner v. Goltry \[OkL\] 101 P 1111; Bunday v. Smith \[S. D.\] 121 NW 792; Ft. Worth & R. G. R. Co. v. Windham \[Tex. Civ. App.\] 120 SW 248. Not dismissed because filed day too late. Campbell v. Order of Washington \[Wash.\] 102 P 410. Motion to dismiss must be determined by status of case when motion is heard. Spedden v. Sykes, 51 Wash. 267, 98 P 752.

01. Where majority of court could not agree within six months after submission of cause, within which time Const. art. 7, 5.

requires decision to be rendered. Grand Lodge A. O. U. W. v. Hobble \[OkL\] 100 P 540.

91. Where abstract of record proper failed to show filing of motions for new trial and in arrest of judgment, filing of affokur for appeal and order granting appeal, and order granting leave to file bill of exceptions at next term. Whittleton v. Woods \[Mo. App.\] 116 SW 1065. On appeal from order granting defendant new trial on ground that court erred in permitting case to to jury, where record does not show character of repetition on which trial had, nor what verdict and judgment in fact was. Harder v. St. Louis Transit Co. \[Mo.\] 119 SV 948. Judgment in common-law action tried by district court without jury pursuant to stipulation, there being no law under which facts may be so tried. United States v. Louisville & N. R. Co. \[C. C. A.\] 167 F 306. Where objections cannot be considered in absence of evidence and evidence has been stricken. Parhausen v. State \[Miss.\] 47 S 897. Where only grounds of assignment of errors relate to exceptions to register's report improperly filed. McGuire v. Appling \[Ala.\] 47 S 700.

13 Cur. Law. **APPEL AND REVIEW $ 11G.**

vided the record affirmatively shows that the appellate court has jurisdiction."\*\* Where an appeal is taken both from an appealable and a nonappealeb order, the latter may be disregarded." Appellants are generally entitled to dismiss as of course at any time before hearing on payment of costs," but such dismissal has been held not to affect appellee's right to a hearing on cross assignments of error " or to prevent dismissal on his motion."\*\* Dismissal of an appeal carries with it a temporary restraining order in the nature of a supersedeas."\*\* In some states on dismissal of an appeal the cause may, under certain circumstances, be entered as pending on writ of error."\*\* In Georgia where a direct bill of exception fails, the app- to present questions sought to be reviewed. 954: International Text Book Co. v. Busick, Kempner v. Broyles \[Ark.\] 112 SW 219; 143 Ill. App. 417. Failure to file brief in time. Cahill v. Printly 18 Ill. App. 600; Springer Rose v. Arford \[Ind.\] 88 NNE 302. v. Baker, 139 Ill. App. 476; Buck v. Casper. 98. In order to enable appelle to affirm-140 Ill. App. 278; International Hotel Co. v. **when** one certificate, must appear from Iran-Flynn, 141 Ill. App. 532. Where abstract in-script that appellate court has jurisdiction. sunfeient to present question, and record \[Sloan v. McMillin \[Tex. Civ. App.\] 113 SW \]. v. Reynolds \[Mc. App.\] 117 SW 652. **?** Since jurisdiction of court of appeals is confined to cases of which trial court has jurisdiction,\_transcript must show that lat-preparation of transcript see ante, & 10. \[Jur.\] 114 Poll. When only question raised was sufficiency judgment of trial court is for sum below or evidence to support verdict, and tran-exript did not contain all evidence. Davies script fails to show new case came there, v. Boyers \[Mc. App.\] 120 SW 631. If tran-exript is so defective that it presents no question for decision, court on final hearing in specified time after adjournment of court, or when by law term may continue more not dismiss the appeal, since appeal is taken than eight weeks, within specified time by serving and filing notice and undertaking, after notice of appeal is given, held that, followed by filing abstract or transcript with time prescribed. Quarfe Gold Min. date of its approval, but did not show, when court adjourned, how long term could have affirmance pursuant to rule 7 for failure to continued, nor when notice of appeal was disvetised by Kirby's Dig. $ 1194, bond was filed in time, and hence it did not denied, where, within $ days after service of affirmatively appear that court of appeal. note of motion and before hearing, appel- hand jurisdiction, and motion would be delant presented authenticated copy of record \[H.\]. Id. to clerk of supreme court and prayed an appel from him, which was granted. North and from judgment on award. In Fileer, Star Fire Ins. Co. v. Dillard \[Ark.\] 111 SW 130 App. Div. 88, 114 XY8 289. That appeal 1008. **?** Failure to assign error: For necessity of new trail, which is not appealable, and from assigning error and sufficiency of assign-ments see ante, & 112. Where only matters open for review on record are not assigned \[Utah\] 100 P 677. **?**

as error or complained of. Wolf v. Sheve \[S. D.\] 121 NW 781. Where no proper submission of agreed statement of facts on \[Utah\] 99 P 262. Board of supreme court has tried, and no assignment of views of a country have authority to order error in bill of exceptions. McClarty v. Penn Mut. Life Ins. Co., 131 Ga. 724, 63 SE 224. **?**

Briefs: For necessity and sufficiency of briefs see ante, & 117. No brief or appears- to be heard upon lhs assignment of cross ance. Sehvan v. Peterman \[LA\] 95 486. **?** errors, or deprive court of powers to pass \[O.\] 101 P 889. **?** Failure to file brief in time. Schafer v. **?** on and correct any error so assigned, or if \[O.\] 101 P 889. **?** Failure of trial judge to file conclusion. San Pedro, etc., R. Co. v. Salt Lake shops of law after request, where no state-ment of facts. Werner Stave Co. v. Smith \[Tex. Cix. App.\] 120 SW 247. Failure to file statement of evidence as part of record re- and \[O.\] 135. **?**, 140 Ill. App. 235. **?**

Briefs: For necessity and sufficiency of briefs see ante, & 117. No brief or appears- to be heard upon lhs assignment of cross ance. Sehvan v. Peterman \[LA\] 95 486. **?** errors, or deprive court of powers to pass \[O.\] 135. **?** on and correct any error so assigned, or if \[O.\] 136. **?** Failure of trial judge to file conclusion. San Pedro, etc., R. Co. v. Salt Lake shops of law after request, where no state-ment of facts. Werner Stave Co. v. Smith \[Utah\] 99 P 263. **?** Fact that plaintiff in error directed dismissal of virt of error held not to pre-attement of evidence as part of record re pellate court may, in its discretion, permit the official copy of the bill retained below to be refiled as exceptions pendente lite.1 A motion to dismiss 2 or affirm,3 specifying the grounds relied on,4 and made within the time fixed by the rules * and after notice,6 together with proper proof of the grounds alleged therefor 7 is essential. A motion to affirm on certificate in Texas must be accompanied by a certified copy of the judgment.8 Matters involving the merits will not ordinarily be considered on motion to dismiss.9 A motion to dismiss for irregularities in perfecting the appeal is waived by filing a brief on the merits.10

from the death of a necessary party before the appellate court acquires jurisdiction.\[13\] Death after the appeal is perfected does not result in abatement;\[14\] providing that there is a final judgment or other surviving right.\[15\]

himself and other taxpayers of county, service. Venner v. Great Northern R. Co. against fiscal court and county jailer to enjoin court from paying out money to care for court house, and to empel jailer to care for it, plaintiff removed from county, term time appeal and after bond was filed, held that appeal would be dismissed under Civ. Code Prac. SS 757, providing for dismissal have abated appeal but merely to have transferred judgement to his representatives or the prosecute appeal has ceased. Harvey v. Fayette County Fiscal Court \[Ky.\] 113 SW 108. Appeal not dismissed where, pending revg. \[Ind. App.\] 88 NE 933. Where appeal appeal from judgment denying relief in suit to foreclose mortgage, mortgage conveyed premises to stranger, verbally agreeing to renfund purchase price if property was sold in pending suit and not purchased by grantor. Shields v. Simonton \[W. Va.\] 63 SE 972. Under Burns Ann. St. 1908, SS 872, transfer of interest by appellation pending appeal is no ground for dismissal, but action may be continued in name of original party, or court may allow transferree to be submitted. State v. Cadwallader \[Ind.\] 87 NE 644. In any event, in mandamus to compel defendant to permit use of his telephone plant and connections by relator, and for damages, amflavit showing that after judgment for defendant, appellant sold and de- livered possession of his telephone plant to a corporation, and had no other interest than that he was stockholder therein and mortgage, did not show such transfer of interest as to warrant dismissal. Id. 12. Matters in controversy fully commemont, but no steps were taken to enter aprommised and settled. People v. Wells, 140 III. App. 235. Where judgment paid pending writ of error. Knowles v. Harrington \[Colo.\] 101 P 403. Payment of judgment pending appeal from judgment quashing execution. Myher v. Myher \[Mo.\] 113 SW 689. Appeal from order granting preemp-ror proceedings by filling petition and aprepellant did everything required of him by writ. State v. Fields \[Or.\] 101 P 218. Payment to prevent key of execution is compulsory and will not abate pending proceedings in error to vacate judgment so \[R.\] 89 P 611.

Here offer of settlement which apellant re- fuses to accept does not require dismissal of pending appeal. Loveday v. Parker, 50 Pending writ, without regard to such death. Wash. 260, 97 P 62. Plaintiff obtained judge.

ment establishing its right to maintain pipe 967.

line across defendants' land, for damages for interference therewith, and enjoining further interference. Defendant's motion for new trial, which was directed to entire judgment, was denied and he appealed from defendant of motion and from judgment. Held that fact that after appeals were taken defendant parted with his interest in the land and relinquished his interest in the pipe line was no ground for dismissing appeals, since he still had right to appeal from money \[Co.\] 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 SW 115 115 SW 115 SW 115 115 SW 115 115 SW 115 115 SW 115 115 SW 115 115 SW 115 11
ReinstatementSee 11 C. L. 214.--The court may reinstate an appeal after dismissal where justice requires it.16

(SS 11) H. Raising and waiver of defects.17--See 11 C. L. 214.--Nonjurisdicitonal defects are waived by failure to object at the proper time16 or by proceeding with the case on the merits 19 or by other conduct inconsistent with an intention to take advantage thereof,20 but jurisdictional defects cannot be waived and may be raised at any time.21 The practice on motions to dismiss is treated in a previous section.22

SS 12. Hearing.22--See 11 C. L. 215.--Written request for permission to make an

16. If case is regularly assigned and coun-, !es of record and of appellant's brief. Lum sel duly notified and case is dismissed for !v. Fairbanks \[Mich\] 15 Det. Leg. N. 886, 118 lack of prosecution, it will not be reinstated !wv 578. Objection that original statement except for providential cause. Rule 22. Sasserv. Pierce \[Ga. App.\] 64 SE 1100. Court may, in its discretion, reinstate during same term ease which upon its call an calendar has been dismissed for want of prosecution !f. It appears that failure to prosecute was !f. It !wv 578. Objection that original statement of facts did not accompany record, but was copied therein, walued where not taken before submission of cause. Royal Ins. Co. v. Texas & G. R. Co. \[Tex.\] 118 SW 46; Texas has been dismissed for want of prosecution !f. It appears that failure to prosecute was !f. It !wv 578. Objection that original statement of facts did not accompany record, but was copied therein, walued where not taken before submission of cause. Royal Ins. Co. v. Texas & G. R. Co. \[Tex.\] 118 SW 46; Texas & P. R. Co. v. Stoker \[Tex.\] 113 SW 3; Hall v. First Nat. Bank \[Tex.\] 116 SW 47; Qee to no fault of counsel, but to. fact that notice required by Rule 20 was not sent or was lost in mail. Id. After dismissal for failure to timely perfect appeal, reinstate-ment may be made on showing that such failure was without laches, as where necessary papers were in hands of officers of court and mislaid until time had explored.

In the present paper, we have presented a new version of the present paper. We have presented a new version of the present paper.

## 13 Cur. Law. Appeal and Review $ 13A.

oral argument,\[94\] and notice of argument,\[25\] are sometimes required. A reargument may be ordered where a majority of the justices are unable to agree on a decision.\[26\] Counsel for parties who have not appealed will not be heard against the decree.\[27\] A continuance to procure correction of the record may be allowed in proper case.\[28\] $ 13. \_Review. A. Mode of review; review proper or trial de novo.\[29\]\_See 11 c. L. 216--Judgments at law are reviewable for matter of law only \[30\] as found in the record and bill of exceptions.\[31\] Equitable decrees and orders are usually reviewed de novo.\[32\] A trial de novo is frequently provided for on appeals in certain special

Either party on request is entitled to \[C. C. A.\] 162 F $73. Writ of error from federal argument, but such request must be put in writing or print and filed with clerk as separate paper so that he may put cause on list of cases for oral argument, request at Apostolic Church, 212 U. S. 463, 53 Law, Ed. end of reply brief not called to clerk's attention being insufficient. Great Western R. Co. v. Ackroyd \[Colo.\] 98 P 726.

In computing ten days' notice required by supreme court rule 8, day of service should be excluded and first day of term included. Village of Exelistor v. Minneapolis & St. P. Suburban R. Co. \[Minn.\] 120 NW 562.

Where two justices vote for reversal and one for affirmance, case will be ordered reheared by full court. Merck v. Merck \[S.\] 64 SE 614. Where only three of justices who heard appeal were on bench when decision was to be rendered, and they were divided in opinion, held that it was necessary to order reargument, since it requires concurrence of three justices to reverse judgment. Vlasservich v. Augusta & A. R. Co. \[S. C.\] 64 SE 913.

On appeal from decree sustaining vajidity of testamentary trust counsel for exeutors cannot be heard against decree, his clients not having taken appeal. Flitchie v. Brown, 211 U. S. 321, 53 Law. Ed. 202.

On such an application court always considers diligence of applicant. Poole v. Oliver \[Ark.\] 115 SW 952. Motion of appellant for continuance denied for lack of diligence. Id. Motion denied where correction would not change result. Ward v. McPherson \[Ark.\] 113 SW 42. Stay denied where correction proposed would present matter not open to consideration. Sidwell v. Jett, 213 Mo. 601, 112 SW 56.

## 29 Search Note: See Appeal and Error, Cent. Dig. $ 3617-3666; Dec. Dig. $ 885-89; $ Cyc. 257-265.

Lawn v. Public Service R. Co. \[N. J. Lawn\] 71 A 58; Wilber v. Gillespie, 127 App. Div. 604, 112 NYS 20; Sugden v. Peiser, 113 NFS 1084; Lieberman v. Bowden \[Tenm.\] 119 SWV 64. Proceeding to establish lost bound.

## 31 A trial de novo

## 32 A trial de novo

A trial de novo is frequently provided for on appeals in certain special

## 33 Cur. Law. Appeal and Review $ 13A.

## 34 A trial de novo

A trial de novo is frequently provided for on appeals in certain special proceedings,88 or from inferior courts or tribunals,84 or where the case is submitted on an agreed statement of facts.35 Subject to limitation to the issues as originally made,36 the rules of pleading and practice are the same as in ordinary actions where there is a formal retrial by a court of general superior jurisdiction.87

Footnote 87: The \_L.L.

In Connecticut a party may, on motion made within a specified time \[88\] and served on the adverse party, \[89\] procure a correction of findings in the appellate court. \[40\] The facts stated in the application will be taken as true unless the adverse party answers within a specified time. \[41\] Unnecessary corrections will not be made. \[42\]

(SS 13) \_B. General scope or objects of review. \[48\] See 11 C. L. \[17\]\_Unnecessary points \[44\] or abstract questions \[45\] will not be decided. Accordingly, errors which

trict court had no authority to allow amendament increasing ad damnum from $1,000 to $2,000. Id. Rev. Laws, c. 173, $ 97, providing that, with certain exceptions, on appeal to superior court case shall be tried and determined as though originally commenced there, held not to authorize such an amendment. Id. On appeal from probate to circuit court, affInvit to claim against state of decededed 552. \[100\] See, also, Appeal and Error, Cent. Dig. v. Jones, 134 Mo. App. 601, 114 SWV 104$. If identity of cause of action on ground of defense is preserved, petition or answer may be amended on appeal from county court to $35$. If $46$. If $46$. If $47$. If $48$. If $49$. If $49$.

with the error assigned. Hudson v. Missis-sippi Cent. R. Co. \[Miss.\] 48 S 289. Refusal to give affirmative charge, where reversal necessarily followed from determination that court erred in overriding demurrer to complaint. Sloss-Sheffield Steel & Iron Co v. Sharp \[Ala.\] 47 S 279. Where action was held to have been brought within one year, whether the six year or one year limitation applied. Central of Georgia R. Co. Sturgis \[Ala.\] 48 S 810. Respondent's contention that jurisdiction over nonreflecting could not be obtained by constructive service in particular form of action, where he pre-walled below and, hence, had no interests at stake. Hutchins v. Werthheimer, 51 Wash. 539, 99 P 577. Whether U. S. courts have jurisdiction of infringement of trade mark or act of unfair competition committed wholly in foreign country, where it was shown that acts complained of were not wholly performed outside U. S. Eagle Oil Co. V. Vacuum Oil Co. C. C. A.\] 162 F 671. Where judgment of lower court and disposition of case on appeal were not prejudicial to an applicant, whether lower court had no jurisdiction over his person. In re Buerstetta's Estate \[Ne.\] 119 NUV 469. Sufficiency of count of complaint, where all testimony competent there-under was admissible under another good count. Henderson Law Co. v. Hinson \[Ala.\] 47 S 117. Overruling of count and sustaining demurrer to pleas, where court gave general affirmative charge with respect to other count. Tennessee Coal, Iron & R. Co. v. Burgess \[Ala.\] 47 S 1029. Ruilings on pleadings, where pleas which survived demurrer were sufficient to admit all essential testimony. Stewart V. Southern F. Co. \[C. C. A.\] 168 F 685. Assignment concerning questions raised by demurrer to original declaration, where case was tried on amended declaration which was not demurred to and stated cause of action. Washington-So. R. Co. v. Cheshire \[Va.\] 65 SE 27. Sufficiency of demurrer's where defendants' exceptions to conclusions of law based on special findings of facts presented same questions. Shank v. Trustees of McGordshire Lodge No. 388, I. O. P. \[Ind.\] 488 NE 85. Other grounds of demurrer, where petition properly dismissed for misjander of parties. Hearn v. Clare, 131 Ga. 374, 62 SE 187. Whether certain facts, if properly presented, would have constituted defense to action, where it was not shown that such facts were cause of injury complained of Cram v. Chicago, B. & Q. R. Co. \[Neb.\] 122 NW 31. Whether certain evidence was admissible, where verdict could not have been different had it been excluded. Carscalen v. Coour D'Aleme & St. Joe Trangs, Co., 15 Idaho, 444, 98 P 622. Question of evidence as to damage, where judgment for defendant affirmed. Smith & Co v. Russell Lumber Co. \[Conn.\] 72 A 57. Whether evidence as to damages was admissible under complaint, where plaintiff was not entitled to recover on case made by her below. Mitchell v. Henderson, 57 Mout. 615, 97 P 942. Statutory presumption that indorsee of note was bona fide holder being sufficient to authorize finding, competency of other evidence introduced to show that fact. Cole Banking Co. v. Sinclair, 34 Utah, 454, 98 P 411. Objection to evidence offered in condemation proceedings for purpose of showing ownership of fee, where appellant, who made it, did not claim any title or interest in fee, and hence had no standing to make it. Chicago & N. W. R. Co. v Glos, 239 Ill. 24, 87 NE 881. Assignments attacking judgment for refusal to sustain exceptions to master's report, where it appeared that findings and conclusions of court were made without regard to such report. United States & Mexican Trust Co. v. Delaware Western Cost. Co. \[Tex. Civ. App.\] 112 SW 447. Assignments as to instructions, where judgment refusing new trial affirmed upon ground that evidence demand verdict for defendant. Watson v. Southern R. Co. \[Ga.\] 64 SE 549. Where dedemants' motorman recklessly ran into plaintiff and jury properly found for plaintiff, whether it was error to instruct that plaintiff was guilty of negligice as matter of law. Bialadexa v. Bay City Trac. & Elec. Co. \[Mich.\] 15 Det. Leg. N. 965, 118 NW 968. Merits of case will not be considered on defendants' cross appeal, where plaintiff entitled to consult. McPherson v. Seattle Elec. Co. \[Wash.\] 101 P 1084. That order overruling motion for new trial could not be considered because no notice of appeal therefrom was served or filed, in view of question submitted to jury and their finding thereon. Dackich v. Barich, 37 Mont. 490, 97 P 931. Applelee's objection to manner in which appeal was perfected, where upon appellant's open theory of case same should not be reversed. Martin Lumber Co. v. Forsythe \[Okl.\] 96 P 635. Whether or not certain documents should have been inserted in bill of exceptions, where they were absolutely immaterial and without prejudice to appellant's rights. In re Hite 's Estate \[Cal.\] 101 P 448. That ruling on motion to make complaint more definite and certain could not be considered because not preserved in record by bill of exceptions, where ruling was correct. Dackich v. Barich, 87 Mont. 490, 97 P 931 ment, and hence could not form valid claim to interest in such land, held that in suit to quiet title as against defendants' claim of an interest under such contract it was unnecessary to determine whether plaintiff's conduct caused defendant to cease efforts to sell property. Jolliffe v. Steele \[Cal. App.\] 98 P 544. Where evidence supported finding that there was dispute as to boundary line, and hence oral agreement fk3g in t was valid, whether such agreement would have been valid had there been no dispute. Wells v. Bentley \[Ark.\] 113 SWF 639. Whether agreement for survey of boundary line was arbtalion agreement so as to make finding of arbitators thereby appointed binding, where finding of court that line was as fixed by such survey was sustained by evidence. Holland v. Coleman \[Ky.\] 114 SWF 305. In action against city and contractor for personal injuries sustained by reason of defective sidewalk, error, if any, in dismismissing action against contractor was no ground for reversal of judgment against city, since it was primarily liable. Jones v. Seattle. 51 Wash. 245. 88 P 743. Validity of other titles as against each other, in suit to quiet title, where tax title of one defendants was superior to all other titles pleaded. Hahn v. HIII Inv. Co. \[Kan.\] 100 P 484. In action to recover value of property sold by defendant as sherift under execution, and which plaintiff claimed to own, plaintiff's contention that sale was irregular, since, if property belonged to plaintiff, admitted taking by defendant was a conversion, and if not, Irregularity did not concern him. Burrell v. Collins \[Cal. App.\] 99 P 211. Whether mortgager seeking to redeem was bound to tender money to cover certain items claimed by mortgage, where tender clearly insufficient as to other items. Murray v. Strother \[Ala.\] 48 S 72. Whether complpliance with statute as to notice of expiration of period to redeem from tax sale and of intention to take out tax dead was jurisdictional, where notice was given. Bandow v. Walven \[S. D.\] 120 NW 881. In suit by contractors and others to foreclose mechanicators' claims, owner deposited amount claimed by contractors, in court. Held that on appeal by owner distribution of sum awarded contracts among item claimants obtaining personal judgments against them was immaterial on appeal by owner, his only interest in sum deposited being to have returned to him balance thereof after deducting amount found due contractors. Los Angeles Presaged Brick Co. v. Higgins, S Cal. App. 514, 97 P 414. Whether commissioners of election and county court had right to go behind poll lists and returns and examine ballots, where circuit judge held that he had right to do so and proceeded accordingly, appeal being only for purpose of preovaring re-examination of his judgment. Catlett v. Knoxville, S. & R. Co. \[Tenn.\] 112 SWF 559. Whether certain ballots were void in view of fact that deletion would not affect result of election. Id. Other questions in suit for partition where evidence failed to show complainant's right there. Dallam v. Sanchez \[Fla.\] 47 S 871. Rights of parties in action by pledgegor of notes secured by trust deed foreclosed by pledgege, who purchased property to have title decrered in plaintiff and for accounting, where plaintiff at trial accepted conveyance of property covered by trust deed. Nevimus v. Moore \[Mc.\] 120 SWF 43. Whether testa-trival was of sound mind, where will not executed as required by statute. Schofield v. Thomas, 236 Ill. 417, 86 NE 122. Burns' Ann. St. 1908, $ 708, providing that appellate court shall not reverse proceedings any further than to include first error, implies duty to reverse on first error. Southern R. Co. v. McNeeley \[Ind. App.\] 88 NE 710. Though special demurrer raised valid objections to paragraphs of petition, court will not re-mand case without passing on merits because such demurrer was overruled, since defendant also raised exceptions going to merits which are evaluated. Louisville & N. R. Co. v. Holland \[Ga.\] 63 SB 898. On appeal from order granting motion for new trial, all the grounds assigned in motion will be considered, though order was founded upon but one in which there was no error. Whitstett v. Peoples Nat. Bank \[Mc. App.\] 119 SWF 599. 48. Chicago R. Equipment Co. v. National follow Brax-Beam Co., 239 Ill. 111, 87 NB 872; Chicago, I. & L. R. Co. v. Hallroad Commission \[Ind.\] 87 NE 1030; V. Wodowr v. Peoples 193. N. Y. 566, 86 NE 562; Albright v. Erickson \[Okl.\] 102 P 112; Miller v. Urry \[Okl.\] 102 P 113; Johnson v. Scott \[Tex. Civ. App.\] 111 SWF 167; Keeely v. Ophir Hill Consol. Min. Co. \[C. C. A.\] 169 F 601. Where only question involved has become abstract, jurisdition will not be retained to settle merely an incidental question of costs. State v. Boyd \[Ind.\] 87 NE 140. Most case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered for any reason, cannot have any practical legal effect upon a then existing controversy. Ex parte Steele, 162 F 694. When there is real controversy whether there are two judges of a district, and, if so, as to their respective power in removing and appointing officials, a case actually made concerning it cannot be treated as a mood case
APPEL AND REVIEW $13B.

13 Cur. Law.

fendant sold the property. Draper v. Hoope, 185 Ill. App. 388. Issue as to attachment, where defendant, whose lumber was attached, sold it before trial of case in appeal to circuit court without obtaining release. Booker v. Whythe \[Ark\] 118 SWV 401. Though defendant affected by costs, question could have been reached by motion to retax. Id. Power of federal court to grant order for disinterment of body of assured, in order that autopsy might be held for purpose of discovery, after such disinterment and autopsy. Griesa v. Mutual Life Ins. Co. C. C. A.169 F 509. Where actions at law and equity were submitted to trial court at nearly same time and involved same question, determination in law action affirmed by court of appeal required dismissal of appeal in equity suit. Keely v. Ophir Hill Consol. Min Co. C. C. A.169 F 601. Offer of debtor in supreme court to suffer judgment to be rendered against him for amount claimed by his adversary, with costs, puts an end to litigation, and it is not necessary for him to pay or tender same into court. United States Fidelity & Gunar, Co. v. Rainey \[Tenm\] 118 SWV 397. Contention that appeal in creditor's suit should not be dismissed in such case, because appellants were made defendants as representative of certain class of creditors whose rights would thereby be defeated, held subtenable, where bill did not show that such was fact, particularly where degree granting appeal showed that they prayed same individuality. Id. Bill in equity to establish lost deded which would convey no estate. Morris v. Parry, 218 Mo. 701, 118 SWV 439. Where appellant dies after appealing in actions which abate on his death. Hamnon v. Harper \[Cal. App.\] $P 685. Appeal after judgment paid and discharged. Clinton County Comm's V. Clark \[Ind. App.\] $7 NE 1059. Judament sought to be reviewed paid while appeal pending. Knowles v. Harrington \[Colo.\] 101 P 403. Right to license to sell liquor in territory, where after case was tried below territory became state, constitution of which absolutely forbade sale of liquor. Conily v. Overchloss \[Ok\] $P 265. Similar as311: Bachman v. Thompson \[Ok!\] $P 426; Hodges v. Schafer \[Ok!\] 100 P 537. Whether or not unlawful sale of toxicants in Oklahoma prior to its admission as state constituted common nuisance for which injunction would lie under state upon relation of county attorney, in name of territory, and without bond. Powell v. Territory \[Ok!\]. $P 267. Plaintiff used to restrain trespass by agents of munic-100 P 514. Case involving granting of liquor license which has expired, Brown v. Dicus \[Ind.\] $7 NE 716; Brown v. Moore \[Ind.\] $7 NE 974; Verwerka v. Fulmers \[Neb.\] 118 NWV 1097. Where liquor license explored pending appeal from erroneous order refusing to Issue writ of mandamus to compel its revocation, held that, though no, writ would issue, relator was entitled to reversal of judgment with costs and a judgment for costs in lower court. State v. Wausau, 137 Wis. 311, 118 NWV 810. Where case not submitted in time to decide rights of parties to office. Salter v. St Louis & S. F. R. Co. \[Misa.\] $7 897. Appeal in quo warranto proceedings to obtain possession of office, dismissed, where term of office in dispute had expired and appelee had thereupon volimentary delivered office to relator, and abstract question was not of general interest, since statute which gave rise to controversy had been repeladed. State v. Boyd \[Ind.\] $7 NE 140. Right of mayor to vote as member of city council, where he had ceased to hold office and no longer claimed right. People v. Hall \[Colo.\] 100 P 1139. Appeal from perpetmony with amendments directing political committee to recanvass returns of primary election, where before hearing election was held and relator's opponent was elected and commissioned and qualified. State v. Tween \[Misa.\] $7 897. Appeal in quo warranto proceedings to obtain possession of office, dismissed, where term of office in dispute had expired and appelee had thereupon volimentary delivered office to relator, and abstract question was not of general interest, since statute which gave rise to controversy had been repeladed. State v. Boyd \[Ind.\] $7 NE 140. Right of mayor to vote as member of city council, where he had ceased to hold office and no longer claimed right. People v. Hall \[Colo.\] 100 P 1139. Appeal from perpetmony with amendments directing political committee to recanvass returns of primary election, where before hearing election was held and relator's opponent was elected and commissioned and qualified. State v. Tween \[Misa.\] $7 897. Appeal in quo warranto proceedings to obtain possession of office, dismissed, where term of office in dispute had expired and appelee had thereupon volimentary delivered office to relator, and abstract question was not of general interest, since statute which gave rise to controversy had been repeladed. State v. Boyd \[Ind.\] $7 NE 140. Right of mayor to vote as member of city council, where he had ceased to hold office and no longer claimed right. People v. Hall \[Colo.\] 100 P 1139. Appeal from perpetmony with amendments directing political committee to recanvass returns of primary election, where before hearing election was held and relator's opponent was elected and commissioned and qualified. State v. Twenty \[Misa.\] $7 NE 141. Appeal from perpetmony with amendments directing political committee may not arise on a retrial 46 or which have been abandoned or waived,47 will be ignored. Only the judgment 48 or that part of it 49 appealed from is reviewable. The court is not bound to consider the case on any other theory than that on which it is presented,50 though it may sometimes do so.51 Only matters affecting the

fenses might be interposed to excuse viola- \[where waived. Dreeland v. Pascoe \[MontJ tion of statute, where defendant was given benefit of only defense actually interposed by it. Cram v. Chicago, B, & Q. R. Co. \[Neb.\] 122 NWV 31. Questions not raised by evil- \[of sidewalk was sustained on statement of dence. Glover v. Ehrlich, & 2Misc. 245, 114 NYS 992. Action on contract whereby defendant agreed not to sell certain foods during certain length of time, where said time had expired and defendant was no longer engaged in business. Independent-Peerless Pattern Co. v. Johnson \[Coo.\] 100 P 1129. Court is not called upon to fix rights and obligations of parties to alleged contract unless decision on those points is invoked independently and in aid of present controversy as arising under that contract. Illinois Cent. R. Co. v. St. Louis & S. F. R. Co. \[La.\] 49 S 976. On appeal from order appointing appraiser to ascertain amount of inheritance tax, supreme court will go no further than to ascertain, if there is any property subject to apprisement. In re Douglas County \[Neb.\] 121 NWV 593. Validity of act making corporations and others liable for injuries to employees considered only in so far as it related to employees, where defendant used thereun- \[of\] 49 S 976. On appeal from order appointing appraiser to ascertain amount of inheritance tax, supreme court will go no further than to ascertain, if there is any property subject to apprisement. In re Douglas County \[Neb.\] 121 NWV 593. Validity of act making corporations and others liable for injuries to employees considered only in so far as it related to employees, where defendant used thereun- \[of\] 49 S 976. Bidding \[Ark.\] 118 SWV 786. 40. Lyden v. Spohn-Patrick Co. \[Cal.\] 100 P 28; Buchner v. Malloy \[Cal.\] 100 P 687; Indianapolis & W. R. Co. v. Hill \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 86 has \[Ind.\] 87 has \[Ind.

party or parties appealing will be passed upon,"11 except that, in some states, where parties stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment, the rights of all will be settled though all do not appeal.88 An exception is also made in certain cases as to parties under disability.54 As a general rule, no question not properly saved below,"11 preserved and presented in the record,"12 properly assigned "13" and briefed and

wrong, and, as a correct exposition of the | Co., 122 La. 639, 48 S 134; Corbitt v. Hanlaw, is appropriate to the facts involved, it is controlling and should be adapted, | If against each other must present their thoughts legal principal applied may not claims by cross appeal. San Pedro, etc., R. have been suggested by either party. Patty | Co. v. Salt Lake City Board of Education v. Salem Flouring Mills Co. |Or.| 100 P 298. |Utah| 99 P 263. |Errors against appellee |S2. Williams V. Grimm |LKy.| 112 SW 893; Bennett v. Knott |Ky.| 112 SW 849; Sin-g dietary v. Boener-Morris Candy Co. |Ky.| 112 SW 637; Van Arsdale & Osborne v. Groer |Kx.| 198 P 801; Shawnec County Com'rs County Olustee School Dist. No. 35 |UkL| 101 P 1121. |Insufficiency of damages award- ed complainant not considered where he did not not appeal from decree. McEsproy v. McCar's v. Torkin |R. I, 71 A 646. |Plaintiff held not entilled to complain that exceptions to report of referee should not have been considered because filed too late where he did not appeal. |Snyder v. Crutcher |Mo. App.| 118 City Board of Education |Utah| 99 P 268. |SW 489. |Plaintiff not entitled to judgment for attorney's fees where did not ask for it below and did not appeal. Des Moines |Life Ins. Co. v. Clay |Ark.| 116 SW 232. |In action against defendant and another whether it was error to dismiss complaint as to latter cannot be considered on defendants appeal from judgment against it for the defendants was void on its face held plaintiff. Moore v. Coney Island & B. R. Co. will 117 NYES 604. In action to quiet title to reality and to enforce specific performance of contract whereby one of defendants agreed to purchase same, held that, on appeal by purchaser from judgment for plain-fication of it, cross petitlon in error is |Mm|instructr's sale under which plaintiff |M|instructr's sale under which plaintiff |M|instructr and all persones interested in estate, who were only person s who could question plaintiff's title. |W. Shell, 77 Ohio St. 218, 82 NE 1075. |Where apscaled. |Wiley v. Verhaest |WWash.| 100 P 1008. |On appeal from order of board of respondent is not required to take cross appervisors deriving petitlon for establishment of drainage district, district court held to have no authority to establish an- other drainage district for benefit of certain intervenors who did not appeal. Hart-shorn v. Wright County District Ct. |Howal 120 NWF 419. |Decree cannot be modified in plaintiff's favor on defendants appeal. Rankin v. Schultz |Iowa| 118 NWF 388. |Plaintiff's contention that court would have been justified in refusing to allow defendants' claims of recombinant not considered on defendants' appeal. Butts v. Gunphy, 135 Mo. App.| 28, 115 SW 493. |Shpening court will make no decree in favor of one of several defendants who does not appeal, though otherwise would have done so. Feuerstein v. Richter, 154 Mich. 312, 15 Det. Leg. N. |T51, 117 NWF 740. |Correctness of adverse ruling declaring act unconstitutional not to be considered where respondent did not appeal therefrom. Shull v. Missouri Pac. R. Co. |Mo. App.| 119 SW 1086. |Judgment cannot be amended or reversed as between apellees. Lee v. Powell Bres. & Sanders argued,"\* and no questions which do not harm the person appealing or objecting " will be considered, but fundamental errors and jurisdictional defects, if apparent on the face of the record, will be reviewed though never before urged."

(SS 13) _C. Restriction of review to rulings and issues below._"See 11 C. L. 220 Review proper is, of course, strictly confined to the rulings made and the issues joined and decided below," though excluded evidence may be considered under certain circumstances," and in some states the appellate court may, in its discretion, allow a review of certain decrees for new matter discovered after their rendition." All the evidence properly admitted may be considered though part of it was disregarded below." As a general rule the theory of the case acquiesced in below will be adhered to," and a correct ruling will be sustained though wrong or deficient reasons were given therefor below."

(SS 13) _D. The extent of the review and the questions reached are determined by the character and effect of the order or judgment._"See 11 C. L. 220--As a general rule, an appeal from the main or final judgment takes up all intermediate orders or proceedings " but not those subsequent to it." In some states it does not take

SS8. See SS 11F, ante.

59. See Harmless and Prejudical Error,

11 C. L. 1590.

60. See Saving Questions for Review, 19

12 C. L. 1763.

61. Search Note: See notes in 3 Ann. Cas.

745: 8 Ito. 487.

86. See, also, Appeal and Error, Cent. Dig.

01. See SS 11F, ante.

01. See SS 11F, ante.

01. Checker's refusal to strike amendment to bill. Harper v. Raisin Fertillizer

11 C. L. 1590.

88. See Saving Questions for Review, 19

13 C. L. 1763.

up appealable interlocutory orders," unless they involve the merits or necessarily affect the judgment."2 An appeal from an interlocutory order brings up only the order itself as it stood at the time it was made "8 and nothing subsequent."4

er where was no appeal from judgment determining amount to which plaintiff was making such allowance. Grooms v. Mul. \[id=132\] But, 132 Mo. App. 477, 112 SWV 683. Failure of judge to make up and file statement of facts within time prescribed by law cannot be reviewed by assignment of error, predicated on ex parte afflavit of counsel incorporated in record, on appeal from judgment, it not being one of matters which court of appeals is authorized to review on appeal by Rev. St. 1895, art. 1014, nor a matter apparent of record within meaning of that section, nor a jurisdictional question with: in meaning of Int. art. 988. Applebaum v. Bass \[Tex. Civ. App.\] 113 SWV 173. Error apparent of record as used in statute means is prominent error, either fundamental in character, or one determining question upon which the very right of the case depends. It. Held further that there is ample remedy to restore to record statement not filed in time under Rev. St. 1895, arts. 1015, 1382, authorizing court of appeals, for good cause shown, to extend time, or by mandamus to compel judge to act. Id. See, also, Rush v. Thompson & Co. \[Tex. Civ. App.\] 113 SWV 546. \[id=132\] 71. Overruling of demurrer to bill. Reck v. Reck \[Md. App.\] 72 A 144. Order over- ruling plea in abatement. MacKenzie v. MacKenzie, 141 Ill. App. 126. Granting of preliminary injunction cannot be assigned for error on appeal from decree making it perpetual, but it is open for review only Dupex de Co. v. Craven, 114 NYES 784. \[id=132\] 73. On appeal from judgment sustaining Starr & C. Ann. St. 1896, p. 3171, c. 110, par. \[id=132\] 71. relating to appeals from interlocutory orders. Leslie E. Neeley Co. v. Harreaves, 236 Ill. 316, 86 NE 132. Order dissolving attachment being applicable, under Code Civ. Proc. 8 \[id=132\] 756. Is not reviewable on appeal from judgment. Code Civ. Proc. 8 \[id=132\] 895. Kennedy v. Merickel, 8 Cal. App. 378, 97 P 81. That part of judgment foreclosing mortgage on land which orders personal judgment for deficiency is appealable, and, where not appealed from, cannot be reviewed on appeal from judgment entered after confirmation of the sale. Hornestead Land Co. v. Strophal \[IWis.\] 121 NVV 892. Statute giving appeal from order appointing receiver pendente life, held that rule that court will not appoint receiver until defendendent has been heard, unless necessity is of intent stringent character, can only be enforced upon appeal from order appointing receiver. Baker v. Baker v. Baker, 108 Md. 269, 70 A 418. On appeal from dismissal of excepting to shelf's sale on foreclosure against married woman, appointment of committee ad liter from insane defendant and refusal of motion to set aside such appointment cannot be reviewed where no appeal taken from such decree or dismissal. Seltzer v. Boyer \[Pa.\] 73 A 438. Failure to appeal from order continuing case settled without considering, when continued in order to determine right of plaintiff's attorney to consent fee held waiver of question of right Maileom, 129 App. Div. 276, 113 NYES 666. \[id=132\] 74. On appeal from adverse sustaining deal from raising it.on subsequent judgment 13 Cur. Law. APPEAL AND REVIEW SS 13D. 257

peals from the grant or refusal of a new trial,\[75\] or from orders made after judgment,\[76\] reach only those matters which entered into the order itself. In some states, however, an appeal from the order on a motion for a new trial, rather than an appeal from the judgment, reaches the facts,\[77\] and only matters urged as grounds for a new trial can be reviewed.\[78\] Ordinarily, on appeal from a default judgment after a writ of inquiry, the only questions open to consideration are those relating to damages.\[79\] In Georgia final orders or judgments are reviewable by direct bill of or strike amendment,supreme court can

ure to find upon material issue is error of only consider motions to dismiss bill as amended and to strike amendment, there

law, and is reviewable on appeal from ordemanding motion for new trial. Mered having been no degree on the motion to dis-Bank v. Price \[Cal.\] 98 P 838. On appeal miss the original bill before the filing of

from order denying motion for new trial, the amendment. Harper v. Raisin Fertilizer

court may look into bill of exceptions to Co. \[Ala.\] 48 S 589. On appeal from order

determine whether evidence is sufficient to granting injunction restraining keeping of

sustain findings and whether any prejudil-disorderly house, cannot consider answer

cial errors of law occurred at trial. Id, Surf- to merits filed after issuance of injunction.

ficiency of complaint to state cause of ac-Gen. Laws 1907, p. 207, c. 107. Jeline v.

tion will not be considered on appeal from state Tex. Civ. App.): 115 SW78. On appeal from interlocutory order dissolving intention, answers of defendants, filed after

673.

order made and not considered below, will

not be considered, though copied in tran-

not reviewable upon technical grounds in script. Builder's Supply Co. v. Acton \[Fla.\]

appeal from order in contempt proceedings

47 S 822.

for disregard of former. Goldreyer v. Shata,

78. Jones v. Jacksonville Elec. Co. \[Fla.\]

114 NYS 839. After time for appealing orig-

47 S 1. Objection to form of judgment in

national case has expired, question of sufficiency

action to rescind contract for fraud based

of evidence to support judgment cannot be

on insufficiency of allegation of offer to re-

raised on appeal from refusal to reopen case

store consideration cannot be raised on ap

for newly-discovered evidence. Catts v.

peal from order denying new trial. Davis

Catts, 37 Pa. Supper. Ct. 598. On appeal from

v. Butler, 154 Cal. 623, 98 P 1047. On appeal

order opening judgment on municipal lien

from order denying new trial, only such

where trial court did not strike the lien

matters may be considered as are made

and defendants does not appeal from refusal

grounds upon which superior court is

authorized to strike, apellate court in affirming, order

thorized to grant or deny the motion. Bone

will not strike lien. Philadelphia v. Ma-

v. Hayes, 154 Cal. 759, 99 P 172. Errone-

son, 37 Pa. Supper. Ct. 478. Right to object

ous overruling of demurrer to complaint is

to decision of court and service thereof is

not one of such matters. Id. Where cause

involved in motion to set aside judgment

of action is set forth as against one defend-

and is waived by neglect to appeal from

ant, neither its insinficiency as against

such order. Lally v. New York, etc., R. Co.,

other, nor any defects of form can be con-

sidered on plaintiff's appeal from order de-

77. In order for-applicable court to review

lying new trial. Id. Neither sufficiency

sufficiency of evidence to sustain verdict or

of complaint, nor sufficiency of findings to

finding, motion for new trial upon that

support judgment is reviewable on appeal

ground must be presented to and acted upon

from order denying motion for new trial.

by trial court, which motion, and the order

Merced Bank v. Price \[Cal.\] 98 P 838; Ar-

royo Ditch & W. Co. v. Baldwin \[Cal.\] 100

evidence to appellate court by proper bill

P 874. Conclusions of law are always

of exceptions, and fact that trial was by

merged in, and superseded by, the judgment,

judge without jury, and that finding and

and, even if necessary thereto, can be re-

judgment were excepted to, does not change

viewed only on appeal from judgment or

rule. Manate County State Bank v. Wade

from order made under Code Civ. Proc.

\[Fla.\] 47 S 927. Appeal from order deny-

## 668, 683%, authorizing vacation of judg-

ing motion on minutes for new trial brings

ment which is inconsistent with findings,

up to supreme court, though not to court of

and not on appeal from order denying mo-

appals, question whether there was any

tion for new trial. Mentone Irr. Co. v.

evidence, on which to go to jury, weight of

Redlands Elec, L & E. Co. \[Cal.\] 100 P 1082.

evidence, and all errors of law, provided

On appeal from order granting new trial

motion is made on such ground or grounds.

solely upon errors of law, appellate court

Smith v. Long Island R. Co exceptions," while other rulings must be preserved by exceptions pendente lite or a motion for a new trial.""

(SS 13) \_E. Restriction to contents of record."\_See 11 C. L. 222--Except as to matters judicially noticed and fundamental or jurisdictional errors, appellate review is ordinarily confined to matters apparent from the record, and matters aliquude will not be considered."

(SS 13) _F. Rulings peculiar to province of trial court._ 1. \_Discretionary rulings in general."\_See 11 C. L. 223--A discretionary ruling is not absolute but will be reviewed only for abuse or to prevent manifest injustice." This rule has been applied to rulings on motion for change of venue,"" motions for continuance," orders

fault judgment, though necessary to execute wrt of inquiry. Hall v. Nix \[Ala.\] 47 & S 335.

Berkner \[Minn.\] 121 NWF 852. Overruling cute wrt of inquiry. Hall v. Nix \[Ala.\] 47 & S 335.

S0. Rulings sustaining or overruling departure or allowing amendments to pleadings cannot be made grounds of motion for new trial, but direct exceptions must be filed thereto in order to obtain review thereof. Hawkins v. Studdard

\[Ga.\] 63 SE 352. Order sustaining demurrer to petition and directing that it be dismissed if not amended within 34 days held final order, no motion to reinstate having been made during term, so that exceptions pendente lite could not be filed thereto.

Waller & Co. v. Clarke \[Ga.\] 64 SE 1096.

Direction of verdict for plaintiff on first trial -of suit for total divorce held reviewable by direct bill of exceptions. Rorie v. Rorie \[Ga.\] 64 SE 1070.

S1. Where court alleged to err in consolidating case for trial, proper practice is to file exceptions pendente lite. Duke v. Hill \[Ga.\] 63 SE 823. Exception to judgment rendered on motion to strike paragraph of defendants answer must be preserved in bill of exceptions pendente lite, unless bill of exceptions certified within 30 days from day judgment is made. Kelly v. Malone,

5 Ga. App. 618, 63 SE 639. Ruling cannot be reviewed by motion for new trial. Id.

SE. Search Note: See note in 9 C. L. 205.

See, also, Appeal and Error, Cent. Dig.

SS 2867-2872; Dec. Dig. **SS 671**, 672; 3 Cyc.

165.

S3. See ante, $ 9D.

S4. Search Note: See Appeal and Error: Cent. Dig. **SS 807**, 3892; Dec. Dig. **SS 940**-986;

S5 Cyc. 285-445; 2 A. & E. Enc. P. & P. 409.

S5. Jones v. Springfield Trac. Co. \[Mo. App.\] 118 SW 675; Anderson v. Salt Lake & O. R. Co. \[Utah 101 67 679.

Refusing re-question not made within time provided by law, especially where request does not show on its face a reason for delay, and record abused. United States v. Hrasky, 240 Ill.

does not show that party was denied opportunity to prove any such reason. Mox-ham & Ferndale Bridge, 36 Pa. Super. Ct.

298. Making and enforcing rules of court.

In re Rubenstein, 129 App. Div. 826, 113 NYS 854.

Construction of its rules by trial court. Frost v. Pennington \[Ga. App.\] 65 & S 41.

Dismissal of petition by client for collection of money held by attorney praying' that in default thereof attorney be punished. Goss Printing Press Co. v. Todd, 202 Mass. 185, 88 NE 780. Character and form of evidence necessary to show disqualification of officer so as to warrant appointment of elisor to make jury list. Welcome v.

relating to pleadings," the consolidation of actions," to the granting or refusal to grant a temporary injunction," or to the continuing " or dissolution " of such an

mit County School Dist. No. 7 \[Colo.\] 101 | SWV 221; Buchner v. Malloy \[Col.\] 100 P P 343; W. A. Jordan Co. v. Sperry Bros. 687; United States Fidelity & Guar. Co. v. \[Iowa\] 119 NWV 692; Hinton v. Atchison & People \[Colo.\] 88 P 82; Harrison V. Carlson N. R. Co. \[Neb.\] 120 NWV 481; Horton v. \[Colo.\] 131 P 76; Southern Home Ins. Co. v. Haines \[Okl.\] 102 P 121. \[St.\] 49 S 822; Rankin v. Caldwell, 87. Pine Bluff & W. T. Co. v. McCaskill 15 Idaho, 625, 69 P 108; Hawick V. David- \[Ark.\] 114 SWV 208; American Standard 8n, 15 Idaho, 787, 100 P 91; Reynolds v. Jewelry Co. v. Hill \[Ark.\] 117 SWV 781; Phillpa, 141 III. App. 482; Holland v. Hum- \[Lectures v. McGurie \[Ga.\] 63 SB 62: Leath- \[mll. Ind.\] 87 NS 662: Mansfield v. \[Ark.\] 65 SE 1118; Leverett Malay \[Iowa\] 118 NWV 290; McLaughlin v. v. Tiff \[Ga. App.\] 64 SE 217; Southern R. Bradley \[Iowa\] 118 NWV 383; Burke v. Burke Co. v. Brock \[Ga.\] 64 SE 1083; Frost v. \[Iowa\] 118 NWV 129; Muston v. Chicago, Penninption \[Ga. App.\] 65 SE 41; Rankin v. \[Gat.\] 102 P 254; Anderson v. \[Gat.\] 15 Idaho, 625, 99 P 108; Morgan Stewart, 108 Md, 340, 70 A 228; Institution v. Whalen, 113 N78 609; Waratelme v. \[For Sav. V. Purefer, 201 Mass. 41, 87 NE Schwerker, 61 V Mash. 259, 88 P 747; Cleer's 563; Commonwealth v. National Cont. Co., ello v. Chesapeake & O. R. Co. \[IV. Va.\] 64 201 Mass. 48, 87 NE 590; Darrow v. Bra- \[SE 621; Levy v. Larson \[C. C. A.\] 167 P 8 man, 201 Mass. 46, 88 NE 5; Newberry v. \[Horton\] 110. Refusal held abuse of discretion. Chicago Lumping - Co., 194 Mich. 84, 15 Morrow v. Sneed \[Tenm\] 114 SWV 201. \[Det. Leg.\] 88. Refusal to allow bijection to bill in Melchior, 106 Minn. 347, 119 NWV 402; Frea- \[Geurty on ground of multifarousness, where sister v. Harr on \[Mo. App.\] 118 SWV 108; raised by answer. Barnes v. American L. \[Horton\] 118 SWV 1291. \[Horton\] 118 SWV 130; Dembater v. Oregon \[Horton\] 118 NWV 1402; Dembater v. \[Horton\] 118 NWV 1110; Eppler v. Kennedy, 151 App. \[Horton\] 118. \[Horton\] 119. \[Horton\] 119. \[Horton\] 119. \[Horton\] 119. \[Horton\] 120. \[Horton\] 121. \[Horton\] 122. \[Horton\] 123. \[Horton\] 124. \[Horton\] 125. \[Horton\] 126. \[Horton\] 127. \[Horton\] 128. \[Horton\] 129. \[Horton\] 128. \[Horton\] 129. \[Horton\] 129. \[Horton\] 120. \[Horton\] 121. \[Horton\] 120. \[Horton\] 121. \[Horton\] 122. \[Horton\] 123. \[Horton\] 124. \[Horton\] 125. \[Horton\] 126. \[Horton\] 127. \[Horton\] 128. \[Horton\] 129. \[Horton\] 128. \[Horton\] 129. \[Horton\] 120. \[Horton\] 121. \[Horton\] 120. \[Horton\] 121. \[Horton\] 122. \[Horton\] 123. \[Horton\] 124. \[Horton\] 125. \[ injunction, rulings on motions to reinstate cases dismissed for want of prosecution, \[93\] rulings as to the order in which cases shall be assigned for trial, \[94\] rulings as to whether certain question shall be tried by a jury when a jury trial is not a matter of right, \[95\] rulings in regard to the selection of jurors, \[98\] rulings at the trial generally, \[97\] the determination of questions preliminary to the admission of evidence, \[98\] rulings in respect to the examination of witnesses, \[99\] the admission of expert

that it was improvidently granted, and only \[Yex. City, App.\] 116 SVV 425. Ex-questions of law were involved. Swan v.clusion of depositions after careful inquiry. Indianapolis \[Iowa\] 121 NWV 547. Denial will \[Valleroy v. Knights of Columbun, 135 Mo. not be interfered with where good faith of \[App. 57, 116 SWV 130. Admitting testimony application is denied and equities are not clear, Stuckey & Tiller Co., V. Priest \[Fla.\] \] state. Wimberly v. State \[Ark.\] 119 SWV 688. 47 S 811. \[Fusal to strike out testimony received without objection. Calabwell v. U. S. Exp. S 822. \[Flatch v. Raney \[Cal. App.\] 100 P 886; Long v. Newman \[Cal. App.\] 102 P 534; Bulders' Supply Co. v. Acton \[Fla.\] 47 S 822; Clark v. Deadwood \[S. D.\] 117 NWV 131. \[F. Day.\] 118 NWV 416. \[F. Day.\] 118 NWV 406. \[F. Day.\] 118 NWV 407. \[F. Day.\] 119. \[F. Day.\] 119. \[F. Day.\] 120 NWV 419. \[F. Day.\] 121. \[F. Day.\] 122. \[F. Day.\] 123. \[F. Day.\] 124. \[F. Day.\] 125. \[F. Day.\] 126. \[F. Day.\] 127. \[F. Day.\] 128. \[F. Day.\] 129. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 133. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 133. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 133. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 131. \[F. Day.\] 133. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.\] 131. \[F. Day.\] 131. \[F. Day.\] 132. \[F. Day.\] 133. \[F. Day.\] 134. \[F. Day.\] 135. \[F. Day.\] 136. \[F. Day.\] 137. \[F. Day.\] 138. \[F. Day.\] 139. \[F. Day.\] 139. \[F. Day.\] 130. \[F. Day.

testimony,1 the qualification of experts,2 the admission of proof of experiments,3 the physical examination of plaintiff in a personal injury action,4 the order of proof 5 and the argument of counsel,6 the submission of questions to the jury for special findings,7 the refusal to direct a verdict 8 or to grant a nonsuit,9 or to vacate a voluntary dismissal,10 rulings on motions to reopen a case,11 for a rehear-

could not be disturbed unless manifestly wrong, offer of such proof presenting primary question of competency. American Fidelity of Gowdy, 193 Mass. 68, 85 NE 884. States Security Co. v. Milwaukee Northern R. Co. \[WIs.\] 120 NW 844. 4. Denial of application. Atlantic Coast Line R. Co. v. Dees \[Fla.\] 48 S 28. Retusal 99. Exclusion of witnesses. Atlanta Terra Cotta Co. v. Georgia R. & Elce. Co. \[Ga.\] 64 phy V. Southern Pac. Co. \[Nov.\] 101 P 32. SE 563. Allowing witness to remain in court though others were excluded under the rule. Mathuws' Adm'r v. Louisville & N. R. Co. \[Ky.\] 113 SWV 459. Permitting witness who had violated rule to testify. Hendelman v. Kahan, 50 Wash. 24, 97 P 109. Competency of witnesses. Tergy V. Helen L & R. Co. \[Tor.\] 101 P 204, former opinion \[Or.\] 100 P \[Mont.\] 102 P 310. Competency of nonexpert witness to express opinion. Fear v. Muliins \[Mont.\] 98 P 650; McDoughn v. Williams \[Ark.\] 112 SWV 164; Turner v. Heister, 142 Ill. App. 295; Cleveland Seed American Security & Trust Co., 213 U. S. 257, 63 Law. Ed. ... Allowing Infant witness to animation of witnesses. Minchew v. Natestify. Applebaum v. Bass \[Tex. City. App.\] 118 SWV 173. Form of questions asked witnesses. McLaughlin v. Bradley \[Iovad\] 118 Klieman \[Iovad\] 118 NWV 1088. Latitude al-N NWV 889. Form of questions asked adverse hostile witness. Ryan v. Oshkosh Gaslight Co. \[WIs.\] 120 NWV 244. Form of hypothetical questions to experts. Scurlock v. Boone \[Iovad\] 120 NWV 813. Determining scope, fullness, and distinctness of hypothetical questions. Carroll v. Boston El. R. Co. 200 Mass. 527, 86 NE 793. Allowing leading questions. Birmingham R. L. & P. Co. v. Pitchett \[Ala.\] 48 S 782; Merriweather v. Sayre Mn. & Mfe. Co. \[Ala.\] 48 S 916; Falk v. Klimmerle \[Fla.\] 49 S 504; Minchew v. Vanhunta Lumber Co., 6 Ga. App.\] 154, 62 SE 716; Peebles v. O'Gara Coal Co., 288 Ill. 370, submit special findings or special verdict to jury. Matthews v. Spokane, 50 Wash. 107, 96 P 827. Form of special issues to be sub-House \[Ala.\] 47 S 572; Simeoli V. Derby \[Tex. City. Rubber Co. \[Conn.\] 71 A 646; Indiana Union \[App.\] 119 SWV 893. Trial courts may exercise Trac. Co. v. Pheanis \[Ind. App.\] 85 NE 1040; considerable measure of discretion in appli-McBride v. McBride \[Iovad\] 120 NWV 709; cation of special verdict law (St. 1898, Rutherford v. Iowa Cent. P. Co. \[Iovad\] 121 S 2858), and, unless they thus prejudically NWV 703; Consolidated Gas, Elec. L. & P. Co. \[v. State, 109 Md. 186, 72 A 651; Barriweau v. Charleston Conel. R., Gas & Elce. Co. 81 error affecting substantial rights, should be S. C. 20, 61 SE 1063; Anderson v. Salt Lake & O. R. Co. \[Utah\] 101 P 579; Horton v. Seattle \[Wash.\] 101 P 1091; Klimane v. Conel. \[Khan.\] 101 P 232. Retuning on cross-examination to allow question in effect already answered. United order of the Golden Cross v. Hooser \[Ala.\] 49 S 354. 1. United States Smelting Co. v. Parry \[C. C. A.\] 166 P 407. 2. Atlantic Coast Line R. Co. v. Dees \[Fla.\] 48 S 28; Carroll v. Boston El. R. Co. 200 Mass. 527, 86 NE 793; Theobal v. Shepard Bros. \[N. El.\] 11 A 26; Southern Tel. & T. Co. v. Evans \[Tex. City. App.\] 116 SWV 418; Tow-Ile's Adm'x v. McDonald, Cutler & Co. \[Yt.\] 7 ing 12 to set aside judgments 13 or to open defaults,14 the taxation and apportionment of costs,15 and the allowance of counsel fees 16 in certain cases, the granting 17

Co. \[Vash.\] 101 P 509; Bellingham v. Linck

\[Vash.\] 101 P 843.

12. Refusal to rehear primary election contest. In re Poy \[Pa.\] 73 A 324. Chan-cellor's action in overruling motion for rehearing after final decree. Marx v. District Grand Lodge No. 7, L. O. B, \[Ala.\] 47 S 207.

01. Halilowell v. Darling, 32 App. D. C. 405; Dunn v. Lawrence, 106 Minn, 541, 118 NW 1115; Poff v. Lockridge \[Ok1.\] 98 P 427; Cattus v. Cattus, 37 Pa: Super. Ct. 588. Vaa-cation of dismissal entered by clerk pursuant to rule of court. Poppel v. Culpepper \[Fla.\] 47 S 351. Order vacating order authorizing receiver to execute note and to commence action. Stenbom v. Brown-Cor-liss Engine Co., 137 Wis. 564, 118 NW 308.

Making absolute a rule to open judgment. Zajaczkowski v. Jawer, 36 Pa. Super. Ct. 324. Where case heard on agreed statement of facts, and motion to vacate judgment heard on affidavits with no oral evidence. Appellate court will examine record as if never examined by trial court and will exercise discretion same as trial court. Coun-climb. Co., v. Draper \[Hdaho\] 102 P. T.

14. Cass v. Hutton \[Cal.\] 95 P 493; Utah-Nevada Co. v. De Lamar \[Cal. App.\] 100 P 884; Mutual Reserve Life Ins. Co. v. Ross, 42 Ind. App. 621, 86 NE 506; Millburn v.

Bausher \[Ind. App.\] 86 NE 874; Carton v. Day \[Hlaho.\] 16 Det. Leg. N 234, 121 NWV

129; In re Dunn's Senate \[Minn.\] 119 NWV

130; Nitzh, 133 Mo. App. 256, 113 SWV

131; Nitzh, 133 Mo. App. 256, 113 SWV

132; Harvey v. Gillies. 117 NYS 204; Aaron v. Holmes \[Utah\] 95 P 450; Phillips v. Portage Transit \[Ota.\] 137 Wis. 118 NW

133; Held that court acted well within its discretion in setting aside default and per-miting appellant to answer, and should not be permitted to impeach or undermine its previous ruling by statement inserted in certificate to statement of facts months afterward. Starr v. Long Jim \[Vash.\] 100 P 194. Discretion to relieve against default is not arbitrary, and erroneous exercise thereof is reviewable. Voorness v. Geiser-Hendryx Inv. Co. \[Or.\] 98 P 324. Order reopening default will be reversed where motion is manifestly dilatory. American Pin Co. v. Tepfer, 127 App. Div. 993, 111 NYS 1027. While apellate court will go far to reverse order denying motion to reopen default, it will impose unusually severe terms when defendants' conduct warrants the suspicion that his object is delay. Van Hoven v. Faust Co., 11 NYS 837.

15. See, also, Costs, 11 C. L. 886. Taxing of costs in response to try title to recover land purchased at tax sale, etc. Patton v. Minor \[Tex. Civ. App.\] 117 SW 920. Allowing costs in action against administrator and guardian for accounting. Anderson v. Silcox \[S. C\] 63 SE 123. Costs in equity cases. Mills v. Britton \[Fla.\] 47 S 199 Apportionment of costs in equity case. Converse v. Deep River \[Iowa\] 117 NW 1078. Denial of costs in suit to foreclose mortgage. Way-mire v. Shipley \[Or.\] 97 P 807. Giving or withholding of costs in admitarity. The Eva D. Rose \[C. C. A.\] 166 F 101.

01. Allowance of counsel fees by court of or denial 18 of a motion for a new trial, and the amendment of the grounds of such motions.19

enxuct, 113 NYS 546; Billings v. Charlotte

by charge, and thereupon refusing new trial. Observer, 150 N. C. 540, 64 SE 435; Angus v. Vamba, 50 Wash. 353, 97 P 246; Best v. Seattle, 50 Wash. 633, 97 P 772. Unless evidence plainy and palpably supports verdict. Hoven v. Gevhi \[Ala.\] 49 S 676; Woodrov v. Hall \[Ala.\] 47 S 570; Sherrer v. Enterprise Banking Co. \[Ala.\] 49 S 779; Powers-Simpson Co. v. Delaunay, 105 Minn. 334, 117 NWP 503. Where is substantial conflict of evidence. Farrell Co. v. Ihrig, 50 Wash. 281, 97 P 52. Order setting aside verdict not contrary to evidence, reversed. Convey v. Finn, 130 App. Div. 440, 114 NYS 864; Sturenberg v. Spero, 118 NYS 737. On appeal from order granting new trial on ground that plaintiff's evidence did not make case for jury, court must assume as facts of case all that evidence in plaintiff's behalf tended to prove. Bird v. Blackwell, 135 Mo. App. 23, 115 SW 487. Ruling that there is no evidence to support verdict may be reviewed, since court does not in such case weigh evidence. Crawford v. Kansas City Stockyards Co., 215 Mo. 394, 114 SWV 1057. Order held to show that motion was sustained on ground that there was no evidence and that instruction in nature of demurrer to evidence should have been sustained. Id. Assigning of reason for sustaining motion is not a mere form, and party should not be deprived of right of review by use of incorrect form of expression. Id.

Grant by different judge: Judge who did not preside at trial has not that discretion in relation to grant or refusal of new trial upon the evidence, with which appellate court is reluctant to interfere. Monahan v. National Reality Co., 4 Ga. App. 680, 62 SE 127.

18. Chandler v. Mutual Life & Industrial Ass'n, 131 Ga. 82, 61 SE 1036; Merchants' & Miners' Transp. Co., V. Corcoran, 6 Ga. App. 654, 62 SE 130; Central of Georgia R. Co. v. Mote, 131 Ga. 166, 62 SE 164; Kelly v. Mote, 131 Ga. 166, 62 SE 639; Beaty v. Gepted Masons v. Oshlets \[Ga.\] 68 SE 621; Sears \[Ga.\] 64 SE 321; Western & A. R. Co. v. Cotter \[Ga.\] 64 SE 474; National Fire Ins. Co. v. Van Giesen \[Ga.\] 64 SE 565; McManus v. Thing, 202 Mass. 11, 88 NE 442; Bowen v. Webb, 37 Mont. 479, 97 P 839; Lehane v. She 1103. Whether jury in fact considered Seaton v. Mullins \[Ment.\] 98 F 565; Billings v. Charlotte Obscerver, 150 N. C. 540, 64 SE 435; Tinad v. Sublett \[S. C.\] 65 SE 866; Voodrov v. Hall \[Ala.\] 47 S 570; Sherrer v. Enterprise Banking Co. \[Ala.\] 49 S 779; Powers-Simpson Co. v. Delaunay, 105 Minn. 334, 117 NWP 503. Where is substantial conflict of evidence. Farrell Co. v. Ihrig, 50 Wash. 281, 97 P 52. Order setting aside verdict not contrary to evidence, reversed. Convey v. Finn, 130 App. Div. 440, 114 NYS 864; Sturenberg v. Spero, 118 NYS 737. On appeal from order granting new trial on ground that plaintiff's evidence did not make case for jury, court must assume as facts of case all that evidence in plaintiff's behalf tended to prove. Bird v. Blackwell, 135 Mo. App. 23, 115 SWV 487. Ruling that there is no evidence to support verdict may be reviewed, since court does not in such case weigh evidence. Crawford v. Kansas City Stockyards Co., 215 Mo. 394, 114 SWV 1057. Order held to show that motion was sustained on ground that there was no evidence and that instruction in nature of demurrer to evidence should have been sustained. Id. Assigning of reason for sustaining motion is not a mere form, and party should not be deprived of right of review by use of incorrect form of expression. Id.

Grant by different judge: Judge who did not preside at trial has not that discretion in relation to grant or refusal of new trial upon the evidence, with which appellate court is reluctant to interfere. Monahan v. National Reality Co., 4 Ga. App. 680, 62 SE 127.

18. Chandler v. Mutual Life & Industrial Ass'n, 131 Ga. 82, 61 SE 1036; Merchants' & Miners' Transp. Co., V. Corcoran, 6 Ga. App

## Appendix A Appendix and Review 13F2.

13 Cur. Law.

(SS 13F) 2. Questions of fact. 20-- See 11 C. L. 217--Rulings, such as upon motion for continuance, motion to dissolve injunction, and the like, involve questions of fact, but, being deemed to rest primarily on discretion, are treated elsewhere. 21 Generally speaking, questions of fact will not be reviewed, 22 unless decision below

reported, but, if it appears that there was \[C. A.\] 163 F 194; Waters Pierce Oil Co. v. no competent evidence to support it finding Texas, 212 U. S. 86, 112, 65 Law. Ed. --, falls. St. Pierre v. Foster & Co. \[N. H.\] 70 A Verdict unless unfaxingly wrong. La-289. Vhere no motion at trial for judgg-ment of nonsuit or directed verdict. Oldand Verdict not so palpably wrong as to shock v. Oregon Coal & Nav. Co. \[Or.\] 102 F 56. Ruling will not be disturbed if as reasonable men jury could have found such verdict. Wilson v. Jernigan \[Fla.\] 49 S 846. Will not be reversed unless, after allowing all reasoningable presumptions of its correctness, prepondence of evidence against verdict is as decided as to clearly convince appellate court that it is wrong and unjust. Id. Where on second trial after reversal jury found for same party on substantially same evidence, and was evidence to authorize it. Southern R. Co. v. Scott \[Ga.\] 65 SE 143.

19. Denial of motion to amend. Soules v. Brotherhood of American Yaemen \[N. D.\] 120 NW760.

01. Search Note: See Appeal and Error Cont. Dig. $ 3893-4028; Dec. Dig. $ 887-1024; 3 Cyc. 345-383; 2 A. & E. Enc. P. & P. $ 90.

01. See $ 13f, 1, ante.

01. American Ins. Co. v. Dannehower \[Ark.\] 115 SW 950; Brown & Co. v. McGnight \[Ark.\] 118 SW7 409; South Georgia R. Co. v. Niles, 131 Ga. 599, 62 SE 1042; Cowart v. Powell, 5 Ga. App. 43, 62 SE 644; Hercules Mfg Co. v. Robinson, 5 Ga. App. 43, 62 SE 672; Atlanta Skirt Mfg. Co. v. Garrett, 5 Ga. App. 819, 63 SE 920; Pendley Brick Co. v. Hardwick & Co. \[Ga. App.\] 64 SE 664; Fraver v. Harper House Co., 141 III. App. 390; Pittsburgh, etc., R. Co. v. Lynch \[And. App.\] 87 NE 40; Emrich Furniture Co. v. Byrnes \[Ind. App.\] 87 NE 104; Sieberts V. Spangler \[Iowa\] 118 NW 291; Zimmerman v. Finne- gan \[Iowa\] 118 NW 312; Ferringer v. Ung. Bank v. Martin \[Ky.\] 114 SW7 319; Crowley Oil Oil & Mineral Co., 122 La. 44, 47 I 87 163; Stress v. Clark, 132 Mo. App. 537, 112 SW7 526; Montgomery v. Wise \[Mo. App.\] 120 SW7 100; Supreme Commander, U. Q. q. C. v. Doneghey \[N. H.\] 72 A 419; Hogan v. Rosenthal, 127 App. Div. $12, 111 NYS 676; Bard v. Gluck, 112 NYS 487; Endres v. International R. Co., 129 App. Div. 785, 114 NYS 681; Free v. Champion Flbpe Co., 150 N. C. 736, 64 SE 772; Farmers' & Merchants' Bank v. Germania Life Ins. Co., 16 N. C. 710, 64 SE 902; Peterson v. Conlan \[N. D.\] 119 NW 367; Eaton v. Blackburn \[Or.\] 96 P 870; Eliff v. Oregon R. & Nav. Co. \[Or.\] 99 P 76; Columbia, N. & L. R. Co. v. Laurens Coton Mills \[S. C.\] 61 SE 1088; Slawson v. Equitable Fire Ins. Co. \[S. C.\] 62 SE 782; Grand Fraternlty v. Melton \[Tex.\] 117 SW78; Simpson Bank v. Smith \[Tex.\] 117 SW7 445; Galveston, etc., R. Co. v. Worth \[Tex. Civ. App.\] 116 SW7 365; Zlehme v. Muller \[Tex. Civ. App.\] 117 SW7 101; Equitable Life Assur. Soc. v. Kitts' Admir \[Va.\] 63 SE 455; Red v. Carnahan \[V. Va.\] 64 SE 108; Baker v. Robbins, 51 Vash. 467, 99 P 1; Neel is wholly unsustained by the evidence, the wording of the rule varying somewhat in the various jurisdictions.23 Every presumption favors the correctness of the

Chicago & N. W. R. Co. v. Chicago Me-

Lewis v. Smith \[CoLo.\] 101 P 762; Valdosta

chinese's Institute, 239 Ill. 197, 87 NE 933;

Mercantile Co. v. White \[Fla.\] 47 S 961;

City of Wankegan v. Sharafnskis, 135 Ill.

Love v. Crawford, 131 Ga. 182, 61 SE 1155;

App. 436; Eckels v. Cooper, 136 Ill. App. 60;

Chicago City R. Co. v. Crawuf, 136 Ill. App. 49;

V. Valdosta Foundry & Mach. Co., 4 Ga.

66; Chicago City R. Co. v. Donnelly, 136 Ill. App. 733, 62 SE 433; Lee v. Winkles, 131 Ga.

App. 204; Illinois Steel Co. v. Paige, 136

577, 62 SE 820; Dub v. Bryson, 6 Ga. App.

III. App. 410; Foley v. Everett, 143 Ill. App. 211, 62 SE 1001; Jordan v. Farmers' & Mer.

250; Harper v. Black Diamond Coal Co.,

142 Ill. App. 554; Baker v. Fritzits, 143 Ill.

Chark v. State, 131 Ga. 693, 68 SE 132;

App. 465; Cincinnati, etc., R. Co, v. Cook

\[Ind. App.\] 88 NE 76; Ellerman v. Farmer

App. 740, 63 SE 625; Leathers v. McGGuire

\[Ky.\] 118 SWV 289; Illinois Cent. R. Co. v. Smith \[Ky.\] 118 SWV 933; Burch v. Bernard

\[Minn.\] 120 NW 38; Olson v. Plike \[Minn.\] 120 NW 38; Olson v. Plike \[Minn.\] 120 NW 38; Olson v. Plike \[Minn.\] 120 NW 378; Olson v. Plike \[Minn.\] 121 NW 39; Earree v. Cape Garra-

Co. \[Minn.\] 122 NW 9; Earree v. Cape Garra-

deau, 132 Mo. App. 182, 112 SW 724; Parlello v. Missouri Pac. R. Co., 217 Mo. 645;

117 SWV 1183; Herndon V. Springfield \[Mo.\]

App.\] 119 SWV 467; Olmstead v. Noll \[Neb.\]

117 NW 102; Piering v. Dunham Mrg. Co.,

113 NWYS 713; Choctaw, O. G. R. Co. v.

\[Ga.\] 63 SE 63; Georgia Coast & P. R. Co.

Burges \[OkL!\] 97 P 271; Hickey v. Booth

\[R. I.\] 72 A 829; Galveston, H. & N. R. Co.

\[Gan.\] 64 SE 837; Jones v.

\[R. I.\] 72 A 829; Galveston, H. & N. R. Co.

V. Olda \[Tex. Civ.\], Appl. 113 SW 787; San

Farrar Lamber Co. v. Johnstone & Co. (Ga.

Antonio & A. P. R. Co. v. Spencer (Tex. Civ.).

App.\] 66 SE 60; Chandler v. Griffin \[Ga.\]

App.\] 119 SWV 716; McCrorey v. Thomas

65 SE 128; Valley Lumber Co. v. McGluvery

\[Va.\] 48 SE 1011; Goshorn v. Wheeling

\[Madol & Foundry Co. \[W. Va.\] 64 SE 22;

\[102 P 378; Leggett v. Evans \[Idaho\] 102 P Pfister v. Milwaukee Free Press Co. \[Wia.\]

486; Carroll v. Rabberman, 240 Ill. 450, 88

121 NW 938. Verdict not presumed based

NE 956; Marlon Elle. & St. R. Co. v.

on passion. Yergy v. Helena L. & R. Co.

\[Mont.\] 102 P 310. Requiring large remitt-

titur not proof of passion or prejudice.

Graye v. Everett, 142 Ill. App. 250. Excessive verdict will be set aside. Olson v.

\[Ind.\] 88 NE 661; Emrich Furniture Co. v. Nilson, 142 Ill. App. 436; Billings v. Char-

\[Iotte Observer, 150 N. C. 540, 64 SE 435.

Or reduced. St. Louis, etc.,
\[Neb.\] 121 NYW 431; Racine-Sattley Co. v. Hansen \[Neb.\] 121 NWW 573; Goos v. Chi- eago, B. & Q. R. Co. \[Neb.\] 121 NYW 683; Hobbs v. Blanchard & Sons Co. \[N. H.\] 70 A 1082; Orenfe v. Saverese, G1 Misc, 88, 118 NYS 175; Bosolan v. Hubbard, 129 App. Div. 687, 118 NYS 1084; Henderson-Snyder Co. v. Polk, 149 N. C. 164, 62 SE 904; Choctaft, 149 N. C. 164, 62 SE 904; Choctaft, 149 N. C. 164, 62 SE 904; Choctaft, 149 N. C. 164, 62 SE 904; Choctaft, 149 N. C. 164, 62 SE 916; Choctaft, 149 N. C. 164, 62 SE 917; Chicago, 149 N. C. 164, 62 SE 918; Orenf e. 164, 62 SE 919; Orenf e. 164, 62 SE 919; Orenf e. 165, 62 SE 920; Orenf e. 166, 62 SE 921; Orenf e. 167, 62 SE 922; Orenf e. 168, 62 SE 923; Orenf e. 169, 62 SE 924; Orenf e. 169, 62 SE 925; Orenf e. 169, 62 SE 926; Orenf e. 169, 62 SE 927; Orenf e. 169, 62 SE 928; Orenf e. 169, 62 SE 929; Orenf e.

### 13 Cur. Law.

APPEAL AND REVIEW $ 13F2.

Its effect becomes a matter of law, and the helium, but it, even in favor of right of an aspellant to recover. First Nat. Bank

v. Farmers' & Merchants' Nat. Bank \[Ind.\]

86 NE 417. Is duty of appellate court, un-

lkke supreme court, to consider and weigh the evidence, and to reverse judgment not

140 Ill. App. 417; Hagen v. Schlueter, the evidence, and to reverse judgment not

sustained by evidence. Society of St. Stephen the Martry v. Sikorski, 141 Ill. App. 1.

Duuty of appellate court as to reviewing

weight of evidence in municipal court is

same as its duty with regard to other insil

plus courts and is not abrogated by mu-

nic'pal court acts. Chicago City R. Co. v. Groosheim, 141 Ill. App. 77.

Credible of witnesses will not be

passed on by reviewing court. Birmingham

ham R. L. & P. Co. v. Jung \[Ala.\] 49 S 434;

St. Louis Southwestern T. Co. v. Pearson

\[ArArk.\] 114 SW SW 211: Red River Levee Dust

No. 1 v. Russell \[Ark.\] 114 SW 213; Scovell

v. Pfeffer \[Iowa\] 117 NW 684; Readron v.

St. Louis & S. P. R. Co., 215 Mo. 105, 114 SW

961; Moore v. Normal School \[Bogard of

Regents, 215 Mo. 705, 115 SW 6; Miller v.

Missouri Fire Eric Co. \[Mo.\]. 119 SW SW

976; Bowen v. Webb, 37 Mont. 479, 97 P 889;

Fitch v. Martin \[Neb.\] 122 NW 50; Puczko

v. Kovacs, 112 NYS 1037; Gabeler v. Brocko

lyn Hefights R. Co., 114 NYS 855; Shaw v.

Shaw, 36 Pa. Super. Ct. 121; Stiff v. Havens

\[R. I.\] 69 A 553; West v. Houston 011 Co.

\[Tex. Civ. App.\] 120 SWW 228; Williams v.

Hennelled \[Tex. Civ. App.\] 120 SWW 567;

Equitable Life Assur. Soc. v. Kittel' Adm'

\[Va.\] 48 SE 455; Metropolitan Life Ins. Co. v. DeVaut's Adm'. \[Va.\] 63 SE 982.

Testimony changed to meet defects pointed out

on reversal arouses suspicion and demands

closest scrutiny and if dishonest cannot be

allowed to sustain verdict. Brennan v. New

York, 130 App. Div. 267, 161 NYS 578.

Unless so centenary to evidence as to de

note passion or prejudice. See, also, last

preceding note, Damages. Bank of

Latham v. Milligan \[Towa\] 118 NW 404;

Supreme Lodge, K. P. v. Bradley \[Ky.\] 117 SWW 275; Miller v. Missouri Fire Brick Co.

\[Mo. App.\] 119 SWW 976; Blum v. Nebraska

\[Jowa Creamery Co. \[Neb.\] 117 NW 104.

Will be set aside where special findings

show jury influenced by mistake or imporpor

per conditions. Tate v. Missouri Pac. R. Co., 143 Ill. App. 289.

**Unless manmetrity against the weight of the evidence.** Montgomery Trac. Co. v.

Kraabe \[Ala.\] 48 S 501; Houston v. Davis

\[Ala.\] 49 S 869; Donelson v. East, etc., R. Co., 235 Ill. 625, 85 NE 917; Drum v. Capps,

240 Ill. 524, 88 NE 1020: Village of Odin v.

Nichols, 138 Ill. App. 206; Boester v. Kuhl-

engel, 136 Ill. App. 17; Fairview Fluor &

Leasl Co. v. Conkle, 136 Ill. App. 58; Chicago

City R. Co. v. Crautz, 136 Ill. App. 66; Chiap

66; Chiap

cago City R. Co. v. Greinke, 138 Ill. App. 77;

Brink's Chicago City Exp. Co. v. Brophy.

136 Ill. App. 145; Chicago City R. Co. v.

Coolal Co., 143 Ill. App. 306; Pipes v. Ameri-

Dennelly, 136 Ill. App. 204; Mayer v. McCann, 136 Ill. App. 501; Lane v. Trimble

Klockty V. American Car & Foundry Co., 143 Ill. App. 137 Ill. App. 28; Vromackes v. Miller, 137 Ill. App. 508; Illinois & Texas Oli Co. v.

Goerber, 137 Ill.

**Verdict based on conflicting evidence.** Adm'r \[Ky.\] 114 SWW 328; Kentucky & I Birmingham R., L. & P. Co. v. Pritchett \[Ala.\] 49 $ 782; Johnson V. Miller \[Ala.\] 49 192; Ohio Valley Tie Co. v. Harvey's Adm'r.

S 858; McDonough v. Williams \[Ark.\] 112 11 SWW 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 129; Unon Sawmill Co. v. Felsenthal Land & Townsite Co. \[Ark.\] 112 SW 205; St St Stevenson V. Moore \[Ky.\] 118 SW 951; Louis, etc., R. Co., V. Coalson \[Ark.\] 112 SW 739; Louisiana & A. R. Co. v. Hobbs \[Ark.\] 113 SWV 113 SWV 46; Hamlter v. Brown \[Ark.\] 113 14 SWV 1014; St. Louis S. W. R. Co. v. Phoenix \[Ala.\] 49 192; Ohio Valley Tie Co. v. Harvey's Adm'r.

S 858; McDonough v. Williams \[Ark.\] 112 116 SWV 278; Citizens' Fire Ins. Co.

SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 124; Unon Sawmill Co. v. Felsenthal Land & Townsite Co. \[Ark.\] 112 SWV 205; St Stevenson V. Moore \[Ky.\] 118 SW 951; Louis, etc., R. Co., V. Coalson \[Ark.\] 112 SWV 739; Louisiana & A. R. Co. v. Hobbs \[Ark.\] 113 SWV 113 SWV 46; Hamlter v. Brown \[Ark.\] 113 14; St. Louis S. W. R. Co. v. Phoenix \[Ala.\] 49 192; Ohio Valley Tie Co. v. Harvey's Adm'r.

S 858; McDonough v. Williams \[Ark.\] 114 SWV 278; Citizens' Fire Ins. Co.

SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 129; Unon Sawmill Co. v. Felsenthal Land & Townsite Co. \[Ark.\] 114 SWV 205; St Stevenson V. Moore \[Ky.\] 115 SWV 951; Louis, etc., R. Co., V. Coalson \[Ark.\] 112 SWV 789; Unon Sawmill Co. v. Hospell's \[Ark.\] 115 SWV 113; Thomas V. Charles \[Ky.\] 115 SWV 113 SWV 46; Hamlter v. Brown \[Ark.\] 115 152; Police Jury v. Texas & P. R. Co., 122

SWV 1014; St. Louis S. W. R. Co. v. Phoenix \[Ala.\] 49 192; Ohio Valley Tie Co. v. Harvey's Adm'r.

S 858; McDonough v. Williams \[Ark.\] 116 SWV 278; Citizens' Fire Ins. Co.

SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 129; Unon Sawmill Co. v. Felsenthal Land & Townsite Co. \[Ark.\] 112 SWV 205; St Stevenson V. Moore \[Ky.\] 117 118 SWV 951; Louis, etc., R. Co., V. Coalson \[Ark.\] 112 SWV 173; Louisiana & A. R. Co. v. Hobbs \[Ark.\] 113 SWV 46; Hamlter v. Brown \[Ark.\] 113 14; St. Louis S. W. R. Co. v. Phoenix \[Ala.\] 49 192; Ohio Valley Tie Co. v. Harvey's Adm'r.

SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 164; Tebbs v. Wiseman \[Ark.\] 112 SWV 165; Unon Sawmill Co. v. Felsenthal Land & Townsite Co. \[Ark.\] 112 SWV 205; St Stevenson V. Moore \[Ky.\] 117 118 SWV 951; Louis, etc., R. Co., V. Coalson \[Ark.\] 112 SWV 183; Thomas V. Charles \[Ky.\] 119 SWV 113 SWV 46; Hamlter v. Brown \[Ark.\] 113 152; Police Jury v. Texas & P. R. Co., 122

SWV 1014; St. Louis S. W. R. Co.

- 13 Cur. Law. **APPEL AND REVIEW $ 13F2.** 269

findings below,24 and such presumption is strengthened by the approval of the trial judge 20 or by concurrence of several verdicts on successive trials,26 or the concur-South Texae Tel. & T. Co. v. Tabb \[Tex.\] bill of exceptions will not be treated as Civ. App.J 114 SVW 448; Missouri, K. & T. R. coquivalent of findings of fact and conclu-Co. v. Craig \[Tex. Civ. App.\]. 114 SVW 850; stons of law, law making no provisione for Hill v. Houseer \[Tex. Civ. App.\]. 116 SVW 112; such opinion. Id. Any reasonable infer-Starkey v. Western Union Tel. Co. \[Tex.\] once consistent with verdict should be Civ. App.\]. 115 SVW 851; Graves v. Bullen adopted. Grand Fraternity v. Melton \[Tex. \[Tex. Civ. App.\]. 115 SWW 117; Kack v. Civ. App.\]. 111 SVW 867; Schnur v. Phillips, Woodward \[Tex. Civ. App.\]. 116 SVW 76; 116 NYS 862. Court will sustain in favor of Southern Tel. & T. Co. v. Evans \[Tex. Civ.\] verdict every inference of fact that can be App.\]. 116 SVW 418; Freeman v. Davis \[Tex.\].

- 117 SVW 186; International & G. in light most favorable to contention of N. R. Co., v. Williams \[Tex. Civ. App.\]. 118 succesful party. Cameron v. Lewiston, etc. SWV 158; Williams v. Hennefeld \[Tex. Civ.\].
- 118 SVW 167; Chesapeake & O. R. Co. given at trial not to be considered in aid v. Williams, 108 Va. 689, 62 SE 796; Warwick v. Hitchinging, 50 Wash, 140, 67 B60; by omission therein or rebut presumption Shepard v. Minneapolis Threshing Mach's \[In favor of general verdict. Emrich Furnl-Co., 50 Wash. 242, 97 P 57; Ottomerl v. Hornburg, 50 Wash. 316, 97 P 235; Murray v. Seattle Elec. Co. 50 Wash. 444, 97 P 458; Pelton v. Smith, 50 Wash. 459, 97 P 460; National Bank of Commerce v. Gousar, 51 Wash. 204, 98 P 607; Goerig v. Peterson \[Wash.\]. 101 P 829; Rosenberg v. McKinney, 138 Wis. 381, 120 NWP 230; Ford v. Freeman \[VWs.\]. 120 NWP 234; Pittsburg R. Co., Silkivan \[C. A.\] 166 F 749; Levy v. Larson \[C. C. A.\] 167 F 110; Kinney v. Hanley, 169 F 1021. Supreme court will not go further than to determine whether success-ful party has given sufficient legal evidence to justify verdict in his favor regardless of adversary's evidence, except in so far as same may tend to support successful party's case. Dickinson v. Hahn \[S. D\]. 119 NNV 1034, vrg 19 S. D., 525, 104 NWP 247. Where evidence is not conflicting, it will be reviewed for purpose of ascertaining what it established. Stearns v. Hazen \[Colo.\] 101 P 339.
- 24 Birmingham R., L. & P. Co. v. Jung \[Ala.\] 49 S44; Fisher v. Frank, & Cal. App. 472, 97 P 85, Evidence must be given its strongest probativse force. Wells v. Bentley \[Ark.\] 113 SWV 639. Evidence of successful party must be taken as true. Kirkpatrick v. Aetna Life Ins. Co. \[Iowa\] 117 NVP 1111; Muller v. Shuffeldt, 114 NYS 1012; Millev v. Missouri Fire Brick Co. \[Mo. App.\]. 119 SVW 976; Goldberg v. Hageman & Co., 60 Mlec. 107, 111 NYS 679; Roberts v. Neale, 134 Mo. App. 612, 114 SWV 1120. Evidence must be viewed in light most favorable to findings of jury. St. Louis, etc., R. Co. v. Brabbason \[Ark.\] 112 SVW 222. Must take view of evidence most favorable to successful party. Priest v. Hodges \[Ark.\] 118 SVW 253; Heitman v. Pacific Elec. R. Co. \[Cal. App.\] 102 P 15; Maynard v. Royal Worcester Correct Co., 200 Mass. 1, 85 NE 877. Every conflict in evidence must be resolved in favor of successful party, and that conclusion which most favorable view of evidence will warrant must be drawn in support of judgment. San Antonio Irr. Co. v. Deutschmann \[Tex.\] 114 SVW 1174. Where there are no findings of fact or conclusions of law in record, evidence must be considered from standpoint most rent finding of two lower courts.\[27\] The foregoing rules apply to the findings of the trial judge in law cases,\[28\] and to the findings of referees,\[29\] auditors,\[30\] masters,\[31\]

Krueger, 135 III, App. 432; City of Waukee-gan v. Sharafinski, 135 III. App. 436; Ames v. Snavevicy \[Kaan\]. 96 P 943; Caley v. Mills \[Kan\]. 100 P 69; Harivston v. Umited R. Co. \[Mo. App.\] 119 SWV 481; Wilcox v. Rhode Island \[Co. \[R. I.\] 70 A 913; Williams v. Shaw \[R. I.\] 71 A 207; Hilcy v. Rhode Island Co. \[R. I.\] 71 A 592; Lynch v. Rhode Island Co. \[R. I.\] 71 A 593; Sullivan v. O'Loughlin \[R. I.\] 72 A 220; Oates v. Union R. Co. \[R. I.\] 72 A 724; Stubbs v. Marshall \[Tex. Civ. App.\] 117 SWV 1030; Williams v. Bartz \[Vash\]. 100 P 186.

28. Second verdict on same facts. Valdosta Mercantile Co, v. White \[Fla.\] 47 S 961. Where two juries have agreed on amount of damages. Chicago Union Trac. Co. v. Mee, 136 II. App. 98. Where two juries have agreed, court will be slow to set aside verdict as against weight of evidence. Crane v. Schaefer, 140 III. App. 647. Where two juries have determined main issue same way, verdict for money should not be sent back for new trial if it can be avoided. Alternative new trial or remittittur ordered. Norden v. Duke, 129 App. Div. 158, 113 NYS 494. Where two juries have reached same conclusion and same has been each time sustained by trial court. Atchison, etc., R. Co. v. Lloyd \[Kan.\] 100 P 271. Third verdict in favor of same party will not be set aside as against weight of evidence unless evidence clearly insufficient to support it. Souchev v. Karr \[Neb.\] 120 NW 210. Second concerning verdict on same state of the evidence set aside as not being supported by, and as contrary to weight of evidence. Brink v. North Jersey St. R. Co. \[N. J. Law\] 71 A 1120. A verdict based upon Improbable, contradictory and unreasonable testimony and reluctantly approved by trial court solely because three juries had found same, cannot be sustained no matter how many juries have found it. Atchison, etc., R. Co. v. Wiley \[Tex. Civ. App.\] 118 SWV 1127. Under Civ. Code Prac. $ 341, providing that not more than two new trials shall be granted to a party on ground that verdict is not sustained by evidence, where have been three verdicts upon substantially same evidence for same party, third verdict will not be disturbed because not supported by, or clearly against weight of the evidence. Louisville & N. R. Co. v. Daniel \[Ky.\] 115 SWV 804, rehearing denied \[Ky.\] 119 SWV 229. Rule held to obtain although either or both of first two verdicts were set aside for errors of law appearing in record. Louisville & N. R. Co. v. Daniel \[Ky.\] 115 SWV 804, rehearing denied \[Ky.\] 115 SWV 804, rehearing denied \[Ky.\] 118 SWV 222. Where first verdict was reversed on appeal because not supported by evidence, and second was set aside by trial judge on same ground, third with not be disturbed. Mobile & O. R. Co. v. Morrow's Adm'r \[Ky.\] 112 SWV 639. Trial in which jury disagrees will not be considered in determining number of verdicts. Louisville & N. R. Co. v. Daniel \[Ky.\] 115 SWV 804, rehearing denied \[Ky.\] 119 SWV 229. Statute does not preclude setting aside any number of verdicts for errors of law & Iron Co. v. Chesterfield Coal Co Co. \[C. C. A.\] 160 F 832.

Sence of finding of the ultimate fact. South Chicago Elevector Co. v. United Grain Co. IC.

Findings on questions of fact conclusive.

Arkansas Cent. R. Co. v. Janson \[Ark.\] 119

trled by court without jury, and there are

SW 648; Bone v. Hrayes, 154 Cal. 159, 99 P 172; United Inv. co. v. Los Angeles Interum-

clause as to all questions of fact. Schmid

ban R. Co. \[C.\]. App.1 101 P 84; Grelvat v.

Gowdy \[Conn.\] 71 A 555; McNill v. Water-

bvry \[Conn.\] 72 A 672; H. W. Metehl Co. v.

Martin \[Fin.\] 47 B 821; J. M. High Co. v.

Warrant by evidence. Montgomery v.

Adams Exp. Co., 5 Gn. App. 863, 68 SE 125; Peach River Lumber Co. \[Tex. Civ. App.\]

In Ye Moore \[Tow\] 118 NW 879; Oliver v.

Kneedler \[Lowal\] 119 W 875; Morris v.

trial court are not acquessed in on appeal,

Morris \[Kan.\] 101 P 1020; Ross v. Thomas

(ISr.) 118 SW 943; Webster v. Howcock, 124

latements of facts. Maury v. McDonald

La. 365, 47 B 853; Succession of Gabbisso, 122

Laz. 824, 48 S 277; Nissen v. Farquhar \[La.\]

of facts, though filed by trial justice volun-

48 S 886; State v. Joyce \[Laz.\] 49 S 216; Coul:

tarily, and without request of either party,

ston v. Baltimore, 109 M 271, 71 A 590;

Fope v. Whitridge \[Md.\]. 73 A 81;

of fact made under Rev. Laws, 159, & 23,

Porter v. Howse, 202 Mass, 64, 88 NE 445;

and will not be set aside unless plainly

Allem v. Masser \[Mich.\] 16 Det. Leg. N 435,

wrong. Howe v. Howe, 199 Mass. 698, 85 NE

122 NW 88; Diamond Rubber Co. v. Hans, 105

345. Opinion of trial judge analyzing facts

Min. 249, 117 NW 504; Bernlick v. McClure

\[Minn.\] 119 NW 247; Kingman-St. Louis

Implement Co. v. Bantley Bros. Hardware

1901, p 570; as to review by appellate court

Co. Int. App. 118 SW 500; Bradbury v. Dor.

to determine if facts found support judg-

ml \[Mo. App.\] 119 SW 505; Bienchius v. Randolph

\[Co. C. A.\] 169 F 598. Decision of trial judge

\[Neb.\] 118 NW 127; In rc MeShane's Estate

as to whether there was sufficient evidence

\[Neb.\] 129 NW 1018; Supreme Commander

to go to jury on particular issue must prevail

W. O. G. C. v. Dranges \[N.\]. 12 A 419;

unless shown by record to be clearly wrong.

Poanessa v. Ruh \[N. J. Law\] 73 A 113; Hathi-

Schefelbein v. Fidelity & Casualty Co.

orn v. Natural Corbionic Gas Co., 134 N 7. S26, \[Vris.\] 132 NW 893; Clemons v. Chicago, etc.

87 NE 504; Huber v. Klebold Press, 112 N 878; R. Co., 137 Wis. 131 NW 102; Murphy v.

293; Norden v. Duke, 129 App. Div. 156, 113

Herold Co., 137 Wis. 609, 119 NW 294. Where

XYS 494; Morgan v. Whalen, 113 W 1789;

trial court finds that evidence is insufficient

Bascombe v. Marshall, 129 App. Div. 516, 113

to warrant finding on particular issue, court

NYS 891; McCormack v. O'Connor, 62 Misca.

of appeals cannot render judgment upon

297, 114 XYS 1002; Budor of Long Island v.

contrary finding unless evidence is such as

Gregory, 118 NFS 809; Marler-Dalton-Gilmer

to warrant such contrary finding as matter

Co. v. Wadsboro Cothing & Shoe Co. 150

of law. Beall v. Chatham \[Tex. Civ. App.\]

N. C. 519; 64 SE 865; In rc MeChana's Estate,

117 NW cut Fire Ins. Co., 200 Mass. 338, 86 NE 787.

In view of Gen. St. 1902, 838, 86 NEW 787.

court to take judicial notice of public quditatus of the several states as printed by authority of state enacting same, held duty of supreme court to consider statutes of foreign state as they really were, regardless of erroneous finding of fact on the subject by lower court. Appeal of Woodward \[Conn.\] 70 A 453. Rule giving great weight to findings of fact does not preclude full investigation of evidence to ascertain if general finding is consistent therewith. Berry v. Colborn \[Vv. Va.\] 64 SE 636. Findings reversed where court overlooked conclusive documentary evidence. McLaughlin v. Roscholzon, 114 XYS 10. Supreme court may set aside judgment of court below based upon question of fact if clearly wrong. Commercial Mut. Ace. Co. V. Davis, 213 U. S. 245, 53 Law. Ed. --. Finding not authorized by pleadings is not controlling. Galvin v. McConnell \[Tex. Civ. App.\] 117 SW 211. Findings not binding when result of mistake or if evidence justifies different result. Grace v. Gill \[Mc. App.\] 116 SW 442. On appeal to supreme court from judgment of circuit court given under St. 1898, 8 769, on appeal from municipal court, circuit court's determination as to facts should not be disturbed unless contrary to clear preponderance of evidence. Luckew v. Beetger \[Wis.\] 121 SVV 649. Determination by circuit court of issues of fact by application of wrong rules of law Is not, however, supported by such presumption of correctness. Ed. Although judge is not disqualified by relationship to attorney, where finding of fact was upon close conflict of testimony, apellate term may exercise its right under municipal court act 826 and direct new trial to avoid suspicion of unfairness. Zambetti v. Garton, 113 NYS 804.

If there is any substantial evidence to support them. Postal Tel. Cable Co. v. Beal \[Ala.\] 48 S 676: Hoffman-Marks Co. v. Spiles, 154 Cal. 111, 87 P 152; Aydelotte v. Billing, 8 Ccl. App. 673, 87 P 698; Mackel v. Nolan \[Cal. App.\] 87 P 118; In re Halls's Estate, 154 Cal. 154 Cal. 527, 98 P 269; Bone v. Hayes, 154 Cal. 759, 99 P 172; Bollinger V. Bollinger, 154 Cal. 552, 99 P 186; Rambo v. Armstrong \[Col.\] 525, 156; N Eque. 157, 158; Mills v. Britt \[Fla.\] 47 S 789; Hixon v. Callaway, 5 Ga. App. 416, 82 SE 518; Bowers v. Cottrell, 15 Idaho 221, 96 P 386; Priest v. Dodsworth, 143 Ill. App. 215; Ziffer v. Funkhouser, 42 Ind. App. 428, 85 NE 884; Hill v. Kersetter \[Ind. App.\] 88 NE 897; Hixon v. Zebater \[S. D.\] 120 WY 777; Springman v. rehearing denied \[Ind. App.\] 87 NE 965; Unger v. Mellinger \[Ind. App.\] 88 NE 74; Vise v. Wise \[Ind. App.\] 88 NE 399; Cott v. Lawrenceburg Lumber Co. \[Ind. App.\] 88 NE 720; Honey v. Guillaume \[Ind.\] 88 NE 893; Cott v. Smidt v. Benegna \[Howard\] 118 NW 433; Endres & Co. v. Schlueter \[Iowa\] 118 NW 429; Dallas County v. Thornley \[Iowa\] 118 NW 434; Endles v. Cottrell v. Britt \[R.\] 418; Perkins v. Gibbs \[Minn.\] 121 NWV 605; Christians v. Christians \[Minn.\] 121 NWV 623; & Sav. Bank \[Iowa\] 120 NWV 114; Orr v. Kenworthy \[Iowa\] 121 NWV 539; Schloeman v. Harris \[Iowa\] 121 NWV 1021; Egan v. Smith \[Iowa\] 121 NWV 1028; Morrison V. Dwyer \[Iowa\] 121 NWV 1064; Missouri Pac. R. Co. v.

\[Rome\] 118 NW 1047; Missouri Pac. R. Co. v. Stone \[Kan.\] 101 P 668; Buck Stove & Range Co. v. Vickers \[Kan.\] 101 P 668; Arndell v. Maluleky \[IKey.\] 112 SW 640; Feland v. Berry \[IKey.\] 113 SW 425; Holland v. Coleman \[IKey.\]

114 SW 305; Northrup's Trustees v. Sumner's Trustee \[IKey.\] 116 SWV 698; Thomason v. Kannour \[Aas City\] 8 R. Co., 122 La. 955, * \[13\] V. Hambright \[Ark.\] 113 SVW 803. In reaching evidence with view of ascertainning its sufficiency, supreme court must be guided by means furnished by law for measuring effect of production or withholding of certain evidence. Bone v. Hayes, 154 Cal, 759, 99 P 172. Reversed where no evidence to support it. Tracy v. New York, etc., R. Co. \[Conn.\] 72 A 156; Idaho Place Min, Co. v. Green, 14 Idaho. 294, 94 P 161; Maryland County Ga. \[KJY\] 120 SSV 301; Tipton v. Christopher, 135 Mo. App. 519, 116 SWV 115; Gartner v. Novick, 113 NYS 479; Kohn v. Nassan Elec. R. Co., 117 NYS 231. Although there is some evidence in support of judgment, appellate court can- not treat it as supported when erroneous ruling as to burden of proof precludes pre-sumption that evidence was properly conflicting evidence to be given much weight weighed. B. Petzold Co. v. Cohn, 114 NYS 165. Where it is evident from entire record that under no possible view could there be Municipal court act. Laws 1902, p. 1583, e. a recovery for amount decrered, judgment 850, 8326, authorizes reversal of judgment when contrary to weight of evidence. Caliro Turner \[Miss.\] 48 S 831. Finding that wit-ness is qualified as expert supported by facts adduced from his testimony is based Montgomery Lodge No. 596, B. P. O. E. v. on evidence and not reviewable as arbitrary. Massie \[Ala.\] 49 S 231; Rapport & Bro. v. Lincoln V. Central Vermont R. Co. \[Vl.\] 72 Birmingham R. \[Ala.\] 49 S 874; A 821.

- \[14\] **The weight of the evidence will not be Bank of Bisbee v. Gart \[Ark.\] 100 P 452; passed on. Boqua v. Brady \[Ark.\] 119 SWV 162; Gartman v. Potter, 238 Ill. 578, 88 NE**
- \[15\] **SBV 346**: **S11**: **Steph v. Myers, 42 Ind. App. 381, 85 NE**
- \[16\] **S100**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S12**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S12**: **S14**: **S15**: **S17**: **S18**: **S19**: **S19**: **S10**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S12**: **S14**: **S15**: **S17**: **S19**: **S18**: **S19**: **S19**: **S10**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S12**: **S15**: **S19**: **S13**: **S16**: **S17**: **S19**: **S18**: **S19**: **S19**: **S10**: **S11**: **S11**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S11**: **S19**: **S12**: **S13**: **S14**: **S15**: **S16**: **S17**: **S18**: **S19**: **S19**: **S11**: \*\*S1

#9 P 597; Ward v. Hall. 33 Ky. L. R. 1015, 112 85W 600; Oates V. Yagerin \[KY.\] 115 SWV 794; In re Corby's Estate, 154 Mich. 353, 154 - Det, Leg. N. 798, 117 NW 906; Lee v. Conn ran, 213 Mo. 404, 111 SW 1151; Sparks v. Jasper County, 213 Mo. 218, -118 SW 265; Haxton v. Glisontic Const. Co., 134 Mo. App. 360, 114 SW 577; Abbott v. Whitener Grocery Co., 13 Mo. App. 706, 116 SWV 1067; Tipton v. Christopher, 135 Mo. App. 619, 116 SWV 1125; Ford v. Fidelity Storage, Packing & Moving Co. \[Mo. App.\] 119 SWP 520; Fieldman v. Noxen \[Neb.\] 119 NWP 257; Segear v. Weeotot \[Neb.\] 120 NW 170; Powers v. Bohuslav \[Neb.\] 120 NWP 942; Turley v. Thomas \[Nev.\] 101 P 568; Jorg v. Public Service R. Co. \[N. J. Law\] 71 A 1126; Shaj pivo V. Leahy Bide, Co., 118 NYS 1090; Bartlett v. Reich, 113 NYS 48; Alto S. Humerh that, 113 NYS 574; Bryant v. Bell, 113 NYS 574; Bryant, Settai, 113 NYS 901; Prima v. Monkers, 131 Apr. Div. 110, 116 NY 306; Lager v. Seeds \[Ookl.\] 96 P 546; Lookabaugh v. Bowmaker \[Ookl.\] 96 P 651; Standard Lumber Co., Miller & Vider Lumber Co. \[Ookl.\] 96 P 652; Underm U. \[Ookl.\] 98 P 761; King v. King, 86 Pan. Super. 653; Funderburg v. Augusta & A. R. Co., 81 S. C. 141, 61 SE 1076; Butler v. Anderson \[Tex. Civ. App.\] 141 SWP 856; Haring v. Shelton \[Tex. Civ. App.\] 141 SWP 388; Jesse French Plana & Orgam Co., Costley \[Tex. Civ. App.\] 116 SWP 42; Mueller v. SEN 155; James V. San Antonio & A. P. R. Co. \[Tex. Civ. App.\] 116 SWP 642; Mueller v. Bell \[Tex. Civ. App.\] 117 SWP 593; Texas Midland R. Co., 000; Geraldo \[Tex. Civ. App.\] 117 SWP 1004; McKallip v. Collins Brox. \[Tex. Civ. App.\] 118 SWP 546; Watson v. City Nat. Bank \[Tex. Civ. App.\] 119 SWP 915; Henker v. Lindsay, 34 Utah, 288, 97 P 839; Little v. Herzinger, 84 Utah, 387, 97 P 638; Berg v. Ruby Min. Co., 50 Wash. 698, 96 P 883; Scott v. Young, 60 Wash. 700, 86 P 1038; Northwest Thresher Co. v. Dahlgren, 50 Wash. 826, 97 P 283; Judson v. Tide Water Lumber Co. \[S1 Vash.\] 164, 88 P 717; Stewart v. Davies \[Wash.\] 100 P 176; Smith v. Gray \[Wash.\] 100 P 339; Cornelius v. Washington Steam Laundry Wash.\] 100 P 727; Smyth v. Lance \[Vwash.\] 100 P 955; Springfield Shingle Co. v. Edgeomh Mill Co. \[Vwash.\] 101 P 233; Bock v. Sorenson \[Wash.\] 102 P 428; Baker v. Jackson IV. Va.\] 64 SE 32; Poole v. Tannis, 137 WIs 868, 118 NWV 188; Moehlennpa v. Mayhew \[Wis.\] 119 NWP 825; Mount v. Strickland \[Wyo.\] 101 P 942. Finding on conflicting arfinds. Stauffer v. Martin \[Ind. App.\] 88 her Corp., 81 S. C. 492, 82 SE 855. Where NE 863; Horton v. Haines \[Ookl.\] 102 P 121; Rule applies in case of conflict in inferences --a nearby deducible from evidence. Men. tact must be treated as final. Stewart v. tone Irr. Co., V. Redlands Elec. L. & P. Co. \[CaI.\]commissioners,"21 and special tribunals.28 They are also applied to findings in equity cases,24 though, strictly speaking, while entitled to considerable weight,28 such findings are not conclusive if the appeal is triable de novo.39

98 P 580; Turner v. Mills \[Okt.\] 97 P 558; commissioners in condemnation where euphoroeuro, O. & G. R. Co. v. Sitte1 \[Okt.\] 97 P 863. Where whole case referred by con- ents established by state commission, if to preponderance of evidence. Locust v. not based upon arbitrary conjecture, are "Cafuthers \[Okt.\] 100 P 520. Findings on conflating evidence approved by chancel- entsmfficient data. Railroad Commission v. lor, not disturbed unless manifestly against weight of evidence. Keuper v. Mete's Unknow Heifra, 239 111, 556, 88 NE 218; Ed- uty under power to remove officers "for wards v. Oil City Bidg. & Sax." 137 Ill. App. 522; Barber v. Barber \[R. L\] 71 has been arbitrary exercise of power and A 641. Findings of master concurred in by court presumptively correct, and should be and insulficient in law, and supreme court permitted to stand, unless some obvious error or mistake has intervened either in application of law or in consideration of NNE 513. Findings of commissioner in pro- entsmille c. City of Memphis v. Postal Tel. & Cable Co. \[C. C. A.\] 164 F 600; Guarantee "Gold Bond Loan & Sax. Co. v. Edwards \[C. A.\] 164 F 830. C. A.\] 164 F 809; Cimott Uh charing Co. v. 34. Chancellor's findings of fact conclu- "American Fur Refining Co. \[C. C. A.\] 168 F 529; Jefferson Hotel Co. v. Brumbaugh \[C. A.\] 168 F 867. Exception to finding. 87 NE 541; Kluash v. Vesseling, 238 Ill. and assignment of court's ruling against 168, 87 NE 542; Haigh v. Lenderset, 239 Ill. it, held to impose on appellate court duty 227, 87 NE 962; Ackman v. Potter, 239 Ill. of determining whether was any legal evidence. \[M.\] 578, 88 NE 231; Farrenkoph V. Holm, 142 defence to support finding. McSherry Mfg. \[II.\] App. 336; Storm v. Brown, 143 Ill. App. Co. v. Downsagic Mfg. Co. \[C. C. A.\] 163 F 252; Philip Carey Mfg. Co. v. Weygendt: 34. Findings confirmed by court not con- 143 Ill. App. 297; Flagg v. Phillips, 201 Mass. elusive upon federal supreme court in cases 216, 87 NE 968; Cogan v. Cogan, 202 Mass. involving constitutionality of legislation. 58, 88 NE 662; Stapler v. Clark \[Mich.\] 15 Knoxville v. Knoxville Water Co., 212 U. S. Dott. Leg. N. 834, 118 NW 605; Wilson v. Brown \[Ilass.\] 47 S 645; Blair v. Kingman "S2. Findings of commissioner whitle not "Longment Co. \[Neb.\] 117 NW 773; Manst as conclusive as verdict of jury to be given v. Pennsylvania & M. St. R. Co., 219 Pa. great weight. Townley Bros. v. Crickenberger \[W. v.a.\] 68 SE 320; Baker v. Jackson \[W. v.a.\] 64 SE 32; State v. King \[W.\] 551; People's Bank of California v. Stroud Va.\] 68 SE 468. Rule peculiarly applicable \[Pa.\] 72 A 341; Sharkev v. Locke \[Pa.\] 72 A 361; McKaysey v. Potts \[W. v.a.\] 64 SE 320. Findings of commissioner and Min. Co. \[C. C. A.\] 164 F 667; The Carroll's court in proceedings for establishment of lost boundary corners on conflicting evidence. Locust v. Oberlander \[Towal\] 117 NEV 50. Judgment on settlement of ac- entsm by commissioner not disturbed, where he did not give any of items in his report nor method whereby he arrived at his conclusion, and it was impossible to ascertain true state of such accounts from record. Cotton v. Cotton's Ex'x. \[Ky.\] 115 SW 783. Findings of fact of secretary of 1n- "terior in action before him to disbar attor- "news from practicing before department. Garfield v. U. S., 32 App. D, C. 109. Interior department's finding of fact on land contest, in absence of clear mistake, especially where reinforced by judgment of state court. Whitcomb v. White, 214 U. S. 15, 53 Law. Ed. --. Will not disturb findings of "submit" to be regarded as "fast" established by sentiment, sustained by quarterly and cir- "cult courts, upon mere suspicion of unfairness". Thomas v. Jackson County Sny's \[Ky.\] 119 SW 209. Award of commissioners in condemnation unless grossly inadequate or unequal. In re Croton River
**3276**: **APPEAL AND REUFEW $ 13F2.** 13 Cur. Law.

(SS 13) \_G. Rulings and decisions on intermediate appeals."See 13 C. L. 225 Where an intermediate appeal is had, the findings of fact therein are usually final, review in the court of last resort being confined to questions of law," and to ques-

48 S 515: Butts v. Gunby, 135 Mo. App. 28, |SWW 689; Northup's Trustees v. Sumner's 115 SVV 493; Conrad v. Conrad, 36 Pa. Super. Trustee \[Ky.\] 116 SVW 699; Wheeler v. Ct. 154; Morgan v. Morgan \[Vt.\] 73 A 24; James \[Ky.\] 120 SVW 350; Richter v. Poe, Rochester German Ins. Co. v. Schmidt \[C.\] 109 Mo. 26, 71 A 420; Phillips v. St. Louis C. A.\] 162 F 447. Union Trust Co., 214 Mo. 669, 113 SWW 1065; Unless manififestyle argument weight of evl- (Creamer v. Bivert, 214 Mo. 473, 113 SWV 1118; deece. Moun Nebo Antheracite Coal Co. v. First Nat. Bank v. Fry, 216 Mo. 24, 115 SVV Martin (Ark.) 111 SWV 1002; Robertson v. 489; Sommer v. Ross \[Ky.\] 116 SWV 1181; Robinson \[Ark.\] 112 SVW 883; Blackburn v. Glasock v. Glascock, 217 Mo. 362, 117 SWC Cherry \[Ark.\] 113 SWV 25; Farmer v. First 67; Jones v. Thomas, 218 Mo. 508, 117 SWN Nat. Bank \[Ark.\] 115 SWV 1141; Craig v. 1177; Collins v. Harrell \[Mo.\] 118 SWV 432; Craig \[Ark.\] 117 SVW 765; Bank of Pine Ball v. Reyburn \[Mo. App.\] 118 SWV 524; Bluff v. Levi \[Ark.\] 118 SWV 250; Plunkett Southwest Missouri R. Co., V. Big Three v. Mountain Park Land Co. \[Ark.\] 118 SWV 892; Nevius v. 272; Craig v. Hedges \[Ark.\] 119 SWV 845; Moore \[Mo.\] 120 SWV 43; Katz v. Ish \[Neb.\] Compagnette v. McArmick \[Ark.\] 120 SWV 239.

100; High v. Jasper Mfg. Co. \[Fla.\] 49 S 36, Walker v. Ganote \[Ky.\] 116 SWV 689; 156; Price v. Jester, 137 Ill. App. 565; Peets Sommer v. Ross \[Ky.\] 116 SWV 1181; Glas- v. Peets \[Mich.\] 16 Det. Leg, N. 26, 120 NWV cock v. Glascock, 217 Mo. 362, 117 SWV 67; 571; Plaza Hotel Co. v. Dines (Mo. App.) 120 SWV 43. Not 116 SWV 1121; Prime v. Yonkers, 131 App.) bound by findings of trial judge. Venable Div. 110, 115 NYS 305; Stelling v. Bank of v. School Committee of Pilot Mountain, 149 Sparta, 136 Wis. 369, 117 NVV 798. Finding N. C., 126, 62 SE 902; Zweigart v. Reed \[Mo.\] will not be sustained where contrary to 119 SWV 960. Findings on conflicting evl- (Celer weight of evidence. Westbrook v. dence do not necessarily require supreme (Pottet's Sons' Trustees, 33 Ky. L. R. 1071, court's approval, particularly where evl- (L12 SVW 635.

**Where evidence is conflicting.** Souter v. Gowans \[Utah\] 100 P 397. Court of ap- (Ark.) 113 SVW 800; Smith v. Rucker peals, after. reading record, will make up (Ark.) 114 SWV 181; Maysili Lumber Co., "Its own independent judgment judgment and deter- (Lane-White Lumber Co. \[Ark.\] 119 SVW 822; mine for itself whether facts authorize (Wetherington w. Wetherington \[Fla.\] 49 S judgment. Howell v. Union Grocery Co. \[49; J. I. Kelley Co. v. Pollock \[Fla.\] 49 S \[Ky.\] 113 SVW 912. Court must examine all 984; Later v. Haywood, 15 Idaho, 716, 99 evidence and base conclusions on its own (P $28; Jones v. Thie \[Iowa\] 119 NWV 616; view thereof. Barrie v tions litigated in the intermediate court.\[39\] Provision is sometimes made for a rehearing under certain circumstances in the court of last resort.\[40\]

ILL 249, 88 NE 243; Johnson v. Coey, 237 Ill. Thayer's Batate, 193 N. Y. 420, 86 NE 462; 86, 85 NE 678; Peterson v. Pusey, 237 Ill. Pennsylvania Steel Co. V. Title Guarantee 204, 86 NE 692; Dukeman v. Cleveland, etc., & Trust Co., 193 N. Y. 37, 85 NE 820; Hafrey R. Co., 237 Ill. 104, 86 NE 712; Rockhill v. Lynch, 193 N. Y. 67, 85 NE 817; Finucana Congress Hotel Co., 237 Ill. 98, 86 NE 7140; V. Warner, 194 N. Y. 160, 86 NE 1118; Reiter v. Standard Scale & Supply Co., 237 Ill. 374, 86 NE 745; Smyrthe v. Parish & Co., 38 N. Y. 303, 88 NE 753; People v. Public 237 Ill. 419, 86 NE 754; Ford v. Hine Bros. Service Commission, 195 N. Y. 157, 88 NE Co., 237 Ill. 468, 88 NE 1051; Peterson v. Brooklyn Union El. R. Co., Elgin, Aurora & So. Trac. Co., 238 Ill. 403, 87 NE 345; Savage v. Chicago & J. Elec. R. made at special term are consistent with Co., 238 Ill. 892, 87 NE 377; Elbin v. Ameri- each char and with conclusions of law upon which judgment is based. Whalen v. 385; Gascoline v. Metropolitan West Side Stuart, 194 N. Y. 495, 87 NE 819. Where findings are inconsistent, apellular seeking to Kelly Coal Co., 239 Ill. 626, 85 NE 196; Reverse judgment based thereon is entitled to benefit of those most favorable to him. 16. Court of appeals may determine whether findings support legal conclusions and justification found thereon. Becker v. McCrea, 193 N. Y. 423, 86 NE 463. Where order of appellate division affirming judges legitimately drawn therefrom fairly ment entered on verdict for plaintiff was not unanimous, held that exception by defendant to denial of motion to dismiss complex opinion of Laws 1907, 468, 8 120, that in palingt properly presented questions of negligence and contributory negligence to court of appeals. Lynch v. Elektron Mfg. 195 N. Y. 171, 88 NE 48. One appealing in part of finding the facts different from finding of trial court, and in cases where justice of appellate court are divided in opinion on law or facts, supreme court may theory and claim, based on question of reject how law and facts, construed, and held that both parts of proviso apply only to cases where decision of appellate court is based on finding of facts differing from finding of trial court, that being only kind of cases with which section as whole purports to deal. Reinhardt v. Chicago Junction R. Co., 235 Ill. 576, 85 NE 605. Exception of second class of cease mentioned in previous from operation of rule that appellate court's findings shall be final and conclusive held to violate Const. art. 4, & 2, in that it discriminates between parties. Id. Hence findings of appellate court are conclusive under provisions of $ 122, in case where it reversed without remanding and with finding of facts though court was not unanimous. Id. Proviso having been held unconsitiutional as a whole, law stands as it did prior to passage of practice act or which section forms part, and where appellate court reverses without remanding, and reites its finding of ultimate facts in its judgment, such judgment is conclusive as to all matters of fact though justices are divided in opinion. Mozeiko v. Lughi Valley Transp. Co., 235 Ill. 248, 85 NE 618; Kehoe v. Marshall Field & Co., 237 Ill. 470, 86 NE 1054; Huermann v. MoDeol, 239 Ill. 80, 87 NE 913. Supreme court cannot revive evidence to determine whether findings are supported or consider evidentiary facts to determine whether ultimate conclusion of fact is sustained. Stone & Co. v. Ferry, 239 Ill. 606, 88 NE 186. Will reject evidentiary facts as surplusage. Id. New York: Unanimous affirmance by appellate division is conclusive on court of appeals on questions of fact. Ostrander v. State, 192 N. Y. 415, 85 NE 668; In revent had jurisdiction to pass. Town of

**278**

**APPEL AND REVIEW SS 13H. 13 Cur. Law.**

**(SS 13)** \_H. Effect of decision on former review of the same case.41-- 585 11 C. L. 487--The binding effect of a decision on appeal on a retrial in the lower court,42 and the effect of appellate decisions as precedents in other cases,43 are treated elsewhere. All matters necessarily decided,44 and everything that might have been raised, but\*\*

\*\*Scott v. Artman, 237 Ill. 394, 88 NE 595. v. Stone \[Kan.\] 101 P 666; Buck Stove & Where no cross error was assigned in ap- **Range Co. v. Vickers \[Kan.\] 101 P 668;**

\*\*plate court to ruling that defense was \*\*Shicaltz's Adm? v. Illinois Cent. R. Co. not open to consideration because not \[Ky.\] 112 SWP 910; White & Sons v. Ayer & pleaded, held that it was not open to re- **Lord Tio Co. \[Ky.\] 116 SWP 340;**

\*\*view on appeal to supreme court by appelle we **J. Ball \[Ky.\] 118 SWP 321;**

**in appellate court. Commercial & T. Co. R. Co. v. O'Nany's Adm? \[Ky.\] 118 SWP 1192;**

**v. Mallers, 237 Ill. 119, 86 NE 728. Where**

\*\*Order remanding case on reversal by ap- \*\*Young S. Ruhvdedel, 123 Mod. App. 721, 111 pellate court of judgment in plaintiff's **SWP 933;**

**flavor was struck out on plaintiff's motion, 949; In re Cook's Estate, 194 N. Y. 400, 87 held that he could not complain, on appeal**

**NE 786; Barkley v. South Atlantic Waste to supreme court, that cause was not re- **C**, 149 N. C. 287, 62 SE 1073;**

**manded. Henning v. Sampesell, 236 Ill. 375, 85 NE 274. Questions not raised in ap- **S**eme 1184; Oklahoma City Elec. Gas & P. Co., pellate court not considered in supreme court. Smythe v. Parish & Co., 237 Ill. 419, 86 NE 754;**

**N**e 754;\*\*

**Esmond v. Esmond, 142 Ill. App. 383;**

**N**e 844;\*\*

**N**e 845;\*\*

\*\*Bennett v. Knott \[Ky.\] 112 SWP 849. As- **L**

**isment not to be considered by supreme court where different from that agreed in court of civil appeals. Missouri, K. & T. Bradley Engineering & Machinery Co., 51 R. Co. v. Briscoe \[Tex.\] 119 SWP 844. Writ of error to court of civil appeals not to be considered by supreme court where no motion for rehearing in former court within prescribed time. Myers v. Frey \[Tex.\] 119 SWP 1142.**

\*\*40. Supreme court will grant rehearing in case properly appealed to court of ap- **p**eal only where error appears upon face of **p**oplinion of latter court, or when doubtful or important question **is presented upon**

**which supreme court desires to hear fur- **p**argargation of complaint was sufficient**

\*\*ther argument. Burke v. Mazee \[Ca.\] 101 P 440. In case properly appealed to supreme court and referred by it to court of \*\*v. Cobler \[Ind.\] 87 NB 981. Decision of ap- \*\*appals for hearing and decision, supreme court will order rehearing if upon examin- **ing** record it finds that anything deserving \*\*consideration has been overlooked in de- **c**iding case, or any of the facts miscon- **c**edived in material particulars, though opinion of court of appeal may be correct **on its face. Id.**

**41. Senrech Note: See notes in 34 L. R. A. 231;**

**S**em, also, Appeal and Error, Cent. Dig. **SS 4353-4379;**

\*\*Dec. Dig. **SS 1086-1099; 8 Cyc. 385-405;**

**42. See post, 1 E5F. 43. See post, 1 E5F. 43. See Star Dec. 1903. 43. See Star Dec. 1903. 44. Holberg v. Foucar \[Ark.\] 118 SWP 653;**

**T**ubbard v. Lee \[Cal.\] 102 P 528;\*\*

**mings v. Consal, 30 App. D. C. 540;**

**O**osta Mercantile Co. v. White \[Fla.\] 47 S 961;\*\*

**61;**
**McKinnon v. Johnson \[Fla.\] 48 S 910;**

\**Bank of Commerce v. New York Life Ins. Co., 181 Ga. 312, 62 SE 179; Stark v. C* 18 Cur. Law. **APPEL AND REVIEW $13H.**

Treat v. Grand Canyon R. Co. \[Artix.\] 100 contract. Houts v. Union Pac. R. Co. \[Utah\] P 438. That bill stated good cause of action. Seymour v. Goodwin \[N. J. Err. & \] vision of contract held properly before App.\] 72 A 123. Sufficiency of answer. Bayse v. McKinney \[Ind. App.\] 87 NN 693. As to surfleency of certain pleas. Provo-dent Sav. Life Ins. Soc. v. Prnett \[Ala.\] 47 by holding that evidence was properly S 1019; Dolvin v. American Harrow Co., 131 Ga. 800, 62 SE 188. Striking portions of pleas. Id. Construction of pleasings. Austin v. Collier, 131 Ga. 295, 62 SE 196. That pledings presented certain question. Ches. Apacheake & O. R. Co. v. Morgan \[Ky.\] 112 SVW 859. As to admissibility of evidence. Chase v. Woodruff \[VWs1\], 120 NW 499. As to instructions. Lexington R. Co. v. Woodruff \[Ky.\] 118 SWV 965; Austin v. Collier, 131 Ga. 295, 62 SE 196; Langhorn, Johnson & Co. v. Vylev \[Ky.\] 115 SWV 759; Van Lois C. R. Co. \[Mo. App.\] 118 SWV 116. That certain question was for jury under the evidence. McDonough v. Williams \[Artix.\] 112 SWV 164; City of Chilengo v. Gathman, 139 Ill. App. 253; Hanson v. Cline \[Iowa\] 118 NWV 754; Doherty v. \[Ky.\] 118 SWV 756; Dech'y v. \[Dech'y\] 118 WZ 890; ment was personal instead of in rem amounts to affirmance of remaining ques-O'Dell v. Goff, 153 Mich. 643, 15 Det. Leg. N. 560, 117 NWV 59; O'Neill v. Northern Assur. \[Ky.\] 118 SWV 944. Where judgment of district court, affirmed on appeal, Co. \[Mich.\] 16 Det. Leg. N. 416, 122 NW 107; Anderson v. Pitt Iron Min. Co. \[Mich.\] 16 Det. Leg. N. 416, 122 NW 107; Anderson v. Pitt Iron Min. Co. \[Mich.\] 121 NWV 915; Travis v. Haan, 128 App. Div. \[Dech'y\] 121 NWV 463; Chase v. Woodruff \[VWs.\] 120 NWV 499. Weight and effect to be given \[reaction and acquiescence of proponent. Sucvetidence. Hruby v. Sovereign Camp Woodruff \[La.\] 49 S 128.

- 120 Neelsen held not law of case: As to planlman of the World \[Neb.\] 120 NW 427. That triff's right to interest. Apple Water-dence, where evidence no stronger on second trial. Seabrook v. Co. Bay Ice & Cold Storage Co. \[Or.\] 102 P 175. Holding that contention that verdict should have been directed was not tenable. Anderson Carriage Co. v. Pungs, 153 Mich. 586, 15 Det. Leg. N. 591, 117 NWV 162. Decision revers-ing decree sustaining demurrer and dismissing bill held to settle law applicable to facts proved in accordance with allegs-tions of bill. Dunbar v. American Tel. & T. Co., 238 Ill. Ates, 87 NE 521. As to whether defend was entitled to judgment on establishing facts alleged in answer. Twentieth Century Co. v. Quilling, 138 WVis. 481, 117 NWV 1067. Where evidence on first trial was sufficient to have sustained verdict, but case was reversed on other grounds, held that verdict for same party on substantially same evidence on second trial would be sustained. St. Louis, etc., R. Co. v. Inman \[Artix.\] 112 SWV 179. Presented that all questions respecting amount of judgment or regularity of pro-cedings upon which ju?rent for costs was based were litigated on former appeal from such judgment so that question could not be further litigated. Bell v. Thompson, 8 Cal. App. 483, 97 P 158. Rule as to what fraud will authorize attack on judgment. Uecker v. Thiedt, 137 WVis. 634, 119 NWV 878. As to measure of damages. Kuhn v. Eppstein, 239 Ill. 555, 88 NE 174. Cuest-Mon of damages. Anderson Carriage Co. v. Pungs, 183 Mich. 580, 15 Det. Leg. N. 591, 117 NWV 162. As to construction of bond sued upon. Landt v. McCullough, 130 Ill. App. 515. As to validity of provisions of the work \[Mich.\] 100 contract. Houts v. Union Pac. R. Co. \[Utah\] 89 P 997. Question as to validity of pro-vision of contract held properly before court on former appeal

## 14 Appeal and Review SS 14.

13 Cur. Law. was not,\[45\] is the law of the case on another appeal in the same case, provided the issues and evidence are substantially the same,\[46\] and, as a general rule, this is true whether the former decision was right or wrong,\[47\] unless in exceptional cases\[48\] or where a contrary rule is prescribed by statute.\[49\]

_Provisional, ancillary and interlocutory relief_ 50 See 11 C. L. 219 may sometimes be granted pending final determination if circumstances so require.\[51\]

on former appeal was not res adjudicata\[Menasha Wooden Ware Co. v. Nelson as to sufficiency of evidence. Later v. \[Wash.\] 101 P 720; Appleton Waterworks Haywood, 15 Idaho, 716, 99 P 838. Co. v. Appleton, 136 VWs. 595, IIIT NW 816; 45. Davis v. Munie, 140 Ill. App. 171; Steele v. Korn, 137 Wis. 51, 120 NW 261, Breckenridge County v. Rhodes \[Ky.\] 112 SEW 624; Illinois Life Ins. Co. v. Wortham \[Ky.\] 113 SW?: In re Cook's Statate, 194 N. Y. 400, 87 NE 1786. Where appelle on former appeal from order setting aside ver. dict failed to show any ground for sustaining such order, and order was reversed with direction to enter judgment on ver. dict, held that the could not thereafter himself appeal and reply upon errors at trial which would have justified setting aside verdict. Hensley v. Davidson Bros. \[Iowa\] 120 NW 55. Wireire error in regard to burden of proof and right to open and close was not presented to or passed upon by court on first appeal, similar ruling on second trial held no open to review on second appeal. \[Stringfield v. Louisville R. Co. \[Ky.\] 113 SW? 518. Error in failing to make person party to original bill cannot be raised for first time on second appeal. Mantonrach v. Studt, 240 Ill. 567, 88 NE 1000.

40 Net where facts are materially different. Profum v. Russell \[Cal. App.\] 101 P 24; Tice v. Chicago, etc., R. Co., 142 Ill. App. 577; Crotty v. Chicago, G. W. R. Co. \[C. C. A.\] 169 F 598. Decision sustaining demurrect to criminal complaint held not law of case as to sufficiency of amended complaint. Waeler v. Great Northern R. Co. \[S. D.\] 117 NW 140. Rule cannot be extended to include case where new complaint asserts for defendants rights which defendants asserted in former case against others who are now made codefendants with him. Chicago Title & Trust Co. v. Danforth, 137 Ill. App. 338. Decision as to necessity for submission to jury is not law of case on subsequent appeal from order setting aside verdict on practically same evidence, questions on appeal not being same. Kramm v. Stockton Elec. R. Co. \[Cal. App.\] 101 P 914. Where, in action against administrator personally for improvements made upon reality of in- testate It was held that evidence was insufficient to show that agent- actually making contract had authority from defendant, held that fact that on second trial it appeared that property in question had been set off to administrator as lower did not require different disposition of question, evidence regarding agency being same, Klimball Bros. Co. v. Fitzgerald \[Neb.\] 118 NW? 1076. Decision binding as to facts though nonsuit entered and on retrial plaintiffs were transfees of former plaintiffs. Barley v. Sallier, 120 La. 743, 45 S 593.

47 Illinois Cent. R. Co. v. Wilson \[Ky.\] 113 SW? 905; Akin v. Bradley Engineering & Machinery Co., 51 Wash. 658, 99 P 1038;

## 15 Decision and determination

A. Affirmance or reversal\[52\]See 11 C. L. 238 Assuming the existence \[53\] and proper acquisition of appellate power\[54\], the appellate review, within the proper limitations thereof\[55\], will ordinarily lead to affirmance, reversal or modification, according to the absence or presence of error\[56\], prejudicial to the party complaining thereof\[57\]. A profitless reversal will not be granted\[58\]. An affirmance is not necessarily precluded by the fact that pending the appeal the sub-order and time of its dissolution on affirm- \[420, 97 P 875. Where complainant fails to ance of judgment. Chicago, A. & N. R. Co. request decree below as to portion of v. Whitney \[Iowa\] 121 NWV 1043. Appel-lant procured restraining order from sub-meme court pending appeal on giving bond to pay all damages resulting therefrom. Aotion to dissolve order was denied and judgment was thereafter affirmed. Held that no recovery could be had on bond for attorney's fees incurred on motion for dis-solution. Id. Bond held not to cover expenses and attorneys' fees in preparing motion for dissolution incurred before it was given. Id. Held further that, restraining order being merely ancillary to appeal, not in any way affecting any rights they might have. Poluckie -V. Wegenke, 137 Id. Question of amount of fees and ex-penses to be allowed held for jury in any event, so that it was error for court to direct verdict for specific amount, though only testimony as to value was offered by plaintiff. Id.

52. Search Note: See notes in 17 A. S. R. 264; 96 Id. 124, 136; 9 Ann. Cas. 900; 10 Id. 80. See also, Appeal and Error, Cent. Dig. 1903, $ 1195, is affirmed, supreme court will $ 428-4631, 4658, 4659; Dec. Dig. 1124-1180; 3 Cyc. 412-470; 7 A. & E. Enc. P. & P. 44.

01. See ante $ 4, 5.

01. See ante, $ 6, 11.

01. See ante, $ 13.

01. That judgment is void will not present reversal. In re Dahlgren, 30 App. D. C. 588. Ordering nonst on evidence is equivalent to reversal. Tussey v. Owen, 147 N. C. 335, 61 SE 180. If declaration did not state cause of action against any of the defendants, held that reversal of judgment in plaintiff's favor was proper, regardless of motion pursuant to which remanding order was vacated. Kenning v. Sampsel, 236 Ill. 875, 86 NE 274. Where appellate court cannot know what effect, if any, erroneous charge limiting effect of evidence had upon jury, case must be reversed. Louisville & N. R. Co. v. Price \[Ala-J 48 S 814. Plaintiff used two defendants for alleged joint negligence. Evidence showed that whatever negligence there was was exclusively that of one of them and there was issue as to whether he was the agent of the other. Court erroneously instructed that if alleged agent was in fact such agent, could be no recovery against him. Jury found in favor of agent and against other defendant. Held that verdict could not be sustained as against other defendant upon theory that in so far as it was in favor of agent it was in favor of agent it was based on erroneous instruction, since whether based upon correct or incorrect instructions principal was injured, and hence case would be reversed and remended for new trial. Bradley v. Rosenthal, 154 Cal.

### 13 Cur. Law.

ject-matter of the controversy has been transferred to another.\[58\] Pro forma affirmance is governed by the same considerations as dismissal, and is treated in connection therewith.\[60\] Except in equity cases,\[61\] reversal or affirmance must ordinarily be entire,\[62\] unless the judgment is severable,\[63\] or a partial reversal is authorized by

### 14.

59. Contention that judgment for plaintiff

breach of contract questions of liability and for money due should not be affirmed because of recovery were submitted in same cause claim assigned to another, not maximise, and instruction as to latter was in-attable, where personal representatives of correct. Wilkinson v. Dunbar, 149 N. C. 20, assignee parties at their own request were present and asked affirmance. Ives v. Newbern Lumber Co., 147 N. C. 306, 61 SB 70.

60. See ante, $ 11G.

01. Froeland v. Williamson \[Mo.\] 119 SVW 560.

01. Judgment erroneous as to one of several defendants must be reversed as to all-exclek v. Henning, 139 Ill. App. 660; Willa-ner v. Silverman, 109 Ma. 341, 71 A 963; Blackmmer & Post Pipe Co. v. Mobile & O. R. Co. \[Mo. App.\] 119 SV 1; Guenther v. Moffett \[N. J. Law\] 71 A 153. Judgment against joint defendants reversed when liability was submitted on Improper grounds, although there was evidence of liability .properly submitted as to one of them, it being impossible to determine upon what verdict was based. Genovesta v. Pelham Operating Co., 180 App. Div. 200, 114 NYS 646. In action in trespas to try title and for damages for cutting timber on land in dispute, all defendants, except one, disclaimed title, and judgment was entered against them for damages. Other defendants claimed title by adverse possession, and court erroneously directed verdict against him on that issue. Held that reversal on that ground required reversal as to all defendants. Since, if said defendant had title, plaintiff was not entitled to damages against other defendants. Williams v. Texas & N. O. R. Co. \[Tex. Civ. App.\] 114 SWW 871. Where in action against corpora and officer thereof liability is largely interdependent, new trial rendered necessary by stockholder of plaintiff corporation (setting a jury must be as to both defendants, although original judgment was against one only. Murchison Nat. Bank v. Dunn Oil Mille Co., 150 N. C. 683, 64 SB 883. Where general verdict is set aside for errors occurring at the trial, no part of such verdict can be left to stand, but new trial must be awarded upon all the issues of fact. Cerney v. Paxton & Gallagher Co. \[Neb.\] 119 NW 14. Where entire judgment for stated sum of money is in part erroneous on face of judgment roll, court has discretionary power to reverse it altogether. Lyden v. Spohn-Patrick Co. \[Cal.\] 100 P 236. New trial granted generally on all issues in exercise of discretion, though error affected only portion where facts would be more fully developed and questions more clearly presented, and infustice might be done unless new trial was granted. Hawk v. Pine Lumber Co., 149 N. C. 10, 62 SE 752. Where no admission of anything due and liability of defendant was mitigated, and where on new trial defendant may give further proof of nonliability, judgment must be reversed as an entirety. Adams v. Carter \[Miss.\] 47 S 409. New trial on on-tre issue ordered, where in action for

### 13 Cur. Law.

APPEAL AND REVIEW SS 15A.

**44**: A judgment may, however, be modified and affirmed,65 or the case remanded solely for the determination of issues not previously decided.66 A reversal of a several judgment does not inure to the benefit of one not appealing.67 Orders subsequent to and dependent upon the decision_reversed are necessarily vacated by such reversal.68 Concurrence of a majority of the court as constituted at the time of the decision is necessary to a reversal,69 and, hence, where the court is equally divided in opinion, the judgment will be affirmed, either by operation of law 70 or by an affirmative order of court under its practice rules.71 An affirmance does not necessarily sustain all the trial court's findings of fact.72 The decision should be based on the facts as they exist at the time it is rendered.78 The judgment of the

**45**: A judgment may, however, be modified and affirmed,65 or the case remanded solely for the determination of issues not previously decided.66 A reversal of a several judgment does not inure to the benefit of one not appealing.67 Orders subsequent to and dependent upon the decision_reversed are necessarily vacated by such reversal.68 Concurrence of a majority of the court as constituted at the time of the decision is necessary to a reversal,69 and, hence, where the court is equally divided in opinion, the judgment will be affirmed, either by operation of law 70 or by an affirmative order of court under its practice rules.71 An affirmance does not necessarily sustain all the trial court's findings of fact.72 The decision should be based on the facts as they exist at the time it is rendered.78 The judgment of the

**46**: A judgment may, however, be modified and affirmed,65 or the case remanded solely for the determination of issues not previously decided.66 A reversal of a several judgment does not inure to the benefit of one not appealing.67 Orders subsequent to and dependent upon the decision_reversed are necessarily vacated by such reversal.68 Concurrence of a majority of the court as constituted at the time of the decision is necessary to a reversal,69 and, hence, where the court is equally divided in opinion, the judgment will be affirmed, either by operation of law 70 or by an affirmative order of court under its practice rules.71 An affirmance does not necessarily sustain all the trial court's findings of fact.72 The decision should be based on the facts as they exist at the time it is rendered.78 The judgment of the

**47**: A judgment may, however, be modified and affirmed,65 or the case remanded solely for the determination of issues not previously decided.66 A reversal of a several judgment does not inure to the benefit of one not appealing.67 Orders subsequent to and dependent upon the decision_reversed are necessarily vacated by such reversal.68 Concurrence of a majority of the court as constituted at the time of the decision is necessary to a reversal,69 and, hence, where the court is equally divided in opinion, the judgment will be affirmed, either by operation of law 70 or by an affirmative order of court under its practice rules.

appellate court becomes effective immediately on its rendition.74 On reversal of the decree of an intermediate appellate court, the case may be remanded to such court rather than to the court of first instance, where its ruling precluded a consideration of the merits.75

(SS 15) _B. Transfers and removals, certifications and reservations.76--See 11_ C. L. 242--Certification and reservation by a trial court to a reviewing court is elsewhere treated.77 An appeal to a court of primary jurisdiction which should have been taken to a court of final appeal may be transferred by the former to the latter,78 and vice versa.79 Transfer or certification in case of failure of judges to

74. Covenant of warranty held breached was formally submitted upon briefs in latter court, held that submission would't stand, to be in third person, so that vendee was not required to await filling of mandate in proper court. Bottie Min. & Milli. Co. v, lower court before sung vendor for breach. Beach v. Nordman (Ark.) 117 SW 785.ferred from supreme to appellate court. 75. If appeal was improperly dismissed by appellate court, held that on further appelle to supreme court order of dismissal cause to appellate court after latter court would be reversed and case remanded to night or wrong is law of case and settles question of jurisdiction. Pittsburg, etc. R. Co. v. Peck \[Ind.\] SS NE 939, rvg. 88 NE ter judgment of affirmance. Rosenstuhl v. Chicago Board of Education, 239 Ill. 29, 87 NE 878. Appellate court reversed without remanding on ground that lower court had no jurisdiction of subject-matter. Helid that supreme court, on holding that lower court had jurisdiction, would remand case to appellate court to enable it to consider other errors assigned on record in that court. Harty Bros. & Harty Co. v. Polakow, 237 Ill. 559, 86 NE 1085.

01. Search Note: See Courts, Cent. Dig. **SS 1288-1323**; Dec. Dig. **SS 483-485**; **11 Cyc.** 992-995\*\*.

01. See ante, $ 2B.

01. Appeal to court of appeal in equity case transferred to supreme court pursuant to Const. art, $ 4. Litch v. O'Connor, $ 4.

79.4 Cal. App. 489, 97 P 207. Appellate court on adjudging that appeal should have been brought in supreme court shall direct clerk to transmit record and files to supreme court. $ 102 Practice Act. Schlosser v. Warren Highway Com'rs, 136 Ill. App. 525. Appellate court should transfer actions designated by statute although judgment was rendered in trial court before statute went into effect. Action underlined in appellate court when $ 102 Practice act went into effect. Id. Where appellate court heard case over which it had no jurisdiction to because freehold was involved, held that on further appeal to supreme court judgment would be reversed and cause remanded to appellate court with directions to order it transferred to supreme court. McComb v. McComb, 238 Ill. 555, 87 NE 355.

70.5 Where after cause was transferred to appellate court by supreme court, appellees filed briefs properly presenting constituulability of statute, which was not pre-sented at time of transfer and hence not .passed on by supreme court, held that case would be transferred to supreme court. East Chicago Co. v. East Chicago, 42 Ind. App. 383, 85 NE 783.

71. Where case which should have been appealed to district court of appeal was improperly appealed to supreme court, and agree,80 or in case of difficulty or importance,81 or conflicting decisions,82 or on constitutional questions,83 is sometimes provided for. On certification for the determination of particular questions, the certificate should specify the questions for decision,84 and only the questions so certified will be considered.85 A statutory right of removal from one court to another may be waived.86

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

Appeal to supreme court will be transferred to Appellate court where jurisdictional amount not involved. Nick v. Bensberg \[La.\] 48 S 986. State v. Hingle \[La.\] 49 S 48. Ordered that appeal be transferred to counsel, and ruling by appellate court of appeal provided appealant or his attorney made oath that it was not taken for delay, and that if oath was not made appeal to dismissed. Texas & P. R. Co. v. Railsback \[La.\] 49 S 975. Appeal was taken to supreme court on ground that content, or that new question of law is dilant contending that charter provision was valid. Supreme court refused to take jurisdiction on ground that provision had previously been held unconstitutional, and transferred case to court of appeals. Held Amend. 1884, & 6, rests solely upon deter- that constitutional question was not before that court, but it would decide case on theory that provision was void. Dickey v. Orr, 132 Mo. App., 416, 111 SWV 910, Appeal in action against railroad for damages for killing horse was transferred to supreme court by court of appeals on ground ruling of supreme court on question in-malimentation of cattle guards was involved. Supreme court returned case to court of appeals on ground that constitutional quesues to have been impliedly overreuled thereby, and then certify case to supreme court as contrary to last ruling of that court. Held that court of appeals was not precluded from holding that action was Elec. L. Co., 215 Mo. App., 119 SWV 471. Court of appeals for killing horse was transferred to supreme court by court of appeals on ground ruling of supreme court on question in-malimentation of cattle guards was involved. Supreme court returned case to court of appeals on ground that constitutional quesues to have been impliedly overreuled thereby, and then certify case to supreme court as contrary to last ruling of that court. Hould v. Cape Girardeau Waterworks & common-law one based on violation of statute. Shell v. Missouri Pac. R. Co., 132 Mo. App., 528, 112 SWV 39.

80. Under Acts 1901, p. 569, c. 247, & 15, where cause submitted to entire appellate court and four judges do not concur in resume.

01. Certification of constitutionality of suit, case must be transferred to supreme court. Scholz v. Schneck's Estate \[Ind. App.\] 88 NRD 638; Daily v. State, 42 Ind. App. 690, 86 NE 495; Truelove v. Truelove \[Ind. App.\] 86 NE 1000.

01. Federal supreme court will not answer question certified from circuit court of appeals which presents no distinct issue of law but rather calls for decision on whole case. Gustabe Jahn v. Steamship & Folimma, 212 U. S. 354, 53 Law. Ed. & - Questions of mixed law and fact deter-minative of whole case cannot be considered by supreme court on certificate from circuit court of appeals. Chicago, B. & Q. R. Co. v. Williams, 29 S. Ct. 514.

01. Under Burns' Ann. St. 1908, & 1394, if in any case two of the judges of the apellate court are of opinion that a ruling precedent of supreme court is erroneous, the case, with written statement of reasons for such opinion, must be transferred to supreme court. Crawford & McCrimmon Co. v. Gose \[Ind. App.\] 87 NE 709. Burns' Ann. St. 1908, & 1394, providing for filing of pettition for rehearing in appellate court, and for transfer to supreme court on apple-clation of losing party when such pettition is overreuled on ground that decision is conflict with certain specified ruling precedents of that court is remedial statute and to be liberally construed. United
    (SS 15) _O. Remand or final determination._"See 11 C. L. 248.--On reversal the ordinary practice is to remand for a new trial." As a general rule, however, where the court has all the facts before it and it appears that but one result could legally and justly be rendered on a new trial, judgment absolute may be rendered," or the

set down for argument and submitted without-out objection. Id. Certificate setting forth question as being upon alleged conflict of statue with Bill of Rights provision for-bidding taking of property without due process authors' supremme court to consider state in light of constitutional provision directing such legislation. Dupree v. State (Tex.1113 SW 801.

SLS. Snyder v. Baird Independent School Dlst. \[Tex.\] 113 SW 621.

S6. Where plainf in error failed to appear when case was regularly reached in state supremme court, and it was regularly submitted for determination in said court, held that he thereby elected to proceed in state court, and waived his right to thereafter move to have case transferred to federal court under Oklahoma enabling act (Act June 16, 1906, c. 335, $ 16, 34 St. 276) as amended by Act March 4, 1907, c. 2911, SS 1, 34 St. 1288, providing for transfer of certain cases pending in federal court of appeals of Indian Territory at time of admission of Oklahoma as a state. Choctaw, O. & G. R. Co., V. Slittel \[Okl.\] 97 B 826.

S7. Search Note: See notes in 2 L. R. A. (N. S.) 362; 8 Ann. Can. S78; 11 Id. 865.

See, also, Appeal and Error, Cent. Dig. 81 4573-4620; Dec. Dig. 81 1175-1178; 8 Cyc. 450-459.

S8. Haughton v. Aetna Life Ins. Co., 41 2nd. App. 527, 85 NE 1050, modifying 42 Ind. App. 627, 85 NE 125. New trial may be granted though appellate court has power to modify judgment. New York Cornice & Skylight Works v. Zipkin, 114 NYS 58. Where supremme court considered that defendant had not been guilty of negligence, but its action in so determining and ordering judgment for defendant might be construed as implied finding that plaintiffs injury was due to negligence of third person not made party, held that case would be remitted to lower court with dijections to grant new trial and cause such third person to be made party defendant. Taylor v. Lumb Knitting Co. \[R. I.\] 70 A 1008. Reversal of judgment for plainf on ground that facts proved did not entitle her to recover held not entitle defendant to have mandate instructing lower court to direct verdict in his favor, plainf being entitled to new trial. Gen. St. 1902, 802. Fay V. Hartford & S. R. Co. \[Conn.\] 71 A 734. Where averments of complaint and answers to interrogatories did not show negligence in manner complained of, but did show state of facts that might sustain action on ground that defendant was negligent in other particulars, held that, on reversal of judgment for plaintiff, new trial would be granted with leave to amend. Vigo Cooperage Co. v. Keennedy, 42 Ind. App. 433, 85 NE 986.

Where evidence furnishes no substantial basis for amount of verdict or for a reduction thereof, new trial should be granted. Abrishkov V. Ryan, 130 App. Div. 429, 114 NYS 978. New trial ordered rather than appellate court will otherwise do what the lower court should have done," or re-mand the case with specific directions as to the disposition thereof," particularly

broker was not procuring cause of sale, 90. Rev. St. 1895, art. 1027. Lewright v. judgment was properly reversed without \[Tex. Civ. App.\] 119 SWV 721; McCremand. Stone & Co. v. Ferry, 239 Ill. 606, 84. Where cause fully developed in trial facets conclusive against plaintiff's right of \[Tex. Civ. App.\] 112 SWV 748. Though sale of mortgaged premises, 234. Where on appeal from order denying \[Ande under vacated decree of foreclosure and without subsequent decree having been \[Read fault\]\], and without subsequent decree having been \[Read fault\]\], and using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read fault\]\], using \[Read\]\], using \[Read fault\]\], using \[Read\]\], using \[

## Appendix A Appendix and Review SS 15C

### 13.1.

The main goal of this section is to provide a summary of the results of the section.

### 13.2.

The section is devoted to the following section.

- 13.3.1.1.2.3.4.5.6.7.7.8.

if the case was heard below upon an agreed statement,92 or by the court without a jury,93 or where the parties have so stipulated.94 This power will not, however, be exercised in a doubtful case,95 or where the result may be changed by further evidence,96 or by an amendment of the pleeadings,97 or where the case was not fully

subject-matter, which finding was 'relevant' or could be made to by proper amendment. to issues, though not ultimate issueable con-
Rowe v. Allison \[Ark.\] 112 SVW 39%. Whereclusion of fact set forth in complaint. Held conclusions of law in case tried to court that judgment would be reversed and case without jury are erroneous, is duty of court remended for trial, upon supplemental com-

of appeals to render such judgment as trial plain, whether there was negligence or account should have rendered under the law. quiescence on part of party seeking relief. First Nat. Bank v. McElroy \[Tex. Civ. App.\] Moehlenpah v. Mayhew \[Vis.\] 119 NW 88%. 111 SWW 861. Where we right to jury trial, Where cause must be reversed and re-

surreme court may direct entry of partule-

manded for new trial on original cause of

action, ancillary proceeding of attachment

which will have that effect. Prentice v. must also be remended with instructions to

Crane, 240, 112, 58 NNE 654.

sustain attachment if judgment for plain-

94. See, also, Stlpuilations, 12 C. L. 1962,

tiff obtained and otherwise to dissolve. Appellate division reversed judgment for

Hogg v. Thurman \[Ark.\] 117 SW 107%.

plaintiff on law and facts, and granted new

Since responsibility of employer for acts of

trial. Plaintiff appealed to court of ap-

superintendent under employer's liability

peals, stipulating that in case of affirmance

act differs in some material respects from

judgment absolute should go against him,

his common-law liability for conscious unf-

Held that court of appeals would render

fering before death, held that, where com-

judgment absolute against him instead, of

plaintiff sought to recover both under status

and at common-law in separate counts, and

N. Y. 79, 88 NE 831.

new trial was granted as to count under

94. See, also, Stlpuilations, 12 C. L. 1962,

statto, verdict on other count being

alpapellate court cannot satisfactorily deter-

lowed to stand, new trial would not be

mine facts from evidence, and attempt to

ited to questions of damages. Dulign V. 0.60, 201 Mass, 227, 87

NNE 567. Under Comp. Laws 1907, 1 3204,

ment not rendered on reversal where would

where findings are uncertain and insum-

be impracticable to determine proper

cient, case will be remended with direction-

amount with justice to both parties and

tions to vacate findings and judgment

without determining question of fact, but

make findings of fact on all issues, to eq-

case remended. Houston Fire & Marine

rately make conclusions of law on facts

Ins. Co. V. Swathi \[Tex. Civ. App.\] 114 SWW

found and enter judgment accordingly.

149. Where it was impossible from evl-

Utah Assr'n of Credit Men v. Home Fire Ins.

decence to determine value of property in

Co. \[Utah\] 102 P 631. Where in suit to re-

controversy upon which result depended,

strain defendant from Interfering by operation

held that case would be remended for fur-

ation of splash Adams with use of water for

ther inquiry on that subject. Griswold v.

power purposes, court could not determine

from pleeadings and evidence whether Adams

96. Where record indicates that other evl-

could be changed or modified and extent to

dence may be obtained. Dunn v. Taylor

which could be modified so as not to inter-

\[Tex.\] 118 SW 865; Paris & G. N. R. Co. v.

fore with floating of logs, held that on

Rebinson \[Tex. Civ. App.\] 114 SWW 668.

reversal case would be remended with

diverse evidence shows plaintiff entitled to

reclations to determine such questions. Truil-

linger v. Howe \[Or.\] 99 P 880.

terminated on another trial, cause will be

92. On modification of judgment final

randomed. Police Jury v., Texas & P. R.

judgment may be rendered. Granger v.,

Appenal plaintiff confessed error in that

Empire State Surety Co., 123 App. Dlv. 437,

116 NYS 978.

93. May render final judgment on reverse-

the rules of proof on his part, and

ing judgment in case tried without a jury.

Taylor v. Welsh, 138 III. App. 190. Where

evidence on element case tried by court

shows title in plaintiff and conclusions of

trial court are properly presented, Judge

another appeal, since on retrial case would

ment for plaintiff will be rendered on re-

versal of judgment for defendant. Vary v.

introduce additional testimony, etc. City

Sensabaugh \[Ala.\] 47 S 196. On appeal in

eduity case, supreme court may: render

by49.

yudgment which equity and justice would

require, after considering evidence. Jones

sustain it, judgment will not be rendered tried below." The appellate court has no power to remand except for matter appearing upon the record at the time of reversal or affirmance." In many instances where the error can be corrected by the appellate court, the judgment will be modified so as to eliminate the error and as thus modified be affirmed,1 especially where

SWPs 893. Reversal on account of erroneously excluded evidence does not warrant judgment on such evidence in appellate court. Id. On reversal of judgment for defendersaid for failure of proof held that judgment non obstante would not be granted since on new trail defendant might be able to supply defect in his proof. Rieck v. Daige \[N. D.\] 117 NW 846. In personal injury action where evidence is such that verdict should be set aside, appellate court will reverse and remand cease for new trial, unless evident that plaintiff cannot present better case. Hoylman v. Kanawha & M. R. Co. \[W. Va.\] 64 SB 526.

97. Where petition disclosed cause of action defectively stated, but objections thereto were made for first time by objections to evidence, which were sustained, held that, in interests of justice, judgment for defendant would be reversed and case remanded with leave to plaintiff to amend. Seruggs v. Enndom \[LA.\] 49 SB 630. On appeal from decree of single justice in equity suit, where defendant made motion to be allowed to file supplemental answer in bar, held that decree would be vacated and case remitted for hearing on questions whether he should be allowed to file such answer, and, if films was allowed, for further hearing upon matters set up therein, preserving to parties right to appeal. Old Dominion Copper Mining & Smelling Co. v. Bigelow, 199 Mass. 488, 86 NE 660. Though, where were no exceptions below to evidence or to sufficiency of averments of bill, appellate court may, under Code Pub. Gen. Laws 1904, art. 5, $ 36, decree according to proof, whether allegata and probata correspond or not, held that, where bill was filed and evidence offered on theory that court was authorized to restore property of divorced wife, purchased by her and conveyed to herself and her husband, apart from theory that she was coerced or unduly influenced into having conveyance so made, case would be remanded so that bill might be amended so as to allegce coercion and undue influence, and parties might have opportunity to present evidence on that issue. Reed v. Reed, 109 Md. 690, 72 A 414. If necessary to accomplish ends of justice, supreme court may give leave to amend pleadings, or introduce additional evidence. Prentice v. Cranee, 240 IL. 250, 88 NE 664. Where amended petition stated a case for damages in excess of trial court's jurisdiction but original petition was not of record on appeal, case remanded for trial upon original petition, if it is within trial court's jurisdiction, or upon a proper amendment thereof. International & G. N. R. Co. v. Flory \[Tex. Civ. App.\] 118 SV 1116.

01. On reversal of judgment for defendant in action for conversation against purchaser of mortgaged chattles from mortgaged chattles from mortgaged chattles to be held that appellate court could not render judgment against said purchaser for its value, where lower court did not find its value. Adams-Burka-Simmons Co. v. Hays \[Tex. Civ. App.\] 116 SW 167. Per the error is merely formal or clerical,\* or a mere matter of computation,\* but a judgment will not be modified on affirmance where to do so would embarrass respondent in proceeding against persons secondarily liable.\* More excessiveness in amount may usually be cured by requiring a remititur as a condition of affirmance,\* and the same is true of other errors where the amount recovered by reason

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\\begin{ thereof may be determined.6 A party may also sometimes prevent a reversal by voluntarily abandoning a part of the relief claimed.7 As between remand or dismissal of the case, the cause will be remanded.8 In some states the case may be remanded on motion for further proceedings before determination of the questions involved.9

(8 15) \_D. Findings, conclusions and opinions on which decision is predicated.10 See 11 C. L. 248...\_It is usually not the province of an appellate court, except where the trial is de novo, to make findings of fact,11 but courts of intermediate re-

v. Flarsheim \[Mo, App.\] 119 SV 17; Yersy \[Instruction. Beanchamp v. Williams \[Tex. v. Helena L. & R. Co. \[Mont.\] 102 P 810; Civ. App.\] 115 SW 120. Ord Hardware Co. v. Case Threshing Mach. \[Ncb.\] 119 NW 882; Armstrong v. Auh-

Turn \[Neb.\] 122 NWV 43; Berry v. Chester \[Okl.\] 100 P 519; St. Louis S. W. R. Co. v.

Code \[Tex. Civ. App.\] 118 SW 316; St. Louis S. W. R. Co. v. Allen \[Tex. Civ. App.\] 117 SW 923; Houston & T. C. R. Co. v. Rogers \[Tex. Civ. App.\] 117 SW 1053; Tatum v.

Kincannon \[Tex. Civ. App.\] 119 SW 118; City of FT. Worth v. Williams \[Tex. Civ. App.\] 119 SW 113; Gopgan v. Garner \[Tex. Civ. App.\] 119 SW 341; Nethery v. Nelson, 51 Wash. 624, 99 P 879; Nelson v. Western

Steam Nav. Co. \[Wash.\] 100 P 325; Olson v. Erickson \[Vwash.\] 102 P 400; Bruner v. Kansas Moline Flow Co. \[C. C. A.\] 168 F 218. Remititur as condition to reversal of order granting new trial proper where pre-

vluosity accepted by plaintiff on denial of new trial which order was afterward set aside. Chandler v. Glody, 217 Mo. 344, 116 SWV 1073. Where plaintiff offers to remit excess damages. Texas & P. R. Co. v. Graffeo \[Tex. Civ. App.\] 118 SWV 873. Erronecus item deduced from judgment pursuant to remititur filed by counsel, and judgment as reduced affirmed. Houston & T. C. R. Co. v. Cheatham \[Tex. Civ. App.\] 115 SWV 777. Order granting new trial because of excessive verdict unless defamation paid reduced amount within specified time modified to permit new trial unless plaintiff remits excessive amount. Hall \[Nothresystem R. Co., 81 S. C. 52, 62 SE 848. Jackson v. Southern Cotton Oil Co., 81 S. C. 654, 62 SE 854.

Held not curable by remittur: Where question of punitive damages was improperly submitted to jury and was no means of excluding such damages. Taber v. Seasonar Air Line R. Co., 81 S. C. 317, 62 SE 811. Judgment in excess of amount endangered on summons. American Audit Co. v. Miller, 11 Ohio C. C. (N. S.) 868. Verdict held so excessive that only proper course was to grant new trial. Johnson v. Great Northern R. Co. \[Min.\] 119 NW 1061.

6. Admission of evidence. Greve v. Echo Oil Co., 8 Cal. App. 275, 96 P 904. Rejection of evidence. Hill v. Walker \[C. C. A.\] 167 F 241. Erronecus Instruction. Clapp v. Vatcher \[Cal. App.\] 99 P 549; Slitz v. Springer, 236 Ill. 276, 85 IN 748; Schwitters v. Springer, 236 Ill. 271, 86 NE 102; Eaton v. Blackburn \[Or.\] 97 P 539, former opinion \[Or.\] 96 P 870. Special findings inconsistent with verdict. Francis v. Brock \[Kan.\] 102 P 472.

Held not curable by remittur: Award of damages held not separable so that case was remanded for new trial notwithstanding-

Ing office to remit item based on erroneous view are often required to make such findings.12 A written opinion is not always required.13 In some states a decision must be rendered within a specified time.14 An opinion of the appellate court is not such a final judgment or decree as will support a plea of former adjudication.18

(SS 15) \_E. Modifying or relieving from appellate decree.16--See 11 C. L. 249--An appellate court may at any time amend its judgment to conform to the decision actually made.17 The power to bring forward a case decided at a previous term, and not remitted to another court, is discretionary.18 A petition to recall a mandate will be denied where it asks the same relief as that sought by a petition for a rehearing previously denied.19

(SS 15) \_F. Mandate and retrial.20--See 11 C. L. 249--Filing of the mandate in the lower court transfers jurisdiction to that court.21 Notice of filing is sometimes

power to make finding of facts which calls (for review by supreme court, or conclusively binds court of common pleas. Gil: 4328, 4432, 4441; Dec. Dig. 1185; 3 Cyc, 472-Jones v. Fronfield, 79 Ohio St., 435, 87 NE 1136; 477.

1137. Will not make finding where evidence (ing up judgment of affirmance by mistake law. Edwards v. Gates \[Tex. Civ. App.\] 120 may be 585.

0001. Appellate court must find ultimate and controlling facts, and not the evidenti-ary facts. Kehoe v. Marshall Field & Co. 237 INL 470, 88 NE 1054. Practice Act 1907, 8120 (Laws 1907, 1, 443). Stone & Co. v. Ferry, 239 INL 606, 88 NE 186. Finding that defendant in error was not guilty of wrongness and injuries averred in declaration held finding of ultimate and controlling facts. Kehoe v. Marshall Field & Co., 237 INL 470, 88 NE 1054. General Order in Bankruptcy, 36, 8 2, held not to require circuit court of appeals, of its own motion, to ascertain and determine in advance of its decision upon an appeal in bankruptcy whether question la raised upon which party is entitled to allowance of appeal to supreme court, but if such right is claimed it should be called to court's attention in advance of decision, with request for findings in event of an adverse finding on question alleged to be appealable. Knapp v. Milwaukee Trust Co. (C. C. A.) 162 F 675.

0001. Burns Ann. St. 1908, 8 1401, does not provide for any written opinion by appellate court where judgment is affirmed. Cleveland, etc. R. Co. v. Van Natta \[Ind. App.\] 88 NE 716. Where judgment affirmed by appellate court and instructions approved without being set out, court would not on petition for rehearing make abstract of such instructions so that sufficiency might be determined in case of application for transfer. Id. Court of civil appeals is not required to file written opinion in afirmed cases not appealable to supreme court. Wright v. Hooker \[Tex. Civ. App.\] 118 SW 765; Markus v. Thompson \[Tex. Civ. App.\] 111 SW 1074, 8120 (Laws 1907, 1, 443).

0001. Appeal dismissed where majority of court could not agree on question within six months after submission of cause, within time. 7, 8 5 requires decision to be rendered, one judge being disqualified and others equally divided. Grand Lodge A. O. U. W. v. Hobbie \[OkL\] 100 P 540.

0001. Lambert v. Rice \[Iowa\] 120 NWW 96.

0001. Search Note: See note in 2 Ann. Cas. 675; 3 Id. 939.

0001. See, also, Appeal and Error, Cent. Dig. 4632-4641; Dec. Dig. 1 1185; 3 Cyc, 472-Jones v. Fronfield, 79 Ohio St., 435, 87 NE 477.

0001. Willing not make finding where evidence (ing up judgment of affirmance by mistake law. Edwards v. Gates \[Tex. Civ. App.\] 120 may be 585.

0001. Appellate court must find ultimate and controlling facts, and not the evidenti-ary facts. Kehoe v. Marshall Field & Co. 237 INL 470, 88 NE 1054. Practice Act 1907, 8120 (Laws 1907, 1, 443). Stone & Co. v. Ferry, 239 INL 606, 88 NE 186. Finding that defendant in error was not guilty of wrongness and injuries averred in declaration held finding of ultimate and controlling facts, and not the evidenti-ary facts. Kehoe v. Marshall Field & Co., 237 INL 470, 88 NE 1054. General Order in Bankruptcy, 36, 8 2, held not to require circuit court of appeals, of its own motion, to ascertain and determine in advance of its decision upon an appeal in bankruptcy whether question la raised upon which party is entitled to allowance of appeal to supreme court, but if such right is claimed it should be called to court's attention in advance of decision, with request for findings in event of an adverse finding on question alleged to be appealable. Knapp v. Milwaukee Trust Co. (C. C. A.

required." The mandate is conclusive on the court below, which must implicitly follow its directions.23 An unqualified reversal of a judgment leaves the case as

remittittur to enable him to apply for re-hearing. Held that prohibition would not issue to restrain lower court from vacating of apellate court rendered in an earlier judgment, but matter would be left to its discretion. Id. Where supreme court obb-tained jurisdiction by general appearance, and under Ballinger's Ann. Codes & St. & St.

though no judgment had ever been rendered,24 except as to matters adjudicated on the appeal, as to which the decision is the law of the case,25 in so far as the issues

tiff, remedy was by appeal, and not by rule to show cause why court should not enter judgment in conformity with mandate. Barnett v. Cook \[Ky.\] 116 SWY 792. Trial court held to have kept within ruling of Supreme court in admission of certain evidence. Anderson Carriage Co. v. Pungs, 153 Mich. 580, 15 Det. Leg. N. 591, 117 NW 162. In case of general order reversing judggment and remanding without specific directions, further proceedings must be determined from nature of case. Prentice v. Crane, 240 Ill. 250, 88 NE 654. Where judggment reversed on merits and cause re-manded without specific directions, only proceeding is to enter decerce in accordance with opinion. Id. If upon remand for new trial lower court has proceeded in substantial conformity to directions of appellate court, its actions will not be questioned on second appeal. Oklahoma City Elice. Gas & P. Co. v. Baumhoff \[Okl.\] 95 F 758. Judge of circuit court cannot in any way alter judgment of higher court, nor can he exercise any discretion to do otherwise than perform the mere ministerial act of executing judgment of higher court. Moore v. Chattanoga Elee. R. Co. \[Tenn.\] 109 SWY 906. Where at time defendant inter- tedermine effect of mandate. Davis v. Davi vs \[Vt.\] 72 A. 593. Where judgment was reversed and remanded with directions to enter judgment for specified amount, held that trial court had no authority to enter judgment for interest in addition to amount so specified. German-American State Bank v. Sullivan, 50 Wash. 42, 96 F 522. Where judgment reversed on writ of error with costs of appeal, held that circuit court could not direct that certain of costs abide event. Berthold v. Burton, 159 F 495. Where on reversal on writ of error costs were adjudged against certain party, and judgment was made judgment of court below, held that such judgment was beyond control of latter court, regardless of final result of case. Scatcher v. Love \[C. C. A.\] 165 F 58. To attack judgment of trial court for fraud after affirmance, permission of apellate court must be obtained. Kath v. Brown Histogenetic Medicine Co. \[Wash.\] 102 P 424. Motion in supreme court of Oklahoma to dismiss and hold for naught mandate of federal circuit court of appeals in case appealed to it from federal court of Indian Territory, on ground that neither of said courts had jurisdiction of subject-matter, denied without prejudice, it appearing that moving party would have adequate remedy after remand to trial court. Lewis v. Sittel \[Okl.\] 100 P 558. Deeree framed by supreme court, which superior court is directed to enter as framed, is in effect decerce of supreme court. Jasstrum v. McAuslan \[R. I.\] 71 A 454. Ball v. Rankin \[Okl.\] 101 P 1105. Judgment set aside on appeal is entirely destroyed, and rights of parties as to issues tried are left as if no such judgment had been entered. Lawlor v. Merritt \[Conn.\] 71 A 145. Reversal of order setting aside verdict, but omitting to set case for trial, reinstates verdict, and municipal court cannot thereafter set aside verdict and set case with a court. A 145.

## 13 Cur. Law. APPBAL AND REVIEW & 15f.

295

though no judgment had ever been rendered,24 except as to matters adjudicated on the appeal, as to which the decision is the law of the case,25 in so far as the issues for retrial. Murphy v. Jolin, 116 NYS 71E.

Upon reversal of judgment and order denying new trial, a new trial is necessary, and judgment upon prior judgment roll, remittity and opinion of supreme court is error. Davis v. Le Mesanger \[Cad.\] 101 P 910. Where on appeal in equity case order overwriting exceptions to particular finding of fact was reversed and case remanded for proceedings, not inconsistent with opinions, held that, on filling of procedendo, case was here district court precisely as though or-lingally submitted, court being fully ad-used in premises and decision announced through not entered of record. Kossuth County State Bank v. Richardson \[Iowa\] 118 NW 906. Where at time defendant inter- trial lower court has proceeded in substan-posed exceptions to award because of misconduct of arbitractors, he appealed from award, and judgment against him was re-s second appeal. Oklahoma City Elice. Gas & P. Co. v. Baumhoff \[Okl.\] 95 F 758. Judge of circuit court cannot in any way alter disposition was made of exceptions, so far as it affected subsequent trial. Burns v. Pennsylvania R. Co., 222 Pa. 406, 71 A 1054. Upon reversal, judgment ceases to be lien ino judgment of higher court. Moore v. Chattanoga Elee. R. Co. \[Tenn.\] 109 SWY 906. Where at time defendant inter- - 2896

## 13 Cur. Law.

Sav. Bank v. Cotton \[Iowa\] 122 N NVV 149.

from establishing title by adverse posses-

Where petition held deficient in certain par-

ion. McKinnon v. Johnson \[Fla.\] 48 S 9.

101. An issue made by pleangings not inci-

held error to sustain demurrer and dismiss

dental or essential to determination of sub-

action. Johnson v. Babcock Bros, Lumber Co.

\[g.a.\] 63 SE 621. That question was for

and separate matter and which record

jury under evidence. Boyd v. Taylor, 202

Mass. 213, 88 NE 777; McQuister v. Detroit

might have been adjudicated, is not con-

Citizen's St. R. Co. \[Mich.\] 16 Del. Leg. N.

cluded by judgment. Brennan v. Ameri-

416, 122 NW 107. Instructions approved

can Sulphur & Min. Co. \[Colo.\] 100 P 412.

should be used on retrial. Louisville & N.

Judgment that mineral lease to defendant

R. Co. v. Payne \[Ky.\] 118 SW 352. Where

was valid and lease to plaintiff was in-

judgment is reversed for insufficiency of

valid held not to have determined plain-

evidence, verdict should be directed on sec-

off's right to damages for defendant's acts

and trial where evidence is substantially

in ousting him and converting his person-

the same. Crumbough v. Owen, 288 Ill. 497,

alty, that question not having been liti-

#7 NE 312; Block v. Great Northern R. Co.,

gated or in any matter involved. Id. Doc-

106 Minn. 285, 118 NW 1019; Anderson v.

rine of law of case presupposes error in

Union Stockyards Co. \[Neb.\] 120 NW 1124.

unenulation of principle of law applicable

Where Supreme court sent case back for

to facts of case under review. Allen v.

new trial on ground that weight of evidence

Bryant \[Cal.\] 100 P 704. Doctrize is rarely

indicated cause of death by mothsmo-

applied to matters of evidence as distinct

nected with any negligence of defendant,

guished from rulings on questions of law,

held that, evidence at second trial being

and sufficiency of evidence to justify de-

substantially same, it was error to charge

cision must be determined by trial court,

that there was no evidence pointing to such

and is not controlled by opinion of appellate

extraneous cause. Brink v. North Jersey

court that similar evidence on former trial

St. R. Co. \[N. J. Law\] 71 A 1120. That Jus-

was innMoffent to sustain similar decision.

tice's judgment was valid. Simmons v. Id. Trial court is not controlled by conlonlon-

Dolan \[Iowa\] 119 N NV 690. That title to

sion as to matters of fact to be determined

property was in defendant. Young v. Chan-

from evidence. Prentice v. Crane, 240 Ill.

dfer \[Mc.\] 71 A 652. That deed was pre-

250, 88 NE 654. Decision held not to have

cured by fraud. Prentice v. Crane, 240 Ill.

passed on fact questions as finality, so that

250, 88 NE 654. That action of trustees

after remand case stood for trial unaffected

converted defendants tenure of office from

one for indefinite period to one for year.

cided, and was open to consideration on

Wapapelic State Sav. Bank v. Cotton \[Iowa\] 120 NW

122 NW 149. That pla properly designated

720. Decision of appellate division that

waters proposed to be appropriated by

upon certain issue verdict for plaintiff was

boom company. State v. Nicomen Boom Co.

against weight of evidence held not to

\[Vwash.\] 102 P 394. As to liability of sure-

us on guardian's bond. Baum v. Hart-

man, 238 Ill. 519, 87 NE 334. Affirmance

falo Cerecal Co., 195 N. Y. 70, 87 NE 801.

of decree in suit to falsify and surcharge

Where there is no suggestion on appeal

trustees' accounts held to render same a

that there was question of fact for jury,

fnality, both with respect to items to which

reversional as contrary to evidence is no

attention of court was called and all accounts which trustees had settled prior to

institution of suit, including item not men-

v. Minzeshelmer, 116 NYS 890. Where part-

tioned in bill or brought to court's attention, but which might have been. Miller v.

on part of guardian of infannt party or re-

Smith \[Ya.\] 64 SE 956. Where, on over-

port that guardian was unable to make de-

ruling of demurrer to complaint defendant

fenses as required by Civ. Code Prac. & 36,

refused to plead further, but stood upon

unwarer, held that affirmance of judgment

their court after decree and order confirmation-

thereupon and evidence are in legal effect the same,24 and, where rights or property have been parted with, the party who gave them up is entitled to restitution,25 though the contrary has been held as to purchasers of land at a sale pursuant to a judgment subsequently reversed.28 As a general rule a party may amend his pleadings after remand 29 and introduce additional evidence.80 On reversal of an order substitute-

26. Doctrine does not apply where evidence at second trial is substantially different from that offered on former one. Al-

Id. Where defendant sold ranch awarded him by judgment, which was subsequently poured by decision only to extend that it must follow it if same state of facts appears on retrial. Williams v. Butterfield,

recover purchase price also. Id. Rights

214 Mo. 412, 114 SVV 13. Supreme court held

of purchaser in good faith relying upon deducing of court of equity affecting title to quent purchaser because it was not accepted before with or error, will be protected though decree is reversed. Chicago

ord, and remanded case in order that de-

de-
& N. W. R. Co. v. Garrett, 259 Ill. 297, 87 NE

\[command=

\]

upstreamed might have opportunity of introducing any other evidence and of showing

109. Where pending appeal without super-

dedness from foreclosure decree mortgage

that purchaser had actual notice. Held

\[command=

\]

that defendant was not thereby precluded that on reverse or not,

\[command=

\] ing an improper party, the proper party may be given a reasonable opportunity to plead.\[31\] Provision is sometimes made that a retrial must be had within a specified time after remand.\[32\]

SS 16. _Reheating and relief thereon.\[38\]_ See 11 C. L. 252--After final decision, a motion for reheating may, in the discretion of the court, be entertained to correct error or oversight of the court,\[34\] but a rehearing will not be granted where the re-

R. Co. \[S. C.\] 62 SE 1115. To conform plead-

a cause of action can be allowed only upon ings to proof. Hanson v. Cline \[Iowa\] 118 payment of all costs and disbursements NWV 754; Louisville & N. R. Co. v. Hurst

before date of granting relief. Audley v. \[Key.\] 118 SW 291. Where decree is re-

Townsend, 181 App. Div. 79, 115 NTYS 145.

versed because not authorized under alle-

Where judgment is reversed or not sup-

gations of bill complainant. Schmitt v.

ported by complaint motion to amend will

Weber, 239 III, 377, 88 NE 268. In action by

be granted only on payment of all costs

father for wrongful death of son held proper

since service of answer. Woolsey v. Brook-

to allow amendment adding name of

lyn Heights R. Co., 129 App. Div. 410, 113

mother as partly plaintiff. Bracken v. Penn-

NYS 245.

syvania R. Co., 222 PA, 410, 171 A 926. May

30. Prentice v. Crane, 240 Ill. 250, 88 NE

amend to cure jurisdictional defect. Team-

654. Where equity case is remanded for

dle v. Pennsylvania T. Co. \[C. C. A.\] 189 F

proceedings not inconsistent with opinion,

938. No objection to allowance of amend-

trial court has discretionary power, upon

ment to declaration that motion was made

after rescript had been sent from supreme

introduction of evidence omitted through

judicial court, and that new counts stated

inadvertence. Kossuth County State Bank

liability differently from original count, it

v. Richardson \[Tow\] 118 NWV 906. Permission to introduce additional evidence after

at growing out of its failure to perform

its contract, in whatever form it might exist, that was intended to be enforced when

has been discovered, since submission or

action was brought. Commonwealth v. Na-

acts have occurred pending the proceedings

tional Cont Co., 201 Mass. 248, 87 NE 590.

Assignees of bank permitted to file amended

pleading as to disposition of deposit gar-

mished, which might be applied on debt.

Wallace v. Etstill County Deposit Bank

\[Ky.\] 116 SWV 351. Upon remand with opinion that plaintiff has right to damages up

to time of trial, he may file amended petition, not based upon supersedeas bond, for

such damages although they might have

been recorded upon original petition. Cum-

berland Tel. & T. Co. v. Cartswright Creek

Tel. Co. \[Ky.\] 118 SW 798. To justify filling

of amendment after remand of cause heard

de novo on appeal, matters must have arisen

subsequent to decree, or thinks happened

pending proceedings, which could not have

been considered at trial, or owing to some

other contingency which reasonable fore-

sight could not well have guarded against.

Kossuth County State Bank v. Richardson

\[Iowa\] 118 NWV 906. Where equity case was

reversed solely on ground that court erred

in overturning exceptions to particular finding of fact by referee, held that it was error to overrule motion to strike amendment

eliminating paragraph of reply relating to

another matter. Id. Code, 3 &600, author-

lising amendment which does not substantially change claim or defense by conforming pleadings or proceedings to facts proved

held to have no application in such case.

Id. P. S. & 1317, authorizing chanony

cont, after mandate has been filed in cause

determined by supreme court to permit

amended pleadings and hearing by master

of additional evidence, and & 1318, providing for same proceedings as in original

tion after filling of master's report, do not

authorize permission for filling of amended

piedings to losing party after mandate

from supreme court has been filed in case

heard on merits. Sheldon v. Clemons \[V.\] 72 A 687. Amendment for failure to plead

13 Cur. Law.

18 Cur. Law. **APPEAL AND REVIEW $\\lx@sectionsign$ 17.** 209

sult would not be changed,\*\*38 \*\*or to permit the making of a motion which can be made below,\*\*36 \*\*or to consider points not raised on the hearing,\*\*37 \*\*and as a general rule amendments to the record will not be allowed on such an application.\*\*88 **The petition must be filed by a party to the suit**8 **within the time fixed by statute or rule**40 \*\*and before jurisdiction is lost,\*\*41 \*\*and must specify the points relied on.\*\*42 \*\*The necessity for service is governed by statute and the rules of court.\*\*43 \*\*Approval by one or more of the justices is sometimes required.\*\*44 \*\*Affidavits filed in support of the application will not be considered as evidence on the hearing.\*\*45 \*\*On rehearing the original decision may be modified.\*\*46 **SS 17.**\_Liability on bonds, and damages and penalties for delay.\_47 \*\*See 11 C. L. 364 \*\*38, Vhere appellee's motion to affirm on certificate was denied for deficiencies in original certificate on motion for rehearing apellee was not entitled to file amendments during defects, where no excuse for same offered. Sloan v. McMillin \[Tex. City. App.\] 116 SW7 624. New affacavits which form no part of return on appeal cannot be used on reargument to strengthen respondents' position. Mannion v. Steffens, 115 NYS 1087. **80.**\_Arlitus curiae has no standing to apellee.\_48 **and**49 **for** **the** **48** **and** **49** **for** **the** **48** **and** **49** **for** **the** **48** **and** \*\*4
Liability on the bond is alternative,\[48\] becoming absolute upon affirmance of the judgment.\[49\] The conditions and extent of liability on such a bond depends upon the terms of the bond.\[50\] The usual rules of pleading apply.\[51\] The only defense which a snrety on an appeal bond can interpose after affirmance of the judgment is one which wholly or partially discharges him from liability.\[52\] The fact that the 924: Costs, Cent. Dig. $ 983-1003; Dec. Dig. $ 260-263; 11 Cyc. 236, 243; 1 A. & E. Enc. $ 1011.

48. Appeal bond is absolute undertaking to pay followed by condition avoiding obligation if judgment is paid otherwise. Sweeney v. Metropolitan Surety Co., 129 App. Div. 22, 113 NYS 126.

01. "Condemann money" mentioned in conditions of bond under Wilson's Rev. & Ann. St. 1903, $ 474, subd. 1, is found against defendant where judgment of lower court is affirmed by appellate court, and it is unnecessary that judgment of supreme court be for a specific sum of money in order to fix liability. Ryndak v. Seawell (Okl.) 102 P 125. On affirmance of Judge-ment, surety on supersedeas bond becomes dialog to same extent as principal obligor, and issuance of execution against principal on supersedeas bond that bond was not necessary in order to charge surety. Co. \[Ky.\] 112 SWV 1119.

01. "Condemann money" mentioned in conditions of bond under Wilson's Rev. & Ann. St. 1903, $ 474, subd. 1, is found against defendant where judgment of lower court is affirmed by appellate court, and it is unnecessary that judgment of supreme court be for a specific sum of money in order to fix liability. Ryndak v. Seawell (Okl.) 102 P 125. On affirmance of Judge-ment, surety on supersedeas bond becomes dialog to same extent as principal obligor, and issuance of execution against principal on supersedeas bond that bond was not necessary in order to charge surety. Co. \[Ky.\] 112 SWV 1119.

01. "Condemann action by surety on stay supersedeas bond held to have become fixed on date rehearing was denied by supreme court. Id. Plaintiff, who was surety on executor's bond, executed bond indemmifying.

sing surety on supersedeas bond given to perfect executors' appeal from judgment oral v. U. S. Fidelity & Guar Co. \[Ariz.\] against him. Judgment applied from was affirmed. Held that liability of surty on supersedeas bond was primary and operated to benefit of surety on executor's bond, fendants to surety at time of commence-since latter would be relieved from all liability if judgment could be collected from bond against principal and sureties held former or from executor, and contribution could not be demanded from executor's money judgment was rendered by appellate surety by supersedeas supersedeas superty, and hence commit. Ryndak v. Seawell (Okl.) 102 P 126. plaintiff in his capacity as surety on executor's bond was not entitled to complaint, but payment must be pleaded as enjoin collection of judgment from a defense. Sweeney v. Metropolitan Surety Co., 129 App. Div. 22, 113 NYS 126. In action on undertaking to stay execution pending appeal, answer by defendant surety, alleging that prior to entry of judgment, attachment was issued by third person and leveled on plaintiff's cause of action was sufficient to admit proof that cause was one arising on contract and found in county, Millken v. Fidelity & Deposit Co., 129 App. Div. 26, 113 NYS 809. Subject to attachment under Code Civ. Proc. $ 648. Id.

50. "Bond is to be enforced according to its intent as shown by language thereof. Schaefer v. American Bonding & Trust Co., 137 Ill. App. 168. An appeal bond to pay "costs, Interest and damage" does not cover interest on money held in escrow. Id. Measure of recovery against principal by surety on supersedeas bond who pays judgment is amount paid by him, with interest and costs, and same is true where principal has expressly contracted to indemmify him for any loss sustained. Sandoval v. U. S. Fidelity & Guar. Co. \[Ariz.\] 100 P 816. Plaintiff was surety on supersedeas bond, on defendants' appeal to territorial supreme court, where judgment was affirmed. De- principal executes the bond to secure his release from imprisonment for contempt for failure to obey the order appealed from has been held not to preclude recovery on the bond.\[83\] Mere notice of a desire to rescind cannot relieve the surety unless the bond or the statute so provides.\[84\] Summary judgment on the bond may be taken only when authorized by statute \[85\] or by the terms of the bond.\[86\] The surety may pay the amount for which he is liable as soon as the principal is in default, and may then proceed against the principal or his cosmeties for indemnity or repayment.\[87\] The principal is not ordinarily entitled to recover, on behalf of

Wabaska Elec. Co. v. Blue Springs \[Neb.\] |ance and remand, to enter summary judgment against surety on supersedeas bond from county court, judgment was rendered for amount of judgment with interest and costs. Id. Persons signing supersedeas that said judgment should be in full pay- ment of certain other claim by appellees against in which they are given in such managatism apellant. Field that surety was met or to subject themselves to jurisdiction of court in which suit is pending and to for which it had become bound should not be performed. Id. Holiding that judgment agrees when amount of their liability can be applied from was valid held restadida- Fact that plaintiff had taken steps to cool- I12 SWV 111g. Judgment of circuit courting in receivership proceedings against affrming judgment of probate court adjdiag- (default held not election of remedies including him from obtaining summary ward, which was not appealed from, held judgment against surety on supersedeas bond. Id.

speredeas bond given on such appeal.

Ehands v. Haughland \[Ark.\] 112 SWV 184.

S3. Fact that guardian falling to pay judgment against him in favor of ward was imprisoned for contempt by order of proof- (for provision therein that judgment might bat court until he executed bond. Hands v. Haughland \[Ark.\] 112 SWV 184.

e4. After signing and delivery of bond it could only be rescended by mutual agreement of parties and officer or court having jurisdiction over it, or by competent court on showing sufficient ground to invalidate.

judgment in replein need only be conditioned at the end of the story.

Meck v. State \[Ind.\] 88 NEV 289.

55. Code Civ. Proc. $ 942, providing for ex part judgment against sureties on un- (for further provision that surety portakings given to stay proceedings upon appeals "from a judgment or order direct- (in the payment of money," held not to hence judgment so taken was void and pay- (authorise such judgment on undertaking given on appeal from order denying mo- (basis of recovery by it over against option to vacate order directing issuate of (pellant on contract of indemnity. Id. execution and refusing to vacate execution. Wedelon v. Rogers, 154 Cal. 632, 98 P 1070.

Order directing issuate of execution held (mathortized in so far as it purported to that upon indemnity against liability percent different payment of money. Id. Supersedes) undertaking ordered by supreme court is (becoming Ilab. Id. Ex parte judgment enforcible only by action, and not by summary ex parte judgment, under Code Civ. Proc. $ 942, Id. Where state statutes auto- (under changing motion to quash execution, thorize summary judgment against sureties on appeal or supersedeas bond, federal circuit and district courts in that state may render such judgment. Egan v. Chicago G. W. R. Co., 163 F 344. In view of Code Iowa 1897, $ 4140, authorizing supreme court on affrming judgment to render judgment on appeal bond on motion in case damages can be ascertained without an issue and trial, and of fact that it is not practice of federal appellate court, on affrming judgment in action at law to re- (der judgment anew, but that practice is to remand case with directions, held that, un- (der conformity act (Rev. St 914), circuit court sitting in Iowa had power, on affrm- (10 days from entry of judgment, surety on
302APPEAL AND REVIEW $ 18. 13Cur. Law.

the surely who does not complain, money improvidently paid by the latter in satisfaction of a void judgment. \[64\]

_Damages and penalties for delay_ See 11 C. L. 255 are allowed in some states, \[65, 60\]

$ 18. _Costs_ See 11 C. L. 256 on proceedings for review are elsewhere treated. \[61\]

**APPEARANCE.**

_The scope of this topic is noted below. \[62\]_

$ 1. General; Special; Wheat Constitutes $ $ 2. Effect, 305. Withdrawal or Vacation, Each, 302. Special Appearance, 304. $ 2. Who May Make or Enter, 304.\_

$ 1. _General; special; what constitutes each. \[63\] General appearance. \[64\]_

$ 256. As a general rule, an appearance for any other purpose than to question the supersedeas bond given on appeal to terri-

Coast & P. R. Co. v. McFarland \[Ga.\] 64

torial supreme court had right to pay judg-

ment, though 60 days from entry of

NV 1986. Damages will not be awarded

judgment had not elapsed, and having done

so could recover amount thereof from prin-

tions of law are involved, although appeal

cipal. Sandoval, V. U. S. Fidelity & Gunar.

is without merit. Chicago Union Trac, Co.

Co. \[Arin.\] 100 P 816. Fact that mandate

of territorial supreme court had not been

authorized by Act of May 19, 1897, P. L. 67,

sent down at date of said payment held

not allowed where contentions of appellant

immaterial. Id. Civ. Code 1901, lit. 8, c. 1,

are bonus fede though vacuatious.

Kline v.

par. 418, providing for revocation of license

Polish Nat. Catholic Church, 33 Pa. Super.

of surety company for failure to pay any

Ct. 578. Rule as to allowance of additional

final judgment within 30 days after its ren-

costs is absolute where there is no showing

dition, held to confer no authority on

of good faith, as where no argument was

governor to revoke license for such failure

made in support of a new trial and no fur-

so that fact payment was made by reason

ther steps taken after the taking of the

of his threat to do was immaterial, particu-

appeal. Ebert v. Kaufmann, 34 Pa. Super.

larly where forfeiture had already been

Ct. 487. Damages will not be awarded un-

incurred when it was made. Id.

GR Ball. Ann. Codes & St. $ 652 (Pierce's

SS, Held not entitled to do so either un-

Code, $ 1070) where appeal is proceeded in

der City, Code $ 1559, authorizing third

party to save on contract made for his bene-

title merit in appeal itself. Ferrandini v.

fit, or under Code Civ. Proc. $ 1050, Civ.

Bankers' Life Ass'n, 51 Wash. 442, 99 P 6.

Code $ 2846, authorizing surety to save

Civ. Code Prac. $ 746, providing that on

compel principal to fulfill obligation for

whick sunety has bound himself. More v.

A judgment for payment of money, the col-

Churchill \[Cal.\] 101 P 9. Equity will not

intertain suit on ground that only by such

been superseded, 10 per cent damages on

action can surety be prevented from suing

on indemnity bond given him by principal,

smee principal has defense at law to such

action if brought. Id.

50, 60. Code Civ. Proc. $ 957. Bell v.

v. Cornett, 32 Ky. L. R. 1173, 108 SWV 243.

Camm. \[Cal. App.\] 102 P 25; Galvin v.

Mutual Sav. Bank, 6 Cal. App. 402, 92 P 322.

10 per cent damages on affirance of super-

Ten per cent damages allowed. Pendley

Srede Co. v. Hardwick & Co. \[Ga. App.\] 64

SE 664; Pate-Smith Co. v. H. B. Clafin Co.

\[Ga. App.\] 64 SE 710; Central of Georgia

R. Co. v. Manchester Mfg. Co. \[Ga. App.\] 1299. Right not affected by fact that judg-

64 SE 1128; Atlantic Coast Lane R. Co. v.

Smith \[Ga. App.\] 65 SE 44; St. Louis S. W.

R. Co. v. Poyner \[Tex. Civ. App.\] 109 SWV 1004; Carter v. Ekern \[Tex. Civ. App.\] 115

SVV 272. Damages allowed where no ap-

pearance by brief or counsel and no fund-

mental error on record. Montgomery v.

Buckskin Breeches Co. \[Tex. Civ. App.\] 116

SVV 139. One per cent an judgment allowed,

Reed v. Light, 138 jurisdiction of the court is general." . Thus, a general appearance may be effected by demurring to the declaration or complaint " or by otherwise pleading to the merits," or by motion with regard to the pleadings," or by motion for change of venue," or by motion to set aside the verdict " or judgment," or by appearance at a term subsequent to judgment and consenting to set judgment aside," or by motions or stipulations with reference to ancillary proceedings," or by demanding a jury and setting a case and later resetting it," or by filing interrogatories," or by entering upon a trial of the merits." In some states it is held that, where one prosecutes

54; Dec. Dig. # 1, 4-10; 3 Cyc. 502-511, 525;

nahan, 138 Ill. App. 387. Cross bill filed Equity, Cent. Dig. # 306; 2 A. & E Rnc. P. & P. 588-662.

n'd. MacKenzie v. MacKenzie, 141 Ill. App. 461. Heid general appearance where defendant filed answer in two counts, first \[Neb.\] 119 NV 30. Appearance, taking challenging court's jurisdiction, the second depositions, continuance, and leave to plead. a general denial of petition and later filed "Lingman-St. Louis Implement Co. v. Bent-

ley Bros. Hardware Co. \[Xo. App.\] 118 SWV 600. Continuance and resetting cause.

Out. Ins. Co. \[Mo. App.\] 118 SWV 515.

Cumplio Brewery Co. v. Forgev \[Mo. App.\] 119 387 V 625.

C8. Greer v. Newbill \[Ark.\] 117 SWV 531; Dunbar v. Bell \[Ark.\] 119 SWV 670. Defendant demurred generally to complaint, and

dld not raise question of jurisdiction.

Multnomah Lumber & Eox Co. v. Weston

Bustin v. Hutchinson, 5 Ga. App. 194, 63

Basket & Barrel Co. \[Or.\] 89 P 1046.

SE 49. General demurred is equivalent to

pleading to merits. Carter v. Smith &

Song, 5 Ga. App. 84, 63 SE 932. To demur generally to petition as presenting no cause of action is to plead to merits of

C8. Julin v. Kansas City Star Co., 209

case and it is not error for the court to refuse to dismiss a petition on a subsequent motion of the demurranta on the ground

that they have not been served with proces. Emmett & Co. v. Dekle \[Ga.\] 64 SE

682. Demurrer for improper johler of parties plaintiff. Davis v. Public Service Corp. \[N. Jaw\] 72 A 82. Where defendant filed denurrer out of time, and plaintiff\* are attorney indorsed thereon "this may be filed as of proper date," there was such appearance by plaintiff that he cannot object to court's jurisdiction by subsequent plea. Moyer v. Chicago, etc., R. Co. 168 F

001.

001. Answer to merits. Dunbar v. Bell

\[Ark.\] 119 SWV 670; Wiccarver v. Mercan't

tile Town Mut. Ins. Co. \[Mo. App.\] 117 SWV 6710; Wiccarver v. Mercan't

688; Hendricks v. Calloway, 211 Mo. 536,

111 SWV 60. Oral answer to merits. Kutyn

v. Cohen, 116 NYS 68. In addition to apparsing specially and moving to quash the

111 SWV 60. Oral answer to merits. Kutyn

v. Cohen, 116 NYS 68. In addition to apparsing specially and moving to quash the

111 SWV 60. Oral answer to merits. Kutyn

v. Cohen, 116 NYS 68. In addition to apparsing specially and moving to quash the

111 SWV 61.0.0000.000.000.000.000.00.00.00.00.00.00.00.0.00.0.

an appeal, he thereby enters his appearance and will be before the court on return of the case "fe for all purposes, as though he had entered his appearance when the mandate is filed." On the other hand, it is held in Indiana that taking an appeal from the interlocutory order appointing the receiver is not an appearance."

A general appearance can be effected only by the voluntary act of the party or his counsel."

\_Special appearance.\_See 11 C. L. 258--A party may appear specially to object to the jurisdiction of the court," as where an order is sought vacating some proceeding undertaken in an unauthorized manner," or to set aside a judgment for non-service of process." A special appearance need not always be designated as such," but, after appearing, the party must confine his defense to matters for which a special appearance may be made," unless such matters have to be presented by a plea in abatement, and such a plea is, under the practice of the court, allowed to be filed together with pleas to the merits." A special appearance is not rendered general by the sustaining of a demurrer to a plea in abatement filed on such special appearance," and the rule is the same where a motion made on special appearance is overruled."

\_S 2. Who may make or enter.\_See 11 C. L. 259-- Appearance may be made by a duly authorized " attorney at law."

ning on primary merits of case, held general appearance, although defendant did not plead to declaration. Hotchkiss v. Vanderpoel Co., 139 ILA. App. 325.

**SS3.** Where administrator with will ann- 76. Lower court had no jurisdiction of appellant as he was summoned to appear in different county than one in which he re- 113 SWV 121. Even where judgment is reversed on ground that trial court had not acquired jurisdiction of person of defendant. Foster-Milburn Co. v. Chinn \[Ky.\] 120 SWV 364.

**77.** Pendleton V. Pendleton \[Ky.\] 112 SWV 674; Columbia & P. S. R. Co. v. Moss \[VWash.\] 102 P 439.

**78.** Marshall v. Matson \[Ind.\] 88 NE 339.

**79.** Multinomah Lumber & Box Co. v. Weston \[Basket & Barrel Co. \[Or.\] 98 P 1046. Where one manages case for, or advises or aids his codefendant in trial, this alone does not constitute a voluntary appearance so as to give court jurisdiction of former. Nathan Mig. Co. v. Edna Smelting & Refining Co., 130 App. Div. 518, 114 NYS 1037.

**80.** Carter v. Smith & Sons, 5 Ga. App. 804, 63 SEB 982; MacKenzie v. McKenzie, 141 Ill. App. 126; Herapischner v. Acme Harveyet Co. \[Neb.\] 119 NWV 30. Court rule, providing that, if one appears specially and falls, such appearance will become general, is void. Davidson Bros. Marble Co. v. U. S., 213 U. S. 10, 53 Law. Ed. -- Appearance for purpose of raising question of jurisdiction and removing case to federal court. Commercial Mut. Acc. Co. v. Davis, 213 U. S. 245, 53 Law. Ed. --

**81.** In re Hile's Estate \[Cal.\] 101 P 8; Multinomah Lumber & Box Co. v. Weston Basket & Barrel Co. \[Or.\] 98 P 1046.

**82.** Friedberger v. Stulpunagel, 59 Misc. 498, 112 NYS 89; Thomson V. Patek, 128 Ill. App. 418. Where party on applying for removal to federal court, reserved right to except to the jurisdiction of court on
\_Effect.\_91-See 11 C. L. 250-A general appearance ipso facto 92 confers jurisdiction of the person,93 and hence waives objections based on lack of process,94 defects therein,95 service thereof,96 or return of service.97 A general appearance likewise waives objections based on the venue of personal actions 98 or lack of proper allegations in regard to venue.99 It also waives informality in revivor proceedings,3 or irregularities in orders for examination in supplementary proceedings.3 Jurisdiction of the subject-matter, however, cannot be conferred by appearance,3 and hence, where the service of a writ or process is essential to confer jurisdiction of the
subject-matter, such service is not waived by appearance; 4 but, where the jurisdiction of the subject-matter depends upon the existence of certain facts, a general appearance may operate as an admission of such facts.5 A defect in service upon a nonresident defendant is not cured or waived by the appearance of codefendants.6

Footnote 19: https://www.

- \[18\] Cur. Law. ARBITRATION AND AWARD SS 2. 807

## Abstraction and Award

The scope of this topic is noted below.\[18\]

- \[1\] The Remedy in General, 307. Effect, 310. Effect, 310. Effect, 310. Effect-Emitting Submission and Agreements to "ment of Award, 210. Review of Submit, 307. Effect, 308. 3. The Arbitractors and Umpire, 309. 6. International Disputes, 311. 6. Hearing and Procedure Before Arbitra- 7. Statutory Arbitration Between Employs and Employees, 311. 7. 309. 8. The Award; Requisties; Validity, and
- \[1\] The remedy in general.\[16\] See 11 C. L. 202.-Arbitration is a matter depending upon consent and agreement to arbitrate,\[17\] but a statutory arbitration is nevertheless, a judicial proceedings.\[18\]
- \[2\] The submission and agreements to submit.\[18\] See 11 C. L. 202.-At common law, generally, a submission could be made by parol,\[20\] but an exception to the rule prevailed when the title to land was involved.\[21\] The submission should be filed when so required by statute,\[22\] and proper notice should be given.\[28\] More failure
- \[3\] See such topics as Associations and Societies,\* \[3\] 2; Fraternal Mutual Benefit Assocance of the apprenticeship, the second mas- "clations," $ 4; Exchanges and Boards of "trade" Insurance," $ 20; Building and "constructions Contracts," $ 8. This topic re- "tains, however, arbitration of international "ddisputes and statutory arbitration between employers and employers. \[3\] See 10. 24. 107. 170. 171. 172. 173. 174. 175. 176. 1777. 178. 179. 170. 171. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 171. 170. 172. 174. 176. 177. 178. 179. 170. 173. 171. 174. 175. 176. 177. 178. 179. 171. 171. 172. 173. 174. 176. 178. 179. 170. 171. 171. 172. 174. 177. 178. 179. 170. 171. 173. 175. 176. 177. 178. 179. 171. 179. 170. 171. 170. 171. 171. 172. 173. 174. 175. 176. 177. 178. 179. 171. 170. 171. 172. 174. 177. 178. 179. 170. 171. 171. 173. 175. 177. 178. 179. 171. 170. 171. 172. 174. 179. 171. 175. 176. 177. 178. 179. 171. 179. 170. 171. 171. 172. 173. 176. 178. 179. 170. 171. 171. 174. 179. 171. 175. 177. 178. 179. 171. 179. 170. 171. 170. 172. 171. 173. 174. 176. 178. 179. 171. 171. 172. 174. 179. 172. 175. 177. 178. 179. 170. 171. 179. 171. 170. 172. 171. 173. 176. 178. 179. 171. 179. 170. 171. 171. 172. 174. 179. 172. 175. 177. 178. 179. 170. 171. 179. 171. 170. 172. 171. 173. 174. 178. 179. 171. 175. 179. 171. 176. 177. 178. 179. 170. 179. 171. 170. 171. 171. 172. 1 to object to a court's jurisdiction of the subject-matter will not operate as an agreement to submit the matter in controversy to the court as an arbitrator.\[24\]

_Effect_,See 11 C. L. 268

Submissions of disputes to arbitrators are favored by the law,\[25\] but an agreement to submit to arbitration cannot be used to close access to the courts of law,\[26\] and a common-law or naked submission may be revoked at any time before the award is made,\[27\] but the formality of the revocation must follow and conform to the formalities of the submission,\[28\] and where a submission is made under a rule of court, its revocation rests within the sound discretion of the court.\[29\] In any case a revocation to be effective must be made, not only before the submission is made a rule of court, but also before the award is published.\[30\] If the agreement to arbitrate is a part of a contract into which the parties have entered, it can be revoked only by mutual consent.\[31\] The determination of subsidiary or ancillary matters by arbitrators may, by contract, be required as a condition precedent to action, or rather as an element of any cause of action upon or under the contract,\[32\] and in such case action cannot be maintained without such submission;\[38\] but otherwise an agreement to arbitrate will not preclude resort to the courts in the first instance,\[34\] the remedy for breach of the agreement to arbitrate being by action for

pany. City of Eau Claire v. Eau Claire Water Co., 137 Wis. 617, 119 NWV 555. Not necessary to give notice to mortgagee of water company in arbitration proceedings between city and such water company. Id. 24. Dix v. Dix \[Ga.\] 64 SE 790.

25. Horne v. Welsh, 35 P. Bur. Super. Ct. 699.

01. Not competent for parties to stipulate that determination of the question of ownership of property by arbitration should be a condition precedent to the plaintiff's right of action. Dunton v. Westcheater Fire Ins. Co. \[Mc.\] 71 A 1037. Where agreement attempted to leave to arbitrators the decision whether there had been any violation of contract with the stipulation that his decision was to be final, this was not an agreement as to some prelimininary subsidiary or ancillary matter in aid of an action in law or a suit in equity, but an attempt to wholly quest courts of jurisdiction of respecting subject-matter. Bauer v. International Waste Co., 201 Mass. 197, 87 NEB 657.

01. Although parties agree that it shall not be revoked. In such submission court has nothing whatever to do with same until after award is filed and it is therefore left within control of either party. Heritage v. State \[Ind. App.\] 88 NEB 114. Right of either party to a naked submission, to revoke it at any time before an award is made,\[27\] but the formality of the revocation must follow and conform to the formalities of the submission,\[28\] and where a submission is made under a rule of court, its revocation rests within the sound discretion of the court.\[29\] In any case a revocation to be effective must be made, not only before the submission is made a rule of court, but also before the award is published.\[30\] If the agreement to arbitrate is a part of a contract into which the parties have entered, it can be revoked only by mutual consent.\[31\] The determination of subsidiary or ancillary matters by arbitrators may, by contract, be required as a condition precedent to action, or rather as an element of any cause of action upon or under the contract,\[32\] and in such case action cannot be maintained without such submission;\[38\] but otherwise an agreement to arbitrate will not preclude resort to the courts in the first instance,\[34\] the remedy for breach of the agreement to arbitrate being by action for

pany. City of Eau Claire v. Eau Claire Water Co., 137 Wis. 617, 119 NWV 555. Not necessary to give notice to mortgagee of water company in arbitration proceedings between city and such water company. Id. 24. Dix v. Dix \[Ga.\] 64 SE 790.

25. Horne v. Welsh, 35 P. Bur. Super. Ct. 699.

01. Not competent for parties to stipulate that determination of the question of ownership of property by arbitration should be a condition precedent to the plaintiff's right of action. Dunton v. Westcheater Fire Ins. Co. \[Mc.\] 71 A 1037. Where agreement attempted to leave to arbitrators the decision whether there had been any violation of contract with the stipulation that his decision was to be final, this was not an agreement as to some prelimininary subsidiary or ancillary matter in aid of an action in law or a suit in equity, but an attempt to wholly quest courts of jurisdiction of respecting subject-matter. Bauer v. International Waste Co., 201 Mass. 197, 87 NEB 657.

01. Although parties agree that it shall not be revoked. In such submission court has nothing whatever to do with same until after award is filed and it is therefore left within control of either party. Heritage v. State \[Ind. App.\] 88 NEB 114. Right of either party to a naked submission, to revoke it at any time before an award is made,\[27\] the formality of the revocation must follow and conform to the formalities of the submission,\[28\] and where a submission is made under a rule of court, its revocation rests within the sound discretion of the court.\[29\] In any case a revocation to be effective must be made, not only before the submission is made a rule of court, but also before the award is published.\[30\] If the agreement to arbitrate is a part of a contract into which the parties have entered, it can be revoked only by mutual consent.\[31\] The determination of subsidiary or ancillary matters by arbitrators may, by contract, be required as a condition precedent to action, or rather as an element of any cause of action upon or under the contract,\[3 damages for such breach,\[35\] and so also an action for damages will lie for breach of an agreement to arbitrate where such agreement constitutes one of the main considerations of the contract.\[36\]

SS 3. \_The arbitrators and umpire.\[37\]_See 11 C. L. 264_.\_The jurisdiction of arbitrators in statutory arbitration proceedings is a special jurisdiction,\[38\] and it is only by a substantial compliance with all the requirements of the statute that it attaches.\[39\] When an arbitrator has made and delivered his award, the special power conferred upon him ends,\[40\] but, if the award is incomplete, it is competent for him to finish his work by making a full and complete award.\[41\]

SS 4. \_Hearing and procedure before arbitrators.\[42\]_See 11 C. L. 264_.\_Hearings by statutory arbitrators are within statutes relating to judicial proceedings.\[43\] The parties have a right to a hearing,\[44\] and equal opportunity should be afforded each party to be represented by counsel,\[45\] but neither party is entitled to be present when the arbitrators are deliberating on their award.\[46\] The arbitrators have plenary power to decide questions of admissibility, competency, and weight of evidence,\[47\] are themselves competent witnesses before the board,\[48\] and are not confined to testimony from witnesses under oath.\[49\] The submission of a pending cause to an arbitrator waives all defects or omissions in the pleadings.\[50\] All the proceedings, hearings, and deliberations, must be participated in by all the members,\[51\] unless such requirement is waived by the parties.\[52\] Where the parties are present,

right to resort to courts for enforcement of any rights under contract, the lesson could bring suit without submitting to arbitrators.

- 44. Segal v. Fred, 105 Minn. 126, 117 NWV
- 45. In re Picker, 130 App. Div. 88, 114 NYS 289,
- 46. Fair opportunity to present claim to arbitrators, which party is entitled to, and to be present to meet claim of adversary, does not include right to be present when arbitrators are making their award.
- 47. Under submission to determine value of waterworks plant, arbitrators had such power. City of Eau Claire v. Eau Claire Water Co., 137 Wis. 517, 119 NWV 555,
- 48. They are not excluded from use of their expert knowledge in waterworks proceedings. City of Eau Claire v. Eau Claire Water Co., 137 Wis. 157 119 NWV 555.
- 49. City of Eau Claire v. Eau Claire Water Co., 137 Wis. 517, 119 NWV 555.
- 50. Therefore it was open to defendant to urge statute of frauds as a defense before arbitrator though it was not plea/ed. Darrow v. Bramam, 201 Mass. 46, 88 NE 51. Heritage v. State \[Ind. App.\] 88 NE 114.
- 52. Where there were three arbitrators and work was done principally by two, and third arbitrator knew work was being done by others, and complaining party was with arbitrators at different times consulting and advising with them and did not object, such party waived right to object, as it was his duty to see that commission conducted their labors according to agreement and law. Heritage v. State \[Ind. App.\] 88 NE 114.

their failure to object to the misconduct of the arbitrators generally constitutes a waiver of objection on account thereof.\[58\]

SS 5. \_The award; requisites; validity, and effect.\[54\] See 11 C. L. 265--Unless otherwise provided by statute or agreement,\[55\] the award must be the unanimous decision of the arbitrators,\[56\] and must be final and complete,\[57\] but must be confined to the terms of the submission.\[58\]

_Effect.\[58\]_ 11 C. L. 265--An invalid award does not affect the parties or their rights in the subject-matter of the arbitration,\[58\] but, where an award is shown to have been made,\[59\] every presumption is indulged in its favor,\[61\] and it is as final and conclusive between the parties as the judgment of any other tribunal having jurisdiction to decide the question,\[62\] unless reserved by the arbitrators for revision by the court.\[63\]

_Enforcement of award.\[58\]_ 11 C. L. 265--In the absence of successful attack, the party in whose favor an award is made is entitled to judgment thereon,\[64\] but the parties are competent to agree among themselves that one award shall be set off against another and judgment entered only for the difference.\[65\]

_Review of award.\[58\]_ 11 C. L. 267--Although an award may be vacated for certain 113: 3 A. & E. Enc. P. & P. 126.

SSs. Counsel being present and no objec- (mission, what was submitted, and what the nation being taken, exceptions to the award award was. Id.

based upon misconduct of arbitrators were properly dismissed. Burns v. Pennsylvania and satisfactory evidence. City of Eau Claire V. Eau Claire V.

- \[59\] 115 Cur. Law. ARGument and conduct of counsel $ 1.

trial is had without a jury," but refusal to allow argument in the latter case is not necessarily prejudicial error." While it is improper to submit argument in the absence of the opposing counsel," error in such connection is in some cases harmless."

\_The right to open and close.\_See 11 C. L. 209...The plaintiff has the right to open and close in the first instance." Upon a timely application," however, the court will exercise its sound discretion " and permit that party to open and close the argument upon whom rests the burden of proof of the whole case."

273, 274; Dec. Dig. **SS 106-108**, 112; 2 A. & **&** E. Enc. P. & P. **&** P.

- \[13\] Cur. Law. ARGUMENT AND CONDUCT OF COUNSEL SS 3. 313
- \[14\] See 11 C. L. 270. The opening statement "" of counsel should be confined to the issues of the case to be presented." It may be available to show a fact as admitted," but is rarely so conclusive upon the party making it as to warrant judgment being rendered thereon," unless there is no possibility of a proper recovery," and in this connection it will be considered in connection with the pleadings," and taken as true."
- \[15\] 3. _Kind, extent, and mode of argument or comment during trial._"See 11
- \[16\] 4. L. 270.--Argument is a discourse of reasoning tending and intended to establish a position and to induce belief." Its control rests largely, as a matter of duty," in the discretion of the trial court," which discretion will not ordinarily be disturbed." This discretion must not, however, be exercised arbitrarily.1 Considerable latitude of expression is allowed counsel on anything that is a proper subject of argument 2 or comment,3 but greater care of expression is required in a close case,4 and the closing argument should not introduce new matter unless a reply thereto be permitted."

\[17\] 57. \[18\] 65 SE 60. In trespass to try \[19\] 65. \[19\] 65. \[20\] 65 SE 61. In trespass to try \[19\] 65. \[21\] 65. \[22\] 65. \[23\] 65. \[24\] 65. \[25\] 65. \[26\] 65. \[27\] 65. \[28\] 65. \[29\] 65. \[30\] 65. \[31\] 65. \[32\] 65. \[33\] 65. \[34\] 65. \[35\] 65. \[36\] 65. \[37\] 65. \[38\] 65. \[39\] 65. \[40\] 65. \[41\] 65. \[42\] 65. \[43\] 65. \[44\] 65. \[45\] 65. \[46\] 65. \[47\] 65. \[48\] 65. \[49\] 65. \[50\] 65. \[51\] 65. \[52\] 65. \[53\] 65. \[54\] 65. \[55\] 65. \[56\] 65. \[57\] 65. \[58\] 65. \[59\] 65. \[60\] 65. \[59\] 65. \[61\] 65. \[62\] 65. \[63\] 65. \[64\] 65. \[65\] 65. \[66\] 65. \[67\] 65. \[68\] 65. \[69\] 65. \[70\] 65. \[71\] 65. \[72\] 65. \[73\] 65. \[74\] 65. \[75\] 65. \[76\] 65. \[77\] 65. \[78\] 65. \[79\] 65. \[80\] 65. \[81\] 65. \[82\] 65. \[83\] 65. \[84\] 65. \[85\] 65. \[86\] 65. \[87\] 65. \[88\] 65. \[89\] 65. \[90\] 65. \[91\] 65. \[92\] 65. \[93\] 65. \[94\] 65. \[95\] 65. \[96\] 65. \[97\] 65. \[98\] 65. \[99\] 65. \[90\] 65. \[91\] 65. \[92\] 65. \[93\] 65. \[94\] 65. \[95\] 65. \[96\] 65. \[97\] 65. \[98\] 65. \[99\] 65. \[99\] 65. \[90\] 65. \[91\] 65. \[90\] 65. \[91\] 65. \[92\] 65. \[93\] 65. \[94\] 65. \[95\] 65. \[96\] 65. \[97\] 65. \[98\] 65. \[99\] 65.

### Argument and conduct of counsel $ 3. 13 Cur. Law.

Statements of law and reading from decisions or papers pertinent to other cases. See 11 C. L. 27e--Counsel should not misstate the law 6 or speak slightly of decisions of the supreme court of the state,7 nor is it ordinarily in his province to state the rules of law 8 although it is not improper to make a statement as to what he believes to be the law.9 It is not improper for counsel, in the absence of the jury, to read judicial decisions to the court,10 or, in the jury's presence, to read law which is embodied in the instructions given.11 While it is ordinarily improper for counsel to read law books to the jury,12 this matter is in the sound discretion of the court provided no harm results therefrom.13 It is improper to read testimony taken in another trial and which is not in evidence.14

Footnote 13: https://www.cmu.edu/~cmu.edu/~cmu.

self to the issues,\[18\] and should not make, as of his own or the jury's knowledge," statements outside of the evidence,\[19\] or not sustained by evidence,\[21\] nor should the argument be based upon incompetent evidence \[22\] or upon that which has been excluded.\[23\] A fortiori, counsel should not misrepresent the evidence.\[24\]\_Comments on witnesses, parties and counsel,\_See 11 C. L. 273.--While counsel may draw any proper inferences from the evidence,\[28\] or comment on the manner of a

Atkinson Const, Co., 240 Ill. 416, 88 NE 982. \[Jury may know. Rafter v. Chicago City R. Remarks of counsel which simply show his own conclusions on the evidence and not statements of fact, as where counsel re-marked that plaintiff was simple minded and that the did the work trusting that defendant would pay, etc., that parties were not on an equal footing, that it would be fraud to give verdict for defendant. Pry v. Kalbaugh, 34 Utah, 306, 97 P 381. Statement by counsel of what in his opinion under the evidence ordinary prudence would have required a party to have done. St. Louis, etc., R. Co. v. Woodruff \[Ark.\] 115 SWV 953. True statement that it was an unusual case, being based on facts, 11 NWV 829. In section for injury to negro, fact not in evidence as statement that statement by counsel that he did not see hego are coached upon belief while hego are coached upon belief. St. Louis, etc., R. Co. v. R. Higgs \[Ark.\] 118 SWV 644. Statement out-side the evidence, and relevant facts, and going to outside matters having local significance which may appeal to the jurors. Burk v. Reese \[Iowa\] 121 NWV 1016. Suggestion to jury of arbitrary amount in which damages are laid in declaration. Quinn v. Philadelphia Rapid Transit Co. \[Pa.\] 78 A 319. Argument of improper conclusion from evidence held not ground for reversal. Gascoigne v. Metropolitan, etc., R. Co., 143 Ill. App. 547. Where to show improbability of voucher being mis-laid in baby shoe, counsel exhibited such shoe to jury, though it had not been introduced as an exhibit, but jury could not have possibly been misled thereby. Alpena Tp. v. Mainville, 153 Mich. 732, 15 Det. Leg. N. 605, 117 NWV 388. \[El. Robinson V. Monadnock Paper Mith \[N. H.\] 71 A 864; Cumberland Tel. & T. Co. v. Quigley \[Ky.\] 112 SWV 897. \[Za. St. Louis, etc., R. Co. v. Buckner \[Ark.\] 115 SWV 923. \[Zb.\] 115 SWV 923. \[Zb.\] 139 Ill. App. 412. \[Zc.\] 130. \[Zd.\] 131. \[Zd.\] 132. \[Zd.\] 133. \[Zd.\] 134. \[Zd.\] 135. \[Zd.\] 136. \[Zd.\] 137. \[Zd.\] 138. \[Zd.\] 139. \[Zd.\] 139. \[Zd.\] 131. \[Zd.\] 130. \[Zd.\] 132. \[Zd.\] 134. \[Zd.\] 135. \[Zd.\] 136. \[Zd.\] 137. \[Zd.\] 138. \[Zd.\] 139. \[Zd.\] 139. \[Zd.\] 131. \[Zd.\] 130. \[Zd.\] 131. \[Zd.\] 132. \[Zd.\] 133. \[Zd.\] 134. \[Zd.\] 135. \[Zd.\] 136. \[Zd.\] 137. \[Zd.\] 138. \[Zd.\] 139. \[Zd.\] 139. \[Zd.\] 130. \[Zd.\] 131. \[Zd.\] 132. \[Zd.\] 133. \[Zd.\] 134. \[Zd.\] 135. \[Zd.\] 137. \[Zd.\] 138. \[Zd.\] 139. \[Zd.\] 31C ARGUMENT AND CONDUCT OF COUNSEL $ 3. 13 Cur. Law.

witness on the stand,26 it is improper to make imputations, unsupported by the evidence, upon the parties,27 witnesses,28 or opposing counsel,29 or upon a party's right to make objections,30 or his failure to produce witnesses.31 It is likewise improper for counsel to refer favorably to his client's character where it is not an issue,32 or to make favorable reference to his client's instructions in regard to the case.33 There is conflict as to the right to comment upon a party's exercise of a privilege.34_Comments on instructions and special interrogatories.\_See 11 C. L. 274--It is proper for counsel to read an instruction to the jury and to urge them to obey it.33

counsel may refer to interest of witnesses.

culated to make work of opposite counsel St. Louis, etc., R. Co. v. Raines \[Ark.\] 119

infectives by making him ludicrous are imputers as to his veracity and habits of life, 137 TI. App. 454. Private conversation had if warranted by the evidence. Adams v.

Hamilton \[Tex. Civ. App.\] 116 SWP 1168.

proper way to win a difficult case was to 26. Although it may involve the appearance of the witness. Southern R. Co. v. Vright \[Ga. App.\] 64 SE 708.

Dynamics \[Ky.\] 113 SWP 128.

faith of defendant. Cinkovitch v. Thistle Coul Co. \[Towa\] 121 NWP 1036. Denonne- ment of party as one who used criminal laws for collection of debt. Keniston v. Todd \[Towa\] 117 NWP 674. Indement references to the defendant in coarse and vitparetive language held grounds for re- versa. Weinstein v. Asinori, 113 NYS 986.

M. 580, 111 SWP 1139. Objections made to Improper to urge jury to act on their personal. knowledge of a party's character. Georgia R. & Elee. Co. V. Dougherty, 4 Ga. App. 614, 62 SE 158. In action for malicious prosecution, prejudical references to crime for which plaintiff had been indicated and afterwards released. Pickford v. Hudson, 82 App. D. C. 480. Continued intimation in will case that beneficiary was dis-solute person held improper where founded on no evidence. Parker v. Wainwright, 139 III. App. 458.

28, Burk v. Reese \[Towa\] 121 NWP 1016.

Held Improvement to make unsupported imputations on character and good faith of witnesses. Cinkovitch v. Thistle Coul Co. \[Towa\] 121 NWP 1036. Improper for counsel to obtrude upon jury his opinion of veracity of a witness, as statement that party had been before counsel himself when he was judge and that he would not believe such party under oath. Rangenier v. Seattle Ellee. Co. \[Wash.\] 100 P 842. To make implication in questions asked without foundation that witness was nervous. Weber v. Chieago, B. & Q. R. Co., 142 IH. App. 550. To discuss collateral matters so as to dareredit witness. Pickford v. Hudson, 82 App. D. C. 480. To state that doctor had testified falsely for a money consideration. Ferguson v. Truax, 136 Wis. 637, 118 NWP 251. Improper to say that if witness had told the truth he would have lost his job but not reversible error where veracity appears reasonable. Southern Pac. Co. v. Hart \[Tex. Civ. App.\] 116 SWP 415.

Held not Improper to comment on witness's refusal to answer question, when witness refused because he misunderstood court's ruling. Hurst v. Mechlin \[Ky.\] 119 SWP 807.

29. Blitter reflection on opposing counsel Bank v. Reese \[Towa\] 121 NWP 1016. Remark "You have made every boy cry that has been on the stand trying to make him tell a lle" held prejudical. Farrington v. Chepons \[Conn.\] 73 A 139. Remarks cal * 13 Cur. Law. ARGUMENT AND CONDUCT OF COUNSEL $ 3. 317

_Appeals to passion, prejudice and sympathy._ See 11 C. L. 274--Considerable latitude allowed to counsel in their appeals to the jury, \[96\] and they may indulge in oratory, \[37\] but they will not be allowed to make appeals based on matters outside of the case \[38\] and calculated to arouse the passion, prejudice or sympathy of jury, are improper. \[39\] Thus it is improper to contrast the financial condition of the parties \[40\] or to appeal to race prejudice. \[41\]

- 36 Pickford v. Hudson, 32 App. D. C. 480. Language though not in good taste, if not prejudicial and there is an honest attempt on part of counsel to correct any wrong effect, is not reversible error. Groat v. Detroit United R. Co. 153 Mich. 165, 15 Det. Leg. N. 395, 116 N NVV 1081. Statements not reversible error merely because extra-grant. O'Dell v. Goff, 153 Mich. 643, 15 Det. Leg. N. 660, 117 N NVV 59. That salaturey rule that error will be presumed, where trial judge fails to take action with reference to unfair comment on evidence by counsel, or gathers

**SS 4.**\_Conduct and demeanor during trial. \[44\]--See 11 C. L. \[276\]--It is improper for counsel to ask questions, the purpose of which is to get incompetent, \[48\] prejudicial, \[44\] or excluded matter before the jury, \[45\] or to read from a medical book as part of a question asked, \[45\] or to comment upon the fact that the defendant is protected by insurance \[47\] or otherwise. \[48\] Irregularity in the mode of submitting exhibits to the jury is not necessarily ground for reversal. \[49\]

**SS 5.**\_Excess for impropriety. \[50\]--See 11 C. L. \[276\]--While improper remarks by one counsel are ordinarily no excuse for improper remarks by the opposing counsel, \[51\] argument is sometimes permitted as being in reply that otherwise would not be permissible. \[52\]

**SS 6.**\_Objections and rulings. \[88\]--See 11 C. L. \[277\]--Alleged misconduct cannot be reviewed on appeal unless an objection is seasonably interposed, a ruling obtained, and an exception taken, \[54\] and unless the ordinary steps are taken to perfect the appeal and present the matter to the reviewing court. \[88\]

**SS NRE 69.** Remark that defendant would \[examination matters such as to cause Infer- \[dose nothing by verdict as he was simply \[ence that defendant employer was pre- \[erence some rich estate though prejudicted by insurance. Kentucky Wagon didical held not ground for new trial, under \[Mfg. Co. v. Dugancies \[Ky.\] 11 SW 128. instructions. Lund v. Upham \[N. D.\] 116 \[NYV 88.\] 41. St. Louis, etc., R. Co, v. Briggs \[Ark.\] 118 SVV 644. Argument that negg is en- \[this case and possibly not prejudicial\] to same rights as white man is net \[Improper, being merely an argument for \[N. D.\] 117 SWV 446. \[Fex. Civ. App.\] 117 SWV 446. \[Fex. Civ. App.\] 117 SWV 44. \[Fex. Civ. App.\] 117 SWV 446. \[Fex. Civ. App.\] 117 SWV 446. \[Fex. Civ. App.\] 128; against liability sought to be enforced, held not prejudicial. Owensboro Brick & Sewer Spe, also, Trial, Cent. Dig. \[Pipe Co. v. Gienn, 32 KY. L. R. \[803\], 106 SWV 116. \[Fex. Civ. App.\] 136. \[Fex. Civ. National Fulton Brass Mfg. Co. \[Mich.\] 15 Det. Leg. N. \[985\], 118 NWV 925. Question, which counsel knows can- \[n. D.\] 116 NWV 88. \[90\], 118 NWV 49. Handling exhibits to jury without permission of court, held harmless. Wilson v. Faxon, 63 Misc. \[91\], 117 NYV 361. \[90\], 118 NYV 90. Suggestions in questions asked jurors and witnesses that action was brought because defendant was plaintiff's competitor. Liebler v. Carrel \[Mich.\] 15 Det. Leg. N. \[976\], 118 NWV 976. \[91\], 118 NWV 976. \[92\], 118 NWV 976. \[93\], 118 NWV 976. \[94\], Questions containing prejudicial references held improper yet not prejudicial \[error. Savage v. Hayes Bros. Co., 142 III. App. \[96\], 116. \[97\], 118. \[98\], 118. \[99\], 118. \[90\], 118. \[91\], 118. \[92\], 118. \[93\], 118. \[94\], 118. \[95\], 118. \[96\], 118. \[97\], 118. \[98\], 118. \[99\], 118. \[99\], 118. \[90\], 118. \[91\], 118. \[92\], 118. \[93\], 118. \[94\], 118. \[95\], 118. \[96\], 118. \[97\], 118. \[98\], 118. \[99\], 118. \[99\], 118. \[90\], 118. \[91\], 118. \[91\], 118. \[92\], 118. \[93\], 118. \[94\], 118. \[95\], 118. \[96\], 118. \[97\], 118. \[98\], 118. \[99\], 118. \[99\], 118. \[99\], 118. \[90\], 118. \[90\], 118. \[91\], 11

## 7 Action of court or counsel curing objections

See 11 C. L. 176. It is the duty of the court to take proper action to cure errors in connection with argument and conduct of counsel.\[87\] Unless argument or conduct of counsel is such as to preclude the rendition of a fair verdict,\[94\] the harmful effect thereof may be obviated by withdrawal,\[52\] reprimand,\[95\] sustaining objection,\[41\] instructions,\[62\] or by remarks. King v. Chicago, etc., R. Co., 188 Iowa, 625, 116 NVV 719.

Search Note: See Trial, Cent. Dig. **SS 315**, **316**: Dec. Dig. **SS 122**, **133**: \*\*2 A. & E. Enc. P. \*\*& P. **751**.

S7. Where counsel make statements of fact during trial of cause and within hearing of jury, which are prejudicial and in-complement or not at issue, it is duty of judge to interpose and correct wrong without waiting to be reminded of it by opposing counsel, and in default of so doing, or if wrong be one that could not be nulled and therefore required that the jury be discharged and the cause continued and **M** does not manifestly appear to the review.

Ing court that no prejudice in minds of jury resulted from statements, the judgment must be reversed. Dayton Folding Box Co. v. Ruehlman, 11 Ohio C. C. (N. S.) 493. Re-viewing court will not undertake to proportion blame for improper argument provoked by counsel for other side, but where objection is made to such argument, It is a duty which is not merely discretionary on part of trial court to interpose and admon-1sh offender and instruct jury to disregard what has been said, and failure to do is ground for new trial. The Cincinnati Gas & Elee. Co. v. Coffelder, 11 Ohio C. C. (N. S.) 289. Duty of trial judge to check improper conduct or to so charge jury as to relieve prejudice possible to result from improper conduct, even though not requested to do so. Southern R. Co. v. Wright \[Ga. App.\] 64 SE 703. Duty of court to reprimand counsel and instruct jury to disregard statements of facts not in evidence. Boone v. Holder \[Ark.\] 112 SWV 1081. Duty of court to correct statement outside evidence. Neff v. Cameron, 213 Mo. 350, 111 SWV 1138.

GS. Impropriety may be so flagrant as to be incurable, notwithstanding apology of attorney and Instructions of court. Eckels v. Donohue, 137 Ill. App. 106. Abuse may be so flagrant that no admonition of court will cure it. Alaska-Treadwell Gold Min. Co. v. Cheney \[C. C.\] 162 F 693. Error can not away be cured by reprimand. Weber w. Chicago B. & Q. R. Co., 142 Ill. App. 550.

Injury may not always be cured by withdrawal of remark. Chicago City R. C. v. Reddick, 138 Ill. App. 160.

Held not cured: Statement that there was a suppression of evidence. Freeman v. Wilkes-Barre & Wyoming Valley Trac. Co., 36 Pa. Super. Ct. 166. Statement outside evidence that employs of defendant "went to plaintiffs house and tried to settle this case without my knowledge," where defendant claimed to be under no liability. Stein v. Brooklyn, etc., R. Co., 62 Mice. 308, 114 NYS 791. Reading from medical work to jury. Etzkorn v. Oelwein \[Towan\] 120 NWV 636. Use of advertisement as means of attacking parties' reputation for truth and veracity, held not cured by withdrawal of remarks. King v. Chicago, etc., R. Co., 188 Iowa, 625, 116 NVV 719.

Remarks. King v. Chicago, etc., R. Co., 188 Iowa, 625, 116 NVV 719.

S9. Where prompt and reasonable and verdict shows that jury were not inflamed. Texas Midland R. Co. v. Geraldon \[Tex. Cliv. App.\] 117 SWV 1004.

Held cured: Where inflammatory language was used in describing work and treatment of miners in general by defendant. Cinko-1sh edge to interpose and correct wrong with-103. Remarks made in argument cured by withdrawal and disclaimer that they should be considered other than as the opinion of counsel and his statement that he did not wish the jury to consider anything he might say that was not supported by the record.

two or more of such methods combined," or by other curative acts of counsel," parties," or court." Instructions designed to remove the prejudicial effect of improper argument or conduct of counsel are generally presumed to have been heeded by the jury," but no presumption of cure of error in such regard will be indulged where the contrary appears."

Army and Navy; Arragument and Pleas, see latest topical index.

specific instruction on question of negiligence. Hawkins v. Great Northern R. Co. \[Min.\] 119 NW 1070. Improper statement as to measure of damages cured by proper instructions as to true measure. Modlin v. \[Tex. Civ. App.\] 119 SWV 137. Jones & Co. \[Neb.\] 121 NWV 384. Admoni: \[Error, if any, in advising jury to apply thetion for jury to disregard argument not\] \[Golden Rule, cured by withdrawal and supported by evidence whence counsel had \[R. Co., v. Morin \[Tex. Civ. App.\] 116 SWV 112 SWV 897. Verbal instruction at time \[R. also excluded evidence on which it was \[R. also\], and counsel thereupon withdrew his \[R. also\], but no presumption of cure of error in such regard will be \[R. also\], but no presumption of cure of error in such regard will be \[R.

- \[13\] Cur. Law. .

# ARREST AND BINDING OVER SS 2.

13 Cur. Law.

ficer to whom it is directed or into whose hands it may come, does not authorize ar arrest by an officer to whom no warrant is directed and into whose hands no warrant has come.18

_A private person_ See 11 C. L. 179 may ordinarily without a warrant arrest a person for a crime committed in his presence or for a felony, although not committed in his presence,80 where he has reasonable grounds to believe that the person arrested committed it.81 In the latter case, and a fortiori where one is known to be guilty of a felony, his arrest is not merely a matter of right but is a positive duty.82

SS 2. _Priilege from arrest.83_ See 11 C. L. 279

SS 3. _Complaint, afflavit or information to procure warrant.84_ See 11 C. L. 279

Where an afflavit is required as the basis of a prosecution, it must be made before such officer as the statute prescribed,85 and must state a criminal offense 86 in order that a warrant may issue. A complaint or afflavit in its description of the offense is not void where it follows the statutory designation of such offense,87 even though such description would be insufficient in an indictment.88 The complaint is not void merely for failure to give the middle name or initial of the accused,88 and if defective on this account may be amended before trial.80 A complaint on information and belief made before a police court charging a misdemeanor may be sufficient when it is taken into consideration that such magistrate has an opportunity to examine other witnesses besides complainant,91 but it is held that an afflavit averring merely that afflant has cause to believe and does believe the accused guilty, etc., is insufficient.92 A complaint which is authority for the issu\* 13 Cur. Law. -- ARREST AND BINDING OVER SS 5. -- 323

ance of the warrant of arrest is functus officio after the examination of the charge and the taking of testimony and, the commitment of the accused.93

SS 4. \_The warrant and its issuance.94--See 11 C. L. 280--Some warrants are mere notices,95 and the office of any warrant is merely to bring the accused before the court.96 Hence a warrant is unnecessary when the accused in already before the court.97 What officers or courts have jurisdiction to issue warrants is generally determined by statute,98 as is also the manner of signing.98 In order to authorize the issuance of a warrant, a showing is usually required as to the commission of a crime 1 and as to reasonable grounds to believe that the accused committed it.x A warrant is not invalid because it contains surplusage.8 In some states a warrant gives no right to a private person to make an arrest.4

SS 5. _Making arrest, and keeping and disposing of prisoner.8_ See 11 C. L. 280

An officer having express authority under a warrant to arrest a person has also the implied authority to call to his assistance such aid as is necessary to make the arrest,6 and some statutes make it the duty of every private citizen, when required, to assist in making an arrest.7 When a private citizen is authorized to make an arrest.7

- 93. Fact that wife of accused made com-plain is of no consequence on a motion to set aside Information. People v. Gregory, 8 Cal. App. 738, 97 P 912. -- 94. Search Note: See Criminal Law, Cent. Dig. SS 435-458; Dec. Dig. SS 215-220%; 30 A. & E. Enc. L (2ed.) 82; 22 A. & E, Enc. P. & P. 1071. -- 95. Summons from magistrate's court is not commencement of criminal prosecution, being merely intended as a notice. In Hart, 131 App. Div. 661, 116 NYES 193. -- 96. People v. Jeratino, 62 Misc. 587, 116 NYES 111. -- 97. If defendant has been brought before court without warrant, there is then no necessity for its issuance. People v. Jeratino, 62 Misc. 587, 116 NYES 1121. Defective warrant having been issued but defendant having voluntarily appeared and no objections having been made, defect in warrant did not effect validity of judgment. State v. Cale, 150 N. C. 805, 63 SE 958. Where complaint was insulflection, defendant being under recogn'rance, no new warrant was necessary. City of Topeka v. Duvinen \[Kan.\] 97 P 867. Where accused was arrested without a warrant, such fact did not render conviction vold although warrant should have been issued. People v. Jeratino, 62 Misc. 587, 116 NYES 1121. -- 98. City magistrates of New York City held to have power to Issue summons in criminal cases. Ackermann v. Berriman, 61 Misc. 165, 114 NYES 937. Under the laws of Oklahoma when the grand jury returns into district court an indictement for misde-menor, such court is without power to issue a warrant but must transfer case to the court having jurisdiction, and warrant must then be issued by court to which case is transferred. Ex parte Wade \[Okl. Cr. App.\] 100 P 35. -- 99. Cr. Code 1896, $ 5208, provides that whrmant must be signed by magistrate, with his name and initials of office or the same must in some way appear from the warrant. Heid that warrant signed "J. W. Jones" and nothing more to Indicate that he was an official was involved. Reach v. Quinn \[Ala.\] 48 S 540. -- 93. Fact that wife of accused made com-plain is of no consequence on a motion to set aside Information. People v. Gregory, 8 Cal. App.\] 738, 97 P 912. -- 94. Search Note: See Criminal Law, Cent. Dig. SS 435-458; Dec. Dig. SS 215-220%; 30 A. & E. Enc. L (2ed.) 82; 22 A. & E, Enc. P. & P. 1071. -- 95. Summons from magistrate's court is not commencement of criminal prosecution, being merely intended as a notice. In Hart, 131 App. Div. 661, 116 NYES 193. -- 96. People v. Jeratino, 62 Misc. 587, 116 NYES 111. -- 97. If defendant has been brought before court without warrant, there is then no necessity for its issuance. People v. Jeratino, 62 Misc. 587, 116 NYES 1121. Defective warrant having been issued but defendant having voluntarily appeared and no objections having been made, defect in warrant did not effect validity of judgment. State v. Cale, 150 N. C. 805, 63 SE 958. Where complaint was insulflection, defendant being under recogn'rance, no new warrant was necessary. City of Topeka v. Duvinen \[Kan.\] 97 P 867. Where accused was arrested without a warrant, such fact did not render conviction vold although warrant should have been issued. People v. Jeratino, 62 Misc. 587, 116 NYES 1121. -- 98. City magistrates of New York City rest, his rights and powers are the same as those of an officer.8 While an officer is not bound to exhibit his warrant to the person whom it authorizes him to arrest until asked for, he must have the warrant in his possession,9 and, in making the arrest, he should, if there is a reasonable opportunity to do so, inform the accused of the intention to arrest him and of the offense charged, unless the accused already knows such facts.10 When a person is arrested without a warrant, in the actual commission of the offense, it is not necessary to inform him of the cause of his arrest.11 Neither an officer nor a private citizen is ever authorized to use any more force than is necessary to make the arrest.12 An officer has no right to shoot one whom he is attempting to arrest for the violation of a municipal ordinance, even though such person will otherwise escape,13 but one authorized to make an arrest for felony may use such force as reasonably seems necessary, even to the extent of taking life.14 Every person has the right to resist an illegal arrest,15 whether attempted by an officer or a private individual,16 and in resistance to use as much force as is necessary for such purpose.17 Under certain circumstances, an officer has the right to search a suspected person for concealed weapons, although a formal arrest has not been made.18 It is the duty of an officer, when arresting a person without a warrant, to take him immediately before a magistrate for a judicial ascertainment of his probable guilt,19 and, if the arrest is under a warrant, to exercise reasonable diligence in bringing the person arrested before a judicial officer authorized to examine, commit, or receive bail.20 Money belonging to a prisoner which is taken from him on arrest must be returned to him after conviction.21 The regularity of an arrest is waived by a plea of guilty.22

Footnote 20: Moses v. State \[Ga. App.\] 64 SE 690. Where officer impressed 13 Cur. Law. ARREST AND BINDING OVER.

## 6 Preliminary hearing, binding over, or discharge

See 11 C. L. \[88\] Whether a preliminary examination is requisite before the filing of the information is determined by statute \[24\]. Such an examination may be waived \[25\]. The examination must be conducted substantially in the manner prescribed by statute \[26\], but merely directory provisions need not be followed \[27\]. When the jurisdiction of one committing magistrate has attached, an order by another magistrate admitting accused to bail is without force \[28\].

In order to hold the accused and put him on trial, a reasonably clear case must be made out against him \[29\], and the burden is on the state to show that the prisoner is the party charged with the crime \[30\]. A confession may be received and considered by the examining magistrate in connection with other evidence as proof tending to show that an offense has been committed \[31\].

Unless the magistrate has authority to punish \[32\], he can only bind the prisoner clerk by order of trial court, it was not necessary to bring suit for same but clerk \[118\]. Where statute provided that should pay money in accordance with the order of its owner. United States v. Par-examination is granted the cause shall be transferred to the next nearest justice, \[165\].

- 22. Enrie R. Co. v. Reigherd (C. C. A.) 165 "unless the parties otherwise agree," the fact that transcript of first justice failed to affirmatively show that parties had not disproof does not violate proceedings before second justice. Id.
- 23. Enrie R. Co. v. Reigherd (C. C. A.) 165 "unless the parties otherwise agree," the fact that transcript of first justice failed to affirmatively show that parties had not disproof does not violate proceedings before second justice. Id.
- 24. Enrie R. Co. v. Reigherd (C. C. A.) 165 "When the parties otherwise agree," the fact that transcript of first justice failed to affirmatively show that parties had not disproof does not violate proceedings before second justice. Id.
- 25. St. 1898, $ 4786, requiring examining magnitude to examine the complainant is of the information as Act April 15, 1907 directory only. Lundstrum v. State \[IVis.\] (Laws 1907, p. 243) had not taken effect.
- 26. Pippin V. State \[Ala.\] 47 S 266.
- Where a prosecution for murder was begun by compliant under Rev. St. 1899, $ 2441 (Ann. St. 1906, p. 1478) prior to the enactment of Laws 1905, p. 133 (Ann. St. 1906, p. 139) (Ann. St. 1906, p. 1487) provide to the enactment of Laws 1905, p. 133 (Ann. St. 1906, $ 2476a), and accused waived preliminary examination, it was not necessary to accord a preliminary examination because the intention is evidence tending to show the confirmation was filed subsequent to the enactment of law of 1905 which accorded a preliminary examination. State v. Assa-
- 27. Pippin V. State \[Vis.\] (Laws 1907, p. 243) "When the parties otherwise agree," the fact that transcript of first justice failed to affirmatively show that parties had not disproof does not disproof.
- 28. Pippin V. State \[Ala.\] 47 S 266.
- 29. Strict proof is not required, it being only necessary to show that offense has been committed, and that there is probable cause to believe prisoner guilty. Sickles v. State 7 Ohio N. E. (N. S.) 335. The examarin-examination, it was not necessary to accord ing ing mistrate is warranted in acting if there is evidence tending to show the confirmation was filed subsequent to the enactment of an offense and the criminal connection of the accused therewith, from preliminary examination. State v. Assa-
- 21. Mou. 695, 114 SWF 890. Rev. St. 1899, $ 2476a (Ann. St. 1906, p. 1487, amen-ded by Laws 1907, p. 243) providing for a preliminary examination in felony cases did not become effective until July 14, 1907, and therefore does not apply to felony case be-
- 20. Pippin V. State \[Vis.\] (Laws 1907, p. 243) "When the parties otherwise agree," the fact that transcript of first justice failed to affirmatively show that parties had not disproof.
- 21. Pippin V. State \[Ala.\] 47 S 266.
- 22. Pippin V. State \[Ala.\] 47 S 266.
- 23. Pippin V. State \[Ala.\] 47 S 266.
- 24. Pippin V. State \[Ala.\] 47 S 266.
- 25. Pippin V. State \[Ala.\] 47 S 266.
- 26. Pippin V. State \[Ala.\] 47 S 266.
- 27. Pippin V. State \[Ala.\] 47 S 266.
- 28. Pippin V. State \[Ala.\] 47 S 266.
- 29. Strict proof is not required, it being only necessary to show that offense has been committed, and that there is probable cause to believe prison over to the proper court.\[34\] The offense must be properly designated or described in the commitment,\[34\] but an order of commitment which is too general may be aided by other matter.\[35\] The conclusion of a commiting magistrate is in no sense a judgment,\[36\] and is no bar to further prosecution.\[37\] Authority of an examining magistrate to take down the testimony of witnesses in writing and certify same to the proper court is sometimes conferred by statute.\[38\] In Alabama the returning of a process by a justice to the circuit court, without having held a preliminary examination, will be treated as a report that a preliminary investigaiton is then pending before him,\[39\] and such magistrate may thereafter conduct a preliminary hearing of the accused without issuing a new process.\[40\]

## 7 Custody awaiting indiciment for trial.\[41\]

See 7 C. L. 271

Arrest of Judgment; Arrest on Civil Process, see latest topical index.

**ARSON:**

_The scope of this topic is noted below.\[48\]_

**The Crime, 326.**

**Indicnuent and Prosecution, 327.**

**Evidence, Presumptions and Burden of**

**Instructions, S28.**

**Proof, S27.**

**The crime.See 11 C. L. 228.**

The offense of burning the dwelling house of another \[44\] relates to the security of the habitation and not to that of property.\[45\] The mayor in a trial for violation of an ordl-

**Name where imprisonment is prescribed**

**where he bind the defendant over to the**

**of**
**the**
**grand jury, or proceed to try him on the**

**merits. Rev. St. 1536-879. King v. New London, 8 Ohio N. P. (N. S.) 34.**

**S3. Unless one accused of violating Rev. St. 1 4405, governing sale of drugs by registered pharmacists, waive a jury in writing, the magistrate has no authority to punish, and can only bind the prisoner over to the proper court. Sickles v. State, 7 Ohio N. P. (N. S.) 338.**

**S4. "It appearing to me that the offense of committing a lewd and lasclivious act upon the body of a child under the age of 14 years has been committed," etc., sufficently designates the offense defined by Pen. Code $ 283, and meets the requirements of Pen. Code $ 872. People v. Gregory, $ Cal. App. 728, 97 P 912.**

**S5. Where docket of justice of the peace showed merely a finding that a crime had been committed, its character not being stated, an order that defendant be held to answer charge as filed against him in the district court was sufficient where information charged same offense as that described in warrant. State v. Demming \[Kan.\] 100 P 285.**

**S6, 37. State v. Nast, 209 Mo. 708, 108 SVW 563.**

**S5. Because of failure of legislature to enact the provision of the Dummy Code or $ 1463 of Code 1892, there is in Mississippi no authority to do so. Scott v. State \[Miss.\] 46 S 251.**

**39, 40. Pippin v. State \[Ala.\] 47 S 266.**

**41. Search Note See Criminal Law, Cent. Dlg. $ 255, 501-508; Dec. Dig. $ 241; 2 A. & E. Enc. L. (2ed.) $66; 16 A. & E. Enc. P. & P. 818.**

- **Always begin with the latest article on the subject. Use the latest topical index.** 13 Cur. Law. ARSON.

corpus delicit consists of the burning of the house and the fact that a criminal agency was the cause of the burning.\[46\] One who aids, abets, or procures the burning of a building may be prosecuted as a principal offender.\[47\] The statutory crime of willfully burning property with intent to defraud an insurance company is complete, though the policy be void.\[48\]

\_Indictment and prosecution. Indictment or information.\_See 11 C. L. 284--An indictment is sufficient if it charges an offense defined by the statute,\[49\] and for this purpose it is usually sufficient if the charge is laid in the words of the statute.\[50\] The building burned must be so described as to clearly identify it,\[51\] and as ownership is alleged only to identify the property,\[62\] it is proper to allege the dwelling to be that of him who occupies it as a habitation, though he may have no property right therein,\[53\] and this rule has been applied even under a statute relative to the offense of burning one's own house.\[54\]

\_Evidence, presumptions and burden of proof.\_See 11 C. L. 284--In order to convict, the corpus delicit must be proven beyond a reasonable doubt.\[55\] Where noth-

commit the crime of arson by burning the \[sonally or in conjunction with others fehome of his wife with whom he is not \[indiously burned the building or if by alid-living and from which he has been excluded \[indiously, willfully, and maliciously burn 137 Wis. 350, 118 NVV 863. At common law \[indialling, Goldberger v. People \[Colo.\] a wife cannot be guilty of arson in burning 101 F 407.

48. Offense is complete, though policy be husband in burning the dwelling house of his wife, which they jointly occupy as their \[indience, C. Law, 2nd. Ed., p. 258\]; McLeain, Crim. Law, $ 521; May, Crim. Law, Ed., 3, $ 261; Snyder v. People, 26 Mich.

01. Indictment charging burning of aban-106, 12 Am. Rep. 302. It seems that a wife, because of her relationship to her husband, cannot he guilty of the offense in burning \[indiently, even though at the \[indiently, he \[indiently ing appears but the mere fact of destruction by fire, the presumption is that the fire was the result of accidental, natural, or providential cause,50 and the burden is, therefore, on the state to prove, first, a burning,57 and second, that it was a criminal burning.58 The prosecution need not prove the ownership alleged, provided the house is otherwise described sufficiently for the purpose of identification and such identification is sustained by the evidence.59

Footnote 58: https://www.sds.org/

\_Admissibility.\_See 11 C. L. 284--Inculpatory statements made by a codefendant in the defendant's presence and not denied by him 60 are admissible under the general rules of criminal evidence.61 Evidence that the accused consented to a settlement with the insurance companies of the fire loss upon a basis of one-half of the adjusted amount of the loss held admissible as tending to show a guilty mind on the part of the accused 62 and to the same end, evidence that several months before the fire invoices were stamped "paid" which were not in fact paid is also admissible.63

\_Weight and sufficiency.\_See 11 C. L. 285--A conviction may be had upon circumstantial evidence alone.64 Confession alone, uncorroborated by other evidence of the corpus delicti, will not sustain a conviction.63

Footnote 64: https://www.sds.org/

\_Instructions_See 0 C. L. 264 must be applicable to the issues.64

\_Punishment.\_See 0 C. L. 265

Footnote 65: https://www.sds.org/

_The scope of this topic is noted below.67_

Footnote 66: https://www.sds.org/

\_The same as the one in the right of the text.

- \[18\] Cur. Law. **ASSAULT AND BATTERY SS 8.** 329
- \[19\] If the assault is consummated by the infriction of physical injury it is an assault and battery.\[11\]
- \[20\] \_Aggravated assault._See 11 C. L. 288_--Assault with a deadly weapon\[12\] or with felonious intent\[13\] is elsewhere treated. An assault upon a female\[14\] by an adult male\[15\] constitutes an aggravated assault in Texas, but the mere improper solicitation does not.\[16\]
- \[21\] _Defenses._\[17\] _See 11 C. L. 280_--An assault and battery may be justified in defense of property,\[18\] but not ordinarily in the forcible recaption thereof.\[19\] As a general rule, a parent has the right to protect child from any assault,\[9\] but cannot take the part of the child in an altercation in which the latter is in the wrong.\[11\] Only so much force as is reasonably necessary may be used,\[12\] and cruel and unreasonable chatsiement of a child by one in loco parents is an assault and battery.\[13\] No provocation which does not occur in the defendant's presence, or at the immediate time of the difficulty, can be pleaded by the defendant in justification.\[14\]
- \[22\] _Indictment._\[15\] _See 11 C. L. 280_--The indictment need not allege an intent to injure.\[9\] The indictment may charge the assault to have been made by different weapons although there is a slight lapse of time intervening.\[17\] Where, upon an indictment for assault with a dangerous weapon, it is established that the assault if committed at all was with a dangerous weapon, no conviction for assault and 830 ASSAULT AND BATTERY SS 4. 13 Cur. Law.

battery or simple assault can be had.88 A conviction may be had of a lessor offense under an indictment or information charging a greater offense which includes the latter.88

8 4. _Evidence; instructions; verdict; punishment.90 See 11 C. L. 287_ -Threats 91 and other acts and declarations of accused showing animus are admissible if made before 92 or immediately after the assault,93 as is subsequent possession of weapons 94 or evidence relating to the condition of the complaining witness after the assault; 95 but subsequent acts are ordinarily confined to those which are part of the res gestae.96 Where defendant pleads self-defense, evidence tending to show that defendant had no reason to believe himself in imminent danger is admissible.97 Evidence that victim of the assault is proceeding against the defendant for damages suffered in consequence of it, are admissible in mitigation of punishment.98 Collateral transactions,99 such as an assault unconnected with that charged, are inadmissible.1 Defendant may not state whether he did any more

SS. Where defendant admitted hitting the same. Stevens v. State \[Neb.\] 122 NWW plaintiff with revolver, such act constituted 58.

96. It being state's theory that defendant fore he could not be convicted of lesser offensive. Hickey v. U. S. \[C. C. A.\] 168 F 536.

SS. See, generally, Indictment and Prosecution, 12 C. L. 1, Conviction of assault, to assault defendants's own made certain re-complaining witness with a firearm with intent to injure him, properly had under indictment charging the crime of shooting at another with a firearm with intent to kill. State v. Bednar \[N. D.\] 121 NWW 614.

90. Senerch Netes' See notes in 2 Ann. Cas. 234; 11 Ann. Cas. 99.

See, also, Assault and Battery, Cent. Dig. 85 127-170; Dec. Dig. 81 81-100; 2 A. & E. Ehc. L (2ed.) 1002; 2 A. & E. Enc. P. & P. 354.

91. Testimony of prosecector that he sold his crop for less than it was worth because he was advised that defendant would kill him if he remained on the place was admissible. Vanhooser v. State \[Tex. Cr. R.I\] 113 SWW 285. On a trial for aggravated assault, evidence that accused said that if prosecector had come to his place on a certain errand instead of his non he would have killed him was admissible. Roch v. State \[Tex. Cr. R.\] 120 SWW 448.

01. Letter written by defendant some two years before alleged assault was properly admitted to show ill feelings. People v. Reyearfat \[Mich.\] 16 Det. Leg. N. 175, 120 NPV 993.

01. Evidence that, after defendant had shot prosecector, he smoked cigarettes and made no effort to go where prosecector was, was admissible on a trial for aggravated assault. Roch v. State \[Tex. Cr. R.\] 120 SWW 448.

01. Where two persons were charged with assault regardless of human life, it was error to exclude evidence of witness to the effect that about half hour after the shooting one of defendants gave him two revolves, one loaded and the other not. De Blazio v. State \[VWs.\] 121 NWW 131.

01. Not error to permit physician who attended complaining witness after he was stabbed to testify as to nature and extent of wound, together with his treatment of than was necessary in defense of his person.\* Defendant is entitled by way of justification to prove the general reputation of the prosecuting witness in the community where he resided as a violent, quarrelsome, and dangerous man,\* and the prosecution is entitled to contradict such testimony by the evidence of competent witness.\* Where the proof shows an assault and battery, a prima facie case is made out,\* and the defendant must show justification.\* Cases dealing with the sufficiency of the evidence will be found in the notes.\*

\_Instructions.\_See 11 C. L. 287.--An instruction must not deprive defendant of the right to have his proofs as to reputation considered.\* Where the defendant claimed the assault was justifiable, it was not error to charge that defendant should have requested plaintiff to leave before beginning the assault.\* Instructions which are applicable to the issue should not be refused,10 and instructions which unwarrantably raise the standard of self-defense as applied to assault and battery should not be given.11 An instruction should not be given unless there is evidence on which to predicate it,12 nor unless the matter is in issue,18 nor should instructions be given

woman, is inadmissible. Commonwealth v. House \[Pa.1\] 73 A 804, reversing 36 Pa. Super. Ct. 363.

**2.** Question was one for the determination of jury from surrounding facts and circumstances in evidence. Haines V. People, 138 III. App. 49.

**3.** Stevens v. State \[Neb.\] 122 NWV 58. But is not entitled to prove specific acts occurring more than ten years previous alleged assault, with which defendant had no concern. Id.

**4.** Stevens v. State \[Neb.\] 122 NWV 58.

**5,** q.\*\* Badger v. State, 5 Ga. App. 477, 63 SE 532.

**7.** Evidence held sufficient: Evidence held suffficient to support verdict. Thompson v. Shelverton, 131 Ga. 714, 63 SE 220. Evidence held suffficient to support conviction of simple assault. Malone v. State \[Tex. Cr. App.\] 113 SWV 530. Evidence held suffficient to go to jury as to whether defendant assisted another in commission of offense of secret assault. State v. Walker, 149 N. C. 527, 63 SE 76. Testimony of plaintiff that defendant struck him and testimony of officer that defendant told him that he struck plaintiff. Brown v. State \[Ind.\] 85 NE 965. In prosecution for assaulting an officer who attempted to enter defendant's saloon in order to see if Sunday ordinance was being violated, held that testimony of defendant was sufficient to show his guilt. Dotterrer v. State \[Ind.\] 88 NE 689. Where one witness testified that accused kicked prosecutor in head while down and physican who examined wounds testified that one or two of wounds could have been caused by man's shoe, held sufficient to sus-tain conviction. Warren v. State \[Ark.\] 114 SWV 705. Evidence held sufficient to authorize finding that defendant apparently intended present assault with brick upon person of prosecutor. Rutherford v. State, 5 Ga. App. 482, 63 SE 570.

**8.** Instructions that "if upon the other hand you are satisfied in view of all the evidence In the case, that defendant is guilty, then fact that he previously had a good reputation is not a defense," was errorneous. Commonwealth v. House \[Pa.\] 72 A 804, reversing 36 Pa. Super. Ct. 363.

**9.** Held that charge did not assume that which invade the province of jury.14 The instructions should submit all the issues,15 and should be as full as the facts of the case warrant.16

Footnote 14: The author is grateful to the anonymous referee for the support of the National Science Foundation.

_The verdict See 11 C. L. 288 must be definite.17_

_Punishment_.See 11 C. L. 288

**SS 5**. _Civil liability.18 See 11 C. L. 288_--Any application of unlawful force to another,19 or any touching by one person of the person of another in rudeness or in anger gives a right of action.20 Where two persons engage voluntarily in a fight, either can maintain an action against the other.21 While the injury must be intentionally inflicted,22 yet, if inflicted by violence, the law presumes a wrongful intent,23 and the intent is immaterial, if the act is not justified or excusable or with the assent of the person upon whom the act is committed.24\_

_Defenses.25_ See 11 C. L. 289--A trespasser may if necessary be forcibly ejected25 by one in possession, and one who is owner of land cannot plead as a defense, ejectment of person as trespasser, when such property is in possession of another than the owner;26 but neither-this nor any other justification will avail if unnecessary and excessive force be used,27 whether the force used was excessive being for the

sault, facts showed that party assaulted(ing, returned and in reaching for laundry was dealt almost a deadly blow wh'ch broke his knee came in contact with plaintiff's his arm and inflicted serious inj., it was not error to refuse to submit issue of simple assault. Halford v. State \[Tex. Cr. R.\] 120 SW 193. Where conviction was for aggravated assault, court did not err in refusing to give instructions on Pen. Code 1895. 109 Md. 62, 71 A 517.

art. 717, providing that instrument or means by which homolide is committed should be taken into consideration in determining whether party assaulting intended to kill. De Silva v. State \[Miss.\] 47 S 464.

**14**. Error to assume that defendant had made an assault and battery upon proseccuriz. De Silva v. State \[Miss.\] 47 S 464.

**15**. Held that court erred in not directing jury that if there was no specific intent to kill and serious bodily injury was inflicted, or if assault was committed with a deadly weapon under circumstances not amount- (because of 13 Cur. Law. **ASSAULT AND BATTERY SS 5. 333**

jury.${}^{23}$ One who has entered willingly into the difficulty ${}^{29}$ or who provokes the assault by trespass ${}^{30}$ or who otherwise is the aggressor ${}^{31}$ cannot justify the assault on the ground of self-defense. The fact that a peace officer thinks he is acting within his authority is no defense for an assault in exceeding such authority.${}^{42}$ Verbal abuse is no justification,${}^{38}$ though it may be shown as extenuating the assault.${}^{34}$

_Pleading.${}^{88e}$ \*\*11 C. L.${}^{280}$--The petition must allege all the elements of the tort;${}^{35}$ but an allegation of the assault carries with it the allegation of illegality.${}^{30}$ It is not essential that the declaration state the injury with any inducement of the defer.dant's motive or intent ${}^{37}$ or of the circumstances under which the injury was committed.${}^{38}$ Justification must be pleaded.${}^{38}$ A plea son assault demesne must show the facts constituting justification.${}^{40}$_

\_The evidence.${}^{88e}$ \*\*11 C. L.${}^{280}$--Business relations between the parties out of which the difficulty grew may be shown ${}^{41}$ and circumstances bearing on provocation and premeditation are admissible.${}^{42}$ Plaintiff may exonerate himself as to alleged provocation.${}^{48}$ Threats by plaintiff are not ordinarily admissible in the absence of proof of aggression by him.${}^{44}$ Matters relating to irrelevant collateral matter not

trespassed upon defendant's land but did not attempt to assault defendant, held that defendant was not justified in shooting plaintiff. Newcome v. Russell \[LSy.\] 117 SVW 305. Where passenger who had been removed to another car for disorderly conduct sustained & broken jaw by reason of blow delivered by brakeman, held that unhefer the circumstances such violence was unnecessary and constituted assault and battery. Norfolk & W. R. Co. v. Brame \[Va.\] 63 SE 1018. Error for court to instruct that defendant "had right to repel force by force, and in so doing to use such force as defendant then believed was reasonably necessary under the existing circumstances." Doyle v. Cavanaugh, 139 Ill. App. 359.

28 Stucker v. Thompson, 139 Ill. App. 145.

29 In an action for assault and battery in arresting plaintiff for violating a town ordinance, defendant, mayor of the town, could not invoke such defense, he having accepted challenge of plaintiff to go outside corporation. Rutledge v. Rowland \[Aia.\] 49 S 461.

30 Where one who had distress warrant broke locks in order to make distress, he could not lead self-defense as justification of assault upon wife of party who occupied the house. Jones v. Parker, 81 S. C. 214, 62 SE 261. Fact that wife came in house with axe would not justify assault. Id. 81. Where it appeared from evidence that defendant was aggressor, a verdict for defendant on theory that he acted in self-defense is erroneous. Vaughan v. McDaniel \[LArk.\] 117 SVW 532.

32 Assault of peace officer upon person who was attempting to meet wife at entrance of passenger car is not justified because he thought he was enforcing lawful rules made by his superior officer, plaintiff having notified him of his intention. Deragon v. Sero, 137 Wis. 276, 118 NWV 839. Being material only on question of damages. Rohrback v. Pullman's Palace Car Co., 166 F 797; Norfolk & W. R. Co. v. Brame \[Va.\] 63 SE 1018.

34 Norfolk & W. R. Co. v. Brame \[Va.\] 63 SE 1018.

63 SE 1018.

35. Petition, which contained averments to the effect that defendant willfully and maliciously with force and violence pushed and showed plaintiff across room to door and out of door to ground, a distance of six feet, and as result plaintiff's leg was broken and knee crushed and to his damp-age in sum of $5,000, states cause of action for damages for assault and battery. Luttermann v. Romey \[Iowa\] 121 NWV 1040.

01. Luttermann v. Romey \[Iowa\] 121 NWV 1040.

01.

37, 38 Wells v. Boston & M. R. Co. \[Vt.\] 71 A 1103.

39 Not admissible under general denial. Fink v. Busch \[Neb.\] 120 NWV 167.

40. When pleadings did not contain allegation that plaintiff would have beat or ill treated defendant if he had not imme-diately defended himself, and averments were conclusions, unsupported by facts, plea was insufficient. Smith v. Wlckard, 42 Ind. App. 508, 85 NE 1030.

01. Where plaintiff was assaulted while removing potatoes from certain land, a contract for which he claimed to have assigned to defendant as security for loan and defendants connected with the parties to the action are inadmissible."11 Clothing which plaintiff had on at time of assault is admissible in evidence."12 Plaintiff may exclude other possible causes of the injury sued for "13 and defendant is not entitled to show other possible causes long subsequent to the assault."14 The burden of proof is on defendant to show innocence of the intent,"15 and an assault having been shown, the burden is on him to show justification."16 He may give in evidence any opproprovious words used by the plaintiff to him in order to justify his conduct."17 Unnecessary averments need not be proved."18 A party may not state in terms whether he used more force than was necessary."19

_The instructions_ See 11 C. L. 280 must be construed as a whole,"19 must declare the law applicable to every phase of the case,"19 must be applicable to the issue,"19 and 19.

19. Letters written between members of client when so construed. Morris v. Miller families of plaintiff and defendant but not by or to either of them were not admissible to show mitigating circumstances. Jones v. Parker, 81 S. C. 214, 62 SE 261. Instructions that right to arrest without war-Whether plaintiff was drinking at time. Rutledge v. Rowland \[Ala.\] 49 S 461. In an action for assault and battery in arrest-with the rest of charge was correct. Rutcertian saloon some weeks after alleged assault is irrelevant. Id. Evidence that that there was not such a conflict between handcuffs having been taken away before the assault. Id. Evidence that plaintiff had knocked down a marshal who was not a party to the suit is not admissible. Id. 46. Immediately after encounter plaintiff's hat was picked up and was introduced in evidence upon the trial, showing that rent would be over or near point of injury on plaintiff's head. Held that admission was not erroneous. Morris v. Miller \[Neb.\] 119 NW 458.

01. In action for assault and battery in arresting plaintiff, evidence was properly admitted for purpose of showing whether there was anything in calaboose which might have caused injury. Rutledge v. Rowland \[Ala.\] 49 S 461.

01. In action for assault and battery in arresting plaintiff, evidence of difficulty with mayor nearly month after not admisible to show physical condition. Rutledge v. Rowland \[Ala.\] 49 S 461.

01. Luttermann v. Korney \[Iowa\] 121 NW 1040.

01. Johnson v. Daily \[Mo. App.\] 118 SWV 1040.

01. Thompson v. Shelevton, 131 Ga. 714.

01. SS SE 220. Jury must determine, in view of character of provocation and nature and extent of battery, whether such opprovious words amount to a justification, or only to mitigation of damages. Id.

01. Under Code, $ 3659, such averments need not be proved. Luttermann v. Romey \[Iowa\] 121 NW 1040. Where action was to recover for assault and battery and it was alleged that assault was committed for purpose of having sexual Intercourse with plaintiff, held that such intent need not be proven in order to recover. Id.

01. Defendant being asked question whether he used more force than necessary, answered that he did. Held that such question and answer was objectionable. Hubbard v. Louisville, etc., R. Co., 32 Ky. L. R. 1387, 105 SWV 331.

01. Instructions on self defense held suffli-connected with the parties to the action are inadmissible."19 Clothing which plaintiff had on at time of assault is admissible in evidence."19 Plaintiff may exclude other possible causes of the injury sued for "19 and defendant is not entitled to show other possible causes long subsequent to the assault."19 The burden of proof is on defendant to show innocence of the intent,"19 and an assault having been shown, the burden is on him to show justification."19 He may give in evidence any opprovious words used by the plaintiff to him in order to justify his conduct."19 Whenever avements need not be proved."19 A party may not state in terms whether he used more force than was necessary."19

01. The instructions See 11 C. L. 280 must be construed as a whole,"19 must declare the law applicable to every phase of the case,"19 must be applicable to the issue,"19 and 19.

01. Letters written between members of client when so construed. Morris v. Miller families of plaintiff and defendant but not by or to either of them were not admissible to show mitigating circumstances. Jones v. Parker, 81 S. C. 214, 62 SE 261. Instructions that right to arrest without war-whether plaintiff was drinking at time. Rutledge v. Rowland \[Ala.\] 49 S 461. In an action for assault and battery was in arresting plaintiff, fact that the mayor was in effect of charge was correct. Rutledge v. Rowland \[Ala.\] 49 S 461. Held against lorelevant. Id. Evidence that there was not such a conflict between instructions as to mislead jury. Johnson v. Daily \[Mo. App.\] 118 SWV 330.

01. Where from weight of evidence it was apparent that defendant assaulted plaintiff first, self-defense instruction should have been qualified by a provision to the effect that if defendant brought on difficulty by first attacking plaintiff they could not find for defendant, on ground of self-defense. Renfro v. Barlow \[Ky.\] 115 SWV 255.

01. Not error to refuse to give instructions relevant to defense of justification, when such defense is neither alleged nor proved. Fink v. Buech \[Neb.\] 120 NW 167. Though complaint alleged that the assault and battery was committed with intent of having sexual intercourse, the court erred in instructing jury if acts must not ignore or exclude a defense,"7 or assume facts in issue."8 Such instructions only should be given as are justified by the evidence."9 The failure of the court to define "maliciously," which is used several times in its charge to the jury, is not error; the defendant not having made a request for such definition."00

a severable existence \[64\] and be impersonal \[65\] and be survivable in nature." In order that a contract may be assigned, its subject-matter must be certain."

\_Contracts for personal services or otherwise appartureant to persons or specific property.\_See 11 C. L. 291.--An executory contract for personal services, founded on personal trust or confidence, is not assignable \[68\] unless the other party consent to the assignment."

der contrnet whereby wife agreed with '153. Allowance of allmony to be paid in husband in consideration of his transfer to her of all his property to pay to assignor grounds. Id. Right to contest will within of plaintiff $100 per year until $500 was one year after probate as conferred by paid beginning one year after death of husband, but in case of assignor's death at any time the said sum or any unpaid portion thereof to cease absolutely and not in any event to be paid to his heirs. Fearinely v. Fearinely \[Colo\] 98 P 819. Bond for title, Burney Talorling Co. v. Cuzocrit \[Ga\].

65 SE 140. Conditional sale: Receipt containing promise by maker to pay certain sum in stated installments and reserving title in vendor until full payment, although it contains no words of negotiability, under City. Code 1895, $682. Walker V. Carpenter, $Ga. App. 427, $3 SE 576. By common law, balance due and to become due by $567. B. de C. Comp., when lien not re-Lumber Co. \[Misa\] 48 S 968. Certificate of deposit though marked "non-transferable" on its face, such phrase having effect merely to make it non-negotiable. Dollar v. International Banking Corp. \[Cal. App.\] 101 P 34. Debt evidenced by non-negotiable receiver's certificate of indebtedness issued by receiver of street car company, reciting that company was indebted to holder and payable to registered holder. McCarthy v. Crawford, 238 111. 38, $6 NE 750. Written subsection to empirical stock of corporation, under 31 Stat. 1256, c. 584, providing that everything of a liquidated character may be assigned. Crook v. International Trust Co., 32 App. D. C. 490. Earned salary of public officer. Wilkes v. Slivers, 8 Cal. App. 659, 97 P 677. Claims for wages of laborers. Union Trust Co. v. Southern Savmills & Lambert Co. \[C. C. A.1 166 F 193. Laborer's and materialman's right to enforce obligations of warcities on public contractory's bond. Title Guaranty & Trust Co. v. Puget Sound Engine Works \[C. C. A.\] 168 F 168. Grannet's eilma for taxes paid by him and which should, under Mills's Ann. St., $3774, have been paid by grantor. Rambo v. Armstrong \[Colo\]. 100 P 886. Survivable eilma for tort affecting property according to present American doctrine. Hemmers v. Remmers, 217 Mo. 541, 117 SW 1117. Judparent being chose in action. Manson v. Peaks, 103 Me. 430, 69 A 690. HeId not assignable. At common law, no claim for tort to person or property. Remmers v. Remmers, 217 Mo. 541, 117 SW 1117. Claim for personal injuries growing out of tort. Perkins v. Sunset Tel. & T. Co. \[Cal.\] 103 P 190. Unliquidated claim for damages for assault and battery and false imprisonment prior to judgment, although to attorney for fee, being void as against public policy. Tyler v. Superior Court \[R. I.\] 173 A 467. Right of action for personal injuries. Bigelow v. Old Dominion Copper Mining & Smelting Co. \[N. J. Eq.\] 71 A 4 (1998).

- 18Cur. Law. ASSIGNMENTS SS 2.337

\_Assignments of future earnings.\_See 11 C. L. 202--The assignment of the unearned salary of a public officer is contrary to public policy, 70 and though this rule of public policy does not ordinarily apply to the future earnings of any other than a public officer, 71 statutes prohibiting assignment of such earnings are usually held constitutional 72 unless clearly unreasonable and discriminating 78 or an abridgment of personal liberty, 74 but such statutes will be reasonably construed.78 As a general rule an assignment of future earnings must be predicated upon a present employment.78

\_Contingent interests and expectancies.\_See 11 C. L. 203--Contingent interests and expectancies are assignable in equity 77 if coupled with a present interest.78

SS 2. \_Requisites and sufficiency of express assignments.\_See 11 C. L. 203--An assignment need not be formal if the intention to assign be clear.80 It may be sufficient though it states no consideration, 81 contains no date, 82 or does not fully set out the contract assigned 88 or is not attached thereto, 84 provided such contract is sufficiently identified. An assignment of a chose in action implies generally some kind of a definite written acknowledgment, 85 although in most cases a parol as-

- \[Or.\] 100 P 7. Right to object waived by consent. Sheridan v. Reese, 123 La. 1027, 48 S 443. Acceptance of benefits of non-assignable personal contract may constitute implied consent or waiver of objections thereto. Harlow v, Oregonian Pub. Co. \[Or.\] 100 P 7.
- 70. See Officers and Public Employees, 12 C. L. 1151.
- 71. Cox v. Hughes \[Cal. App.\] 102 P 956.
- 72. Burns' Ann. St. 1908, $ 787, prohibiting assignment of future wages and imposing penalty, held constitutional. Chicago & E. R. Co. v. Eberside \[Ind.\] 87 NE 1090. Reasonable restrictions may be placed upon assignment of future wages, and hence St. 1908, $ 714, c. 605, $ 17, 8, requiring such assignments to secure loans less than $200 to have written consent of employer and like consent of wife, if assignor be married, and that assignment be recorded, is constitutional, being proper exercise of pol-12e power. Mutual Loan Co. v. Martell, 200 Mass. 482, $ 86 NE 916. Not unlawful discrimination though it cannot apply to national banks. Id. Not unlawful discrimination against smallenders. Id.
- 73. Act May 13, 1905 (Laws 1905, p. 80), $ 3, making assignment of wages or salary as security for loan tainted with usurly invalid, is unconstitutional as not providing that it shall likewise apply to other usurious contracts. Massie v. Cessna, 239 III. 352, 88 NE 152.
- 74. Act May 13, 1905 (Laws 1905, p. 79), $ 1, providing that assignment of wages or salary shall be invalid unless in writing, acknowledged, served on debtor within three days, and in case of married person also signed and acknowledged by the wife or husband, is unconstitutional as an abridgment of personal liberty. Massie v. Cessna, 239 III. 352, 88 NE 152.
- 75. Acts 1890, p. 194, 124, prohibiting assignment of future wages and providing that act shall not apply to employee engaged by common carrier in interstate commerce, held not to apply to employees of such carrier engaged in intrastate commerce. Chicago & E. R. Co. v. Eberside \[Ind.\] 87 NE 1090.
- 13Cur. L. 233
- \[Or.\] 100 P 7. Cox v. Hughes \[Cal. App.\] 102 P 956.
- 77. Sternberg & Co. v. Lehigh Valley R. Co. \[N. J. Law\] 73 A S9; Bigelow v. Old Dominion Copper Mining & Smelting Co. \[N. J. Eq.\] 71 A 153.
- 78. More naked possibility is not assignable. Cox v. Hughes \[Cal. App.\] 102 P 956.
- 79. Search Note: See notes in 3 C. L. 330, 331.
- 84., 112-129; Dec. Dig. $ 31-46, 53-70; 4 Cyc. 29-35, 37, 39-44, 58, 59, 61-63, 81, 110-112; 2 A. & E. R. Enc. L. (2ed.) 1052.
- 80., Strickland & Co. v. Leesne \[Ala.\] 49 S 233. Formally required at common law is not essential, and assignment may be made either legally, equitably, in writing, by parol, or otherwise. Id. No particular language required. Barnes v. Sim, 80 Neb. 211, 117 NVW 881. Informal language show-ing intention sufficient and hence delivery of insurance policy with written statement of desire to change beneficiary to proposed assignee and statement that if change was not made during his lifetime assignor desired money to be paid to such person, held assignment, where assignor wrote in insurance company signment may be entirely sufficient,86 and an assignment may be valid though the indorsement by which it is purported to be made is invalid,87 and even though there be no indorsement,88 except in cases where indorsement is required by statute.89 An assignment which is in the nature of another instrument must conform with the statutory requirements in regard to such instrument.90 It is important that the assignment be definite and intelligible in its nature 91 and with regard to the persons concerned,92 and the thing assigned,98 and must be more than a mere promise to assign.94 As between the assignor and assignee, an agreement or concession may be a sufficient consideration for the assignment.95 An assignment without consideration may be valid as against the debtor 98 or other obligor.97 A re-assignment may become effective although the consideration received on assignment be not returned.\*\* While the validity of an assignment does not depend upon the consent of one not subject to prejudice thereby,99 consent of the parties is essential to the assignment of a contract personal in its nature.1 Such consent may be implied from acts showing acquiescence.2 That the consent of the parties to have been assigned, and not such as to permit the recipient to make of original entries, are insufficient. Little v. Berry \[Ky.\] 113 SW 902. Assignment by ssw 902.

ssw 902. Sufficient in equity. Little v. Berry \[Ky.\] 113 SW 902. Where formula of Keeley Cure was transferred to corporation for consideration and there was long continued use under claim of ownership acquiesced in by owner. Leslie E. Keeley Co. v. Hargreaves, 238 Ill. 316, 86 NE 122. Assignment of certificate of deposit. McLaiser \[Iowa\] 117 NWP 112. Resignment of claims assigned to bank is commonly made by mere delivery or return of papers. Selleck v. Manhattan Fire Alarm Co., 117 NYS 964.

Statute of frauds: See Frauds, Statute of, 11 C. L. 1609.

87. As where corporation's indorsement of negotiable paper is ultra vires so that it incurs no liability thereby. Winer v. Bank of Birveille \[Ark.\] 117 SW 232.

ssw 88. As between assignor and assignee, indorsement is unnecessary so long as it appears that assignment was in fact made. Galbreath v. Wallrich \[Colo.\] 102 P 1085.

ssw 88. Required under $ 87%, Code 189%, in order to effect assignment of contract.

Bohanan v. Thomas \[Ala.\] 49 S 308.

ssw 90. Assignment of life insurance policies to trustee to be named in will held invalid and not cured by acquiescence of trustee, where it was not acknowledged as required by statute relative to v. Frost, 202 Mass. 100, 88 NE 446. Assignment of salary will not construse as mort mortgage where not in compliance with statutory requirements relating to mortgages as regards acknowledgment. State v. Hurlburt \[Conn.\] 72 A 1078.

91. Written assignment, definite in terms, without reserving control in assignor, intended to convey title of money in hands of agent, held sufficient. Yeiser v. Broadwell \[Neb.\] 119 NW 478.

01. Order addressed to no one in particu-lar but generally to any one for whom plaintiff might be employed or whoed him money held too indefinite or uncertain to be binding on any one. Dugane v.

Heverda Pokrokh No. 4 \[Iowa\] 119 NWV 141.

93. Must set apart chose in action to 1085.

was the inducing cause of the assignment is a sufficient consideration for such consent.\* Assignment of a debt may be made by an order on the debtor,4 but in such case acceptance of the order by the debtor is essential.\* An assignment may be valid against the assignor though procured by fraud of a third party, where the assignee is innocent,6 and may be valid as against the debtor though in fraud of creditors.\* It is essential to the validity of an assignment that the assignor have the right * and capacity * to make it, that the assignee have the right to accept it,10 and that it be delivered to and accepted by the assignee 11 whose identity must be capable of being definitely determined therefrom.12 The assignee must, moreover, have a legal entity at the time of the assignment.13

_Notice to the debtor See 11 C. L. 293_ is essential to the validity of the assignment of a claim or chose in action,14 as between the assignee and debtor,16 but not as between assignee and assignor.16 Notice to a debtor garnishee is sufficient though given after service of the garnishment summons.17

_Record_ See 11 C. L. 194 is usually essential only as notice, except where otherwise provided by statute.18

**SS 3.**_Constructive or equitable assignments.19_See 11 C. L. 294_No particular_

**SS 4.**_Fact that consent given was cause in-ducing assignee to take assignment cont-113 SW 981._

**10.**_National bank may take absolute assignment of contracts between railroad and others. Galbreath v. Wallrich Miller \[Or.\] 97 P 542._

\*\*\[Co.\] 102 P 1085.\_

**11.**_Especially essential where provided_

**4.**_Debtor being owner of building and money assigned being balance due on building contract. Butrick Lumber Co. v. C. Collins, 202 Mass. 413, 89 NE 138._

**5.**_Butrick Lumber Co. v. Collins, 202 Mass. 413, 89 NE 138; Duzane v. Hvezda Polkerku N. 4 (Iowa) 118 NW 141._

**6.**\_Radovsky v._Fall River Sav. Bank, 196 Mass. 557 82 NE 693._

**7.**_Since his duty is merely to pay the money owing to the one having the legal title to the demand, and not to assume to determine who in equity is entitled to it._

\*\*Klng v. Miller \[Or.\] 97 P 542.\_

\*\*Kights of creditors: See Fraudulent Con-115 C. L. 1620.\_

**&** _Must not previously have assigned away all his interest. Remillard v. Robinson \[Minn.\] 121 NW 217: Newberry V. Chicago Lumbering Co., 164 Mich., 84, 15 Det. Leg. N. 663, 117 NW 592; Schwab v. Oatman, 129 App. Div. 274, 113 NYS 910._

\*\*ment held sufficiently assigned by adminstrator. Manson v. Peaks, 103 Me. 430, 69 A 690.\_

**A 690.**_Contractor cannot make valid order on owner for more than amount due. Car-11600 v. Polstein Reality & Const. Co., 62 Misc. 302, 114 NYS 838._

\*\*stand good that certain minor heirs shall upon becoming of age assign their interest in no way constitutes such assignment as will affect such interests, though such agreement be endorsed upon valid assignments of interest of two adult heirs. Assignment of money belonging to principal defendant is void if made after service of garnishment summons. Heillard v. Nance \[Ky.\] 114 SW 277. But not where It appears that such money did not belong to defendant though it was assigned in payment of indebtedness for which he was jointly Ihable with assignor. State Bank of West Union v. Swinney, 135 Mo. App. 1, 115 SW 494.\_

**SS 13.**_Constructive or equitable assignments.19_See 11 C. L. 294_No particular_

**SS 14.**_Fact that consent given was cause in-ducing assignee to take assignment cont-113 SW 981._

**SS 15.**_National bank may take absolute assignment of contracts between railroad and others. Galbreath v. Wallrich Miller \[Or.\] 97 P 542._

\*\*\[Co.\] 102 P 1085.\_

**SS 16.**_Especially essential where provided_

**SS 17.**_Especially essential where provided_

**4.**\_Debtor being owner of building form of words is necessary to constitute a constructive or equitable assignment, any act showing such intention being sufficient.20 An assignment of a portion of a debt or claim is valid,21 but is enforcible against the debtor only in equity.22

SS 4. \_Construction, interpretation and effect.23 See 11 C. L. 200_The assignee immediately succeeds to all the rights and interests of the assignor,24 so as to be protected against any subsequent act of the assignor or debtor,25 and against all subsequent claimants,26 and such priority is not waived by permitting a subsequent

2 A. & E. Enc. L. (2ed.) 1059; 7 A. & E. Enc. P. & P. 730.

20. Instrument sufficient which shows intention of transferring or appropriating the buyer. Schwab v. Oatman, 129 App. fund or chose in action to assignee for val-

Div. 274, 113 NYS 910. Assignee of subas-

uable consideration. Celehour v. Bass, 143

11. App. 630. Equitable assignment of an

prior mortgage. Powell v. Tinsley \[No. account or obligation. Wheleens v. Meyer & App.\] 119 SW7 47. Where physician's claims were agreed to by executor, wife of de-

Held assignment: Written acknowledgg-

cedent to whom such claims were assigned

ment of indebness and agreement to pay

was entitled to recover from executor full

it out of fund in litigation and authorizing

amount of claims. Bente v. Sullivan \[Tex. and consenting to entry of such order by

Civ. App.\] 115 SW7 350. Assignee of lease

court whenever same shall be applied for.

and option to purchase is entitled to com-

Colehour v. Bass, 143 Ill. App. 530. To

plete purchase at price agreed in manner

third party paying claim. Barry v. Curley,

202 Mass. 42, 88 NE 437. Revenues to be

need account to assignor for rebate on pur-

served under contract to conduct circons for

four days. Brindze v. Atlantic City Police-

816. Assignee of contract for sale of real

men's Beneficial Ass'n \[N. J. Eq.\] 72 A 435.

estate has full power to enforce rights

Held not assignment: There being no

theruender and may sue to recover money

evidence showing necessity of invoking

paid on contract, though purchaser and as-

equitable rule, and burden thereof being on

signed act for benefit of third party who

party seeking to invoke aid of equity. Me-

furnished the money. Osborne v. Hughes,

Gregor v. Putney \[N. H.\] 71 A 226. Connect between two creditors of one debtor

non-negottable certificate of indebtedness

whereby one creditor agrees that debt owing

issued by receiver of corporation is subas-

to third creditor may be preferred If pur-

sributed for original holder so that he has

chased by other creditor, so as to effect

right to share in distribution and can

transfer of first party's debt or of bank-

pel registration of transfer to him. Mc-

ruptcy dividends subsequently declared

Carty v. Crawford, 238 Ill. 88, 86 NE 750.

thereon. Stires v. First Nat. Bank \[Neb.\]

Transfer of secret formula acquires all

119 NWV 258. Drraft drawn by creditor upon

rights of discovery. Leslie E. Keeley Co.

his debtor in favor of third person, whether

v. Hargreaves, 236 Ill. 316, 86 NE 132.

accepted or not, where not drawn upon

Equitable assignment vests assignee with

particular fund. Croyle v. Guelch, 35 Pa.

title to proceeds of assigned obligation,

Super. Ct. 356. Mere giving of check and

since equity treats that as done which

its receipt in ordinary way, even though

should have been done. Wheleens v. Meyer

check is drawn for exact amount of

& Schmid Grocer Co. \[Mo. App.\] 120 SW7 708.

drawer's balance. Poland v. Love \[C. C. A.\]

Equitable assignee is entitled to immediate

164' 188. Mailling of check to payee does

specific performance of assignment as soon

not operate to assign funds in bank to

sent of such check, where drawer of check

assigned. Id.

withdraws all his funds before check pre-

sented. Smith v. Nelson \[S. C.\] 65 SE 261.

cannot set up an attempted revocation of

Giving of check does not assign amount

the assignment after suit has been begun

thereon. Id. After acceptance of assign-

ment by debtor, he cannot be released by

ill. App. 608.

21. Taneyhill v. Baltimore & O. R. Co.

man in accordance with assignment, hence

7 Ohio N. P. (N. S.) 487; Trexler v. Kuntz

s6 Pa. Super. Ct. 362.

s22, See post $ 5, Emsforcement of Assign-

ment and of Rights Assigned.

23. Search Note See notes in $ C. L. 334;

66 L. R. A. 760; $ L. R. A. (N. S.) 565; 7 Id.

s534; 14 Id. 1025; 2 A.

### 13 Cur. Law.

ASSIGNMENTS SS 4.

assignee who has acknowledged the prior assignment to take possession of the property.\[27\] Where notice to debtor is required, assignments take priority in the order in which notice is given.\[28\] Priority does not, however, extend to moneys not specifically covered by the assignment,\[20\] and an assignment is subject, moreover, to all equities existing at the time of the assignment \[80\] and notice thereof.\[81\] An assignment will be given a reasonable construction in determining what is included \[22\] according to the rules of construction applicable to contracts in general,\[38\]

Burney Tailoring Co. v. Cuzzort \[Ga.\] 65 SE 140. Order assigning compensation due or to become due given by contractor and action to seller. Grant v. Sicklesteel Lumber opted by owner has priority over claims Co. \[Mich.\] 15 Det. Leg. N. 1146, 119 NW of subsequent creditors. Butlrick Lumber Co. v. Collins, 202 Mass. 413, 89 NE 138. Service cannot be had on nonresident by parishment of claim assigned by him be-fore commencement of action. Nixon v. 88. Joshua Hendy Mach. Works, 51 Wash. 419, 99 P 11. Proper assignment of money in hands of agent takes precedence over subsequent attachment. Yeiser v. Broadwell \[Neb.\] 119 NWV 472. Assignment of bullding contract is good as against subsequent llen holders, such as subcontractors, mate-rialmen, and laborese subsequently serving notice of llen on owner. Spensler v. Stilles. Tull Lumber Co. \[Miss.\] 48 S 966. 27. But such subsequent assignee 1s bound to account to prior assignee of bill of lading for purchase price. Manufacturer's Commercial Co. v. Rochester R. Co., 117 NYS 989. 28. Monneys due on building contract and notice to owner. Trexler v. Kuntr, 36 Pa. 36. Claim or chose in action. Lambert v. Morgan \[Md.\] 72 A 407. Income of trust estate and notice to trustee, which notice may be by fling assigned claims in court. Id. Assignment of balance due on building contract takes precedence over llens, notice of which is subsequently served on owner as provided under $ 3074, Code 1906. Spengler v. Stilles-Tull Lumber Co. \[Miss.\] 48 S 966. 28. Manufacturer's Commercial Co. v. Rochester R. Co., 117 NYS 989. 30. McCarthy v. Crawford, 238 Ill. 38. 86. NE 750; American Bridge Co. v. City of Boston, 202 Mass. 374, 88 NE 1089; Webster v. Abbott, 117 NYS 949. Under Code $ 3044 authoring- assignment of non-negotable instruments. Quartion v. American Law which assignee might have anticipated as result of assignment of contract with rall-trable mortgage and bond, Newman v. 116 NYS 369. Mortgage and ac-conservative cannot successfully complain that companying bond, Hochberger v. Ludvigh, 116 NYS 696. Judgment on negotiable instrument. Seldem v. Villiams, 108 Va. 542, 62 SE 380. Assigned judgment may be set v. Wallrich \[Co.\] 102 P 1085. 33. The general terms of an assignment \[Or.\] 97 P 542. Assignment of contract of purchaser from broker. Kurinsky v. when the contrary manifestly appears as Lynch, 201 Mass. 28, 87 NE 70. In taking assignment of written instrument to purchase bonds, assignee is bound to inquire of subscribers whether they have any defense. Real Estate Trust Co. v. Ritter-Conley Mfg. Co. \[Pa.\] 73 A 695. Option contract for leasing certain oil lands held subject to defense of fraud and mistake, not being assignable at common law or by statute. York v. Scott, 140 Ill. App. 178. Purchaser of lump is not liable to as-signee.

Survey of lump is not liable to as-signee.

and an assignment of a money demand will not be construed as an assignment of a contract or other interest,4 nor will an assignment of a contract of sale be construed as a sale.48 The owner's acceptance of a contractor's order is an equitable assignment only of the balance due.49 An assignment is construed as a warranty that the non-negotiable contract assigned is genuine, but not necessarily that it will be fulfilled.47 However, the assignee may generally have recourse against the assignor in case of an express indorsement,48 and an indorsement "without recourse" does not necessarily preclude recourse against the assignor.49 An invalid assignment conveys no rights,49 and an assignment contrary to public policy cannot even carry a valid warranty.41 The effect of the assignment of a contract which by its express terms is nonassignable is merely to give the assignee a cause of action against the assignor.42 In the absence of an express agreement, the assignee of a personal contract is not liable on the covenants of his assignor,48 but the assignee of any other contract is ordinarily liable for those obligations identified therewith.44 The effect of an assignment of a secured claim as an assignment of the security is treated elsewhere.49

**SS 5.**_Enforcement of assignment and of rights assigned.49 See 11 C. L. 207--At common law the assignee of a chose in action, could maintain an action at law thereon only in the name of his assignor,47 and though in most of the states there are statutes either requiring the assignee to sue in his own name48 or giving him_

**34.**\_Assignee of balance due on building contract holds no relation to persons fur-assignee could not be held for balance of his/her labor and material. Spengler v. \[Mnis.\] 48 S 866. Assignee of money due or to become due on contract as in table for material furnished contract assigned. Anderson v. New York under contract. National Sureety Co. v. Maag \[Ind. App.\] 86 NE 862. Assignment of money demand is not an assignment of humber sold and giving rise to such demand. Grant v. Sicklesteel Lumber Co. \[Mich.\] 15 Det. Leg. N. 1145, 119 NY 1092. \[35. Title to ties sold does not vest in assignee of right to receive payment. Mana-ufactures' Commercial Co. v. Rochester R. \[Co.\] 117 NYS 1089. Assignment of contract to sell land is not sale of land so as to relieve vendor from payment of taxes. Western Lime & Cement Co. v. Copper River Land Co., 188 VHs. 41, 120 NW 277. \[36. Carnboy V.\] 48. Carboy V.

the right to do so " at his option," the common-law rule still prevails to such extent as it has not been so modified," and in cases not so covered by the statute the assignee must still sue in the name of his assignor " or must resort to a court of equity, as where the assignment is for only a part of a claim." In any case equity will usually protect the rights of the assignee " by entertaining a suit in his own name," or by permitting him to intervene in a suit wherein the court has control of the fund assigned," and will not drive him to his remedy at law where the remedy in equity is more convenient and adequate;" but where the contract assigned is of an inherently indivisible nature, the assignee thereof cannot enforce it even in equity " unless he is entitled to the whole of it. The right of an assignee to maintain an action in his own name is absolute where the debtor has recognized the assignment by promising to pay the assignee," and where the assignee has the legal title he need not disclose any representative capacity in which he may be acting." A pendente life assignee," or the assignees of a judgment after-

of grantee's claim against grantor for un-

by means of draft must sue in name of paid taxes under Mills Ann. Code, $ 3, re-

assignor to his own use. Croyle v. Guelich,

quiring action to be brought in name of

86 Pa. Super. Ct. 356. Assignee may sue in

real party in interest. Rambo v. Arm-

name of assignor to enforce nonassignable

strong \[Colo.\] 100 P 586.

right, since assignor is deemed in law to be

49 Rev. Laws, c. 173, $ 4, where all con-

owner. Bequa v. Marshall \[Ark.\] 114 SWV

ditions necessary to create liability have

714. Assignee with only equitable title

been performed and conveyance simply

may sue in name of assignor, but for own

worked transfer of right to receive pay-

use. Bonanan v. Thomas \[Ala.\] 49 S 808.

ment. Wood v. Farmer, 200 Mass. 209, 86

853. Trexler v. Kuntz, 36 Pa. Super. Ct.

NE 297. In suit against subscriber for sub-

352: Taneyhill v. Baltimore & O. R. Co., 7

scription to capital stock of corporation,

Ohio N. P. (N. S.) 487: Sternberg de Co. v.

under , 854, 31 Stat. 1256, so providing with

Lehigh Val. R. Co. \[IN. J. Law\] 73 A 89:

regard to all liquidated claims. Crook v.

Microtra and wards reversed generally has the right to have the action continued in the name of the assignor for his benefit," or he may have his remedy against the assignor." An action by an assignee may continue in his name even after a pendente life re-assignment by him to the original assignor." Suit cannot be maintained by an assignee on an assignment not executed until after suit is commenced." A person not a party to an assignment contract may in certain exceptional cases enforce it." In federal court, the right of action of an assignee is determined in accordance with the law of the forum," though in some cases the assignee may maintain his action in a federal court when the assignor cannot do so." An action at law cannot be maintained in a federal court upon an oral promise to pay the assignee of a written instrument where it does not appear that the promisor had knowledge of such assignment." For an assignment to have any effect as a defense by debtor in an action by the assignor, the debtor must allege that plain-tiff is not the real party in interest and has no title to claim sued on." A court of law will not even recognize a partial assignment as a defense to an action by the assignor against the debtor." No supplemental petition is necessary after the assignment of a pending cause of action." A party relying upon an assignment must allege it." Where fraud is relied on, all the elements thereof must be alleged." Under the practice in some states the validity of an assignment of an assignable instrument can be put in issue only by a verified denial." The burden is upon a party alleging an assignment to prove it when it is put in issue;" but fraud or undue influence in the procurement of the assignment is a matter of affirmative defense as to which the party attacking the assignment has the burden," and so also as to the defense of lack of capacity in the assignor." The assignor's compliance with the assigned contract must ordinarily be shown." Whether a trust relation results from an assignor."

the name of the original plaintiff, his as-signor. City of Greensboro v. Southern Paving & Const. Co. \[C. C. A.\] 168 F 890.

62. King v. Miller \[Or.\] 97 P 542. May

01. King v. Miller \[Or.\] 97 P 542. May

01. King v. Miller \[Or.\] 97 P 542. May

01. Not being authorized under Rev. Laws, 1902, $ 4, c. 173, providing that assignee of non-negotiable chose in action may maintain an action thereon in his own name. Bowen v. New York Cent. & H. R. R. Co., 202 Mass. 263, 88 NE 781.

01. As where assignee receives money or property on promise to pay or deliver same to third person. Howes v. Scott \[Pa.\] 73 A 186.

01. Joseph Dixon Cruelbe Co. v. Paul \[C. C. A.\] 167 F 784; City of Greensboro v. Southern Paving & Const. Co. \[C. C. A.\] 168 F 880.

01. Assignee of notes of city payable to bearer may sue thereon in federal court even though assignor could not have done so, regardless of whether notes were first negotiated to citizen of state other than that of maker or not, being exception to rule of indicary act (25 St. 433) declaring that assignee of chose in action cannot sue in federal court unless his assigned court would have been accepted." Whether a trust relation results from an assignor to the assignment of a legal court would have been accepted." Whether a trust relation would have been accepted.

## 13 Cur. Law. assignments for benefit of creditors $\\lx@sectionsign$ 1. 345

signment must be determined upon the merits of the particular case,\* and parol evidence is admissible in such connection.\*1 A judgment between the assignor and the debtor in an action to which the assignee is not a parity is not conclusive on the assignee.\*2

Footnote \*: Always begin with the latest article on the subject. Use the latest topical index.

The scope of this topic is noted below.\*33

## 14 15 16 17 183.

Assignments for benefit of creditors $\\lx@sectionsign$ 1. 345

signment must be determined upon the merits of the particular case,\*40 and parol evidence is admissible in such connection.\*1 A judgment between the assignor and the debtor in an action to which the assignee is not a parity is not conclusive on the assignee.\*2

Footnote \*: Always begin with the latest article on the subject. Use the latest topical index.

The scope of this topic is noted below.\*33

## 15 17 183.

Assignments for benefit of creditors $\\lx@sectionsign$ 1. 345

signment must be determined upon the merits of the particular case,\*40 and parol evidence is admissible in such connection.\*1 A judgment between the assignor and the debtor in an action to which the assignee is not a parity is not conclusive on the assignee.\*2

signment must be determined upon the merits of the particular case,\*40 and parol evidence is admissible in such connection.

### Assignments for benefit of creditors $ 2. 13 Cur. Law.

benefit of creditors in Illinois is not void because it does not comply with the "bulk sales act." \*\* In some states it is provided by statute that every assignment in contemplation of insolvency, and with the design to prefer one creditor to the exclusion of others, shall operate as an assignment of all the property of the debtor for the benefit of his creditors.\*\*

\*\*SS 2. _Statutory provisions and conflict of laws._"See 11 C. L. 801.--Though the national bankruptcy act suspends a state statute in reference to voluntary assignments for the benefit of creditors," yet, a common-law assignment for the benefit of creditors is valid in Illinois so far as the statutes of that state are concerned." It has been held in North Dakota that the Wisconsin statute, providing that, when a resident of that state has made an assignment for the benefit of creditors, the proceeding thereunder shall be under the jurisdiction of the circuit court, is a state bankruptcy or insolvency law," and that a deed of assignment executed in accordance with the provisions of such statute has no extraterritorial effect on real estate situated in the former state."

\*\*SS 3. _Right to make a general assignment and to join therein._"See 5 C. L. 284

\*\*SS 4. _Filing, recording or registering; qualification of assignee; removals and substitution._"See 11 C. L. 801.--In Nebraska a deed of assignment for the benefit of creditors is not entitled to record unless properly witnessed and acknowledged."

**SS0. Not void because no attempt was made \[F 737. The right of a debtor to make a common-law assignment exists independent 1805, p. 284, as such act is unconstitutional. Poense v. Roveg, 236 IL 157, 86 NE 207.**

**SS9. Ky. St. 1809, $ 1910 (Russell's St., a common-law assignment will be regarded $ 2104) is not applicable to a transfer of notes in Ohio to a Kentucky creditor with intend to prefer such creditor as the transaction was valid where it took place, it will be treated as valid in Kentucky. Fawawett's Assignence v. Mitchell, Finch & Co. \[Ky.\] 117 SWP 956.**

**91. _Senreh Note: See note in 2 A. S. R. 24._**

**See, also, Assignment for Benef of creditors, Cent. Dig. $ 15-83; Dec. Dig. $ 18-23; 4 Cyc. 193-195; 3 A. & Enc. L. (2ed.) 18, 48.**

**92. _National bankruptcy Act July 1, 1898, c. $41, 80 Stat. 544 (U. S. Comp. St. 1901, p. 3418). Poogue v. Rowe, 236 IL 157, 86 NE 207._**

**93. _Senreh Note: See note in 2 A. S. R. 24._**

**See, also, Assignment for Benef of creditors, Cent. Dig. $ 15-83; Dec. Dig. $ 18-23; 4 Cyc. 193-195; 3 A. & Enc. L. (2ed.) 18, 48.**

**94. _National bankruptcy Act July 1, 1898, c. $41, 80 Stat. 544 (U. S. Comp. St. 1901, p. 3418)._**

**95. _Senreh Note: See note in 2 A. S. R. 24._**

**96. _The title vests in the assignee upon creditors, Cent. Dig. $ 15-83; Dec. Dig. $ 18-23; 4 Cyc. 193-195; 3 A. & Enc. L. (2ed.) 18, 48._**

**97. _National bankruptcy Act July 1, 1898, c. $41, 80 Stat. 544 (U. S. Comp. St. 1901, p. 3418)._**

**98. _Senreh Note: See note in 2 A. S. R. 24._**

**99. _The title vests in the assignee upon the execution of the instrument. Brennan v. Wilson, 71 N. Y. 502; Weber v. Mlek, 131 IL 520, 23 NE 644._**

**90. _The title vests in the assignee upon the execution of the instrument. Brennan v. Wilson, 71 N. Y. 502; Weber v. Mlek, 131 IL 520, 23 NE 644._**

**91. _The title vests in the assignee upon the execution of the instrument. Brennan v. Wilson, 71 N. Y. 502; Weber v. Mlek, 131 IL 520, 23 NE 644._**

**92. _National bankruptcy Act July 1, 1898, c. $41, 80 Stat. 544 (U. S. Comp. St. 1901, p. 3418)._**

\*\*93. \_Senreh Note: See note in 2 A. S. R.

- 13Cur. Law. assignments for benefit of creditors $ 7. 347

$ 5. _Meaning and effect in general. 99-Sos 11 C. L. 302--An assignment works a change of ownership, not only in the legal title, but in the interests represented by it,1 and passes the equitable ownership of all the assigned property to the creditors.2 The rights of each are fixed as of the date of the assignment,3 and each owns such a proportionale part as the debt due him bears to the aggregate of the indebtedness.4_

$ 6. _Legality and equitableness. 5--See 9 C. L. 270--An intent to defraud creditors, especially such creditors as have not assented to the provisions of a common-law assignment for their benefit, is not to be inferred from successful efforts to compromise the claim of the creditors after such assignment is made.5 Where all of the assignor's property not exempt from attachment and execution is conveyed to be divided pro rata among all creditors who should assent thereto and reasonable time for such assent is given, it is, if bona fide, a valid assignment of the property described as conveyed therein._

_Reservation of property. See 11 C. L. 302--In some states the debtor is entitled to reserve a certain amount of property for himself._

_Preferences. See 11 C. L. 302--In the absence of legislation preferring depositors over other general creditors in the distribution of the funds in the hands of the assignor of an insolvent, no such preference exists.9 Under the South Dakota state there cannot be any preferences as to the creditors to be paid.10_

$ 7. _Property passing to and rights of assignee therein. 11--See 11 C. L. 303--An_

edgedged, It was void. Talmage v. Minton-

7. Held that there was nothing in assign-

Woodward Co. \[Neb.\] 118 NWV 1099.

9.0 Search Note: See notes in 26 L. R. A.

parties to justify claim that assignment

992: 16 L. R. A. (N. S.) 827.

See, also. Assignments for Benefit of

Creditors. Thompson v. Shaw \[Mc.\] 71 A Predictors, Cent. Dis. $ 484-657, 1084-1105, 370.

Dec. Dis. $ 117-119, 357-383; 4 Cyc. 208-

$ 8. Where assignor was induced to, and

225, 282-285; 3 A. & E. Eno. L. (2ed.) 55.

1. Hence gas company could not refuse

personal property under his claim for ex-

to furnish gas to assignee because bills

emption in lieu of homestead, as provided

for gas incurred by assigned remained un-

paid, under Rev. Laws, c. 58, 16, 17.

tions made to him by assignee that be

Cox v. Madden & Melrose Gaslight Co., 199

would have to wait until property was sold

Mass. 324, 85 NE 180.

2. Peckham's Assigned Estate, 35 Pa.

35 Pa.
assignments for benefit of creditors SS 8. 13 Cur. Law.

assignee for the benefit of creditors is a trustee,\[12\] and represents the trust property.\[13\] He acquires no better title to the property than the assignor himself had,\[14\] and he cannot bind the assigned estate by an executory contract having no relation to the obligations of the assignor,\[15\] and a power of attorney given to him gives him no authority to execute a deed to real estate not conveyed by the deed of assignment.\[16\] Under the Missouri statute an assignee may call into question the validity of a prior transfer by his assignor as collateral security.\[17\]

SS 8. _Liability of assignee; bond.\[18\] See 11 C. L. 804_--When a common-law assignment has been lawfully made and a nonassenting creditor by trustee process attaches the property in the assignee's hands, such assignee will not be held chargeable for sums paid by him, prior to the service of the writ, to the bona fide creditors of the assignor in settlement of their just demands.\[19\] Nor will he be held chargeable for property returned by him to the assignor prior to the writ, unless he returned it for the purpose of defrauding the nonassenting creditors.\[20\] The fact that an assignee cannot bind the assigned estate, by an executory contract having no relation to the obligations of the assignor, does not prevent him incurring a personal liability where another has acted upon the faith of his promise.\[21\] Though an assignee makes an accounting in a federal court in a bankruptcy proceeding against the assignor, the surety on assignee's bond is not bound by the federal court's decision unless it has acquired jurisdiction over such surety.\[22\]

SS 9. _Collection of assets and reduction to money.\[23\] See 11 C. L. 804_--An assignee of a bank for the benefit of creditors may apply a bank deposit to the payment of a debt due the bank by the depositor.\[24\] The West Virginia statute pertaining to sales of property under deeds of trust to secure creditors does not apply to a deed of assignment for payment of debts.\[25\]

725-746; Dec. Dig. **SS 173-194**, 215-222, 265, 266; **15**, \*\*Senrich Note: See Assignments for Benefit of creditors, Cont. Dig. **SS 1733**, 799-803, 1185-1185; Dec. Dig. **SS 2558-262**, 407-415; **45**, 240, 241, 285-288; **3**, \*\*& E. Enc. L. (26.) **121**, **13**, But counsel for assignee cannot, when claims of creditors have no priority, give preference to one creditor without consent of other creditors. B. F. Roden Grocery \*\*\[Mex.\] 71 A 870. Co. v. MacAfee \[Ala.\] 49 S 402. **14**. Where goods were obtained by the assignor, title remaining in the vendor or where goods were obtained on the credit of another, the assignee had no title to the goods. Void Carriage Co. v. Paralle \[MLich.\] 16 Dot. Leg. N. 424, 122 NPV 98. **15**. Assignee derives all his power from the assignment which is both the guide and measure of his duty. Standard Audit Co. v. Robotham, **SS 23**. 466, 115 NYS 152. **16**. Held that deed of assignment made in Visconsin with power of attorney which did not convey certain real estate in North Dakota did not give assignee authority to convey such land. Adams v. Hartzell \[N. D.\] 118 NPV 635. **17**. Under Rev. St. 1899, **SS 365** (Ann. St. 1806, p. 472), every general assignee is given power to prosecute such actions for property and make such defense as a trustee in a deed of trust or an attachment or executing creditor could prosecute or make. Held that assignee had right to bring action to determine validity of transfer of planos to bank. Grand Ave. Bank v. St. Louis Union Trust Co., 135 Mo. App. **366**, 115 SV 1071. **18**. Assignee works for benefit of creditors and related work.\[25\]

725-746; Dec. Dig. **SS 173-194**, 215-222, 265, 266; **15**, **Senrich Note: See Assignments for Benefit of Creditors, Cont. Dig. **SS 1733**, 799-803, 1185-1185; Dec. Dig. **SS 2558-262**, 407-415; **41**; 45**, 240, 241, 285-288; **3**, \*\*& E. Enc. L. (26.) **121**, **19**. Assignee owes no contractual duty to such creditors of the assignor as did not present to the assignment. Thompson v. Shaw \[Me.\] 71 A 870. **20**. Thompson v. Shaw \[Me.\] 71 A 870. **21**. Where assignee was used for services in rendering statement of the account of his assignor and claimed that the judgment settling his account discharged him from liability, it was held that the answer was demmutable as it was not shown that he did not incur debt as individual or that contract was one which bond assigned es- A claim acquired against the assignor after the assignment cannot be set-off against the assignee.26

SS 10. \_Administration of trust in general.27--See 11 C. L. 805--The assignee has a right to employ others to assist him in the execution of the trust,28 for whose acts, however, he becomes in law fully responsible.29 He cannot, while the trust fund is administered by the court, bind the court and the beneficiaries as to the disposition of it.29 If, when he is without funds, necessity arises for expenditures to protect the estate from spoliation, he may either make them himself, trusting to being allowed for them in the passing of his accounts,81 or he may resort to the court for authority to engage others to do it upon the credit of the fund.32 When a common-law assignment has been lawfully made, and creditors have been seasonally notified of the assignment, and have had an opportunity to assent thereto, then no special duty rests on either the assignor or assignee to secure such assent.33

SS 11. \_Debts and liabilities of the estate.24--See 11 C. L. 806--Where a common-law assignment for the benefit of creditors created a trust for the benefit of a tax collector for unpaid taxes of the assignor, a demand made by the tax collector upon the assignor and the bringing of a suit to enforce the trust is sufficient assent to the trust to enable the enforcement of the claim.35

SS 12. \_Presentment and allowance of claims.36--See 11 C. L. 806--Only creditors who were such at the time of the assignment are entitled to participate in the proceeds of the estate.37 Presentment of a claim to the assignee within six months of the time when such claim acrued does not operate to extend the time provided by statute within which an action for such claim must be brought.38

SS 13. \_Classes and priorities of debts.38--See 11 C. L. 307--Where a common-law assignment for the benefit of creditors conveyed the property to the assignee in trust to pay claims entitled to priority under the national bankruptcy law, a claim of a tax collector for unpaid taxes on the property assigned is within the trust.48

valid. Conaway v. Third Nat. Bank \[C. C. A.\] 167 F 26.

28. Richardson v. Anderson, 109 Md. 641,

72 A 485. A debtor of an assignor liable

262, 263, 274-276; 3 A. & E. Enc. L (2ed.)

when the assignment was executed as an accommodation indorser of a promissory

35. Held that estate was liable for such nete of the assignor, not yet due being required to pay it after the assignment, trust. City of Boston v. Turner, 201 Mass. cannot set off the amount paid against the trust estate. Id.

01. \_Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $4 Id. $43.

01. _Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $4 Id. $43._

01. _Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $4 Id. $43._

01. _Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $4 Id. $43._

01. _Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $4 Id. $43._

01. \_Search Note: See Assignments for Benefit of Creditors, Cent. Dig. $$ 868-959; $78; $78; $78; $78; $82; $83; $84; $85; $86; $87; $88; $89; $89; $89; $89; $90; SS 14. \_Satisfaction and discharge of debts and claims.\_41._See_ T C. L. 292 SS 15. \_Accounting, settlement and discharge, or failure of trust.\_42._See_ 11 C. L 207--Where an assignee purchases claims against the assignor at a discount, he should only be allowed the amount actually paid for the claims,43 and, if he has purchased the assignor's equity in the estate, he should not be allowed compensation for administering the estate.44 On the hearing of exceptions to the final report of an assignee, only such matters as pertain to his administration of the estate in his hands can be investigated.44

SS 16. \_Rights of creditors under a void assignment, or after assignee's discharge.\_46._See_ T C. L. 292.\_In proceedings in the county court under the statute of Nebraska, relating to assignments for the benefit of creditors, the deed of assignment being void, the order of the county court allowing claims of creditors does not amount to a judgment,47 and the distribution of the assigned estate and the discharge of the assignee under the orders of the county court in such proceedings do not amount to a judicial exhaustion of the property of the assignor.48

Footnote 47: _Always begin with the latest article on the subject. Use the latest topical Index._

## 13 Cur. Law. Associations and Societies & 2.

### Associations and Societies.

#### The scope of this topic is noted below.

\[58\]

#### 1. Definition, Nature and Organization.

#### 1.1 The Association and Persons not Memes 351.

#### 1.2 Internal Relations, Rights and Dutles, 84 Actions and Litigation, 353.

#### 1.3.1 Dissolution and Termination, 354.

#### 1.4.1 Definition, nature and organization.

\[56\] See 11 C. L. 809.-While an unincorporated association cannot as such take title to land, title may be taken in trustees for its benefit.

\[57\]

Laws prohibiting the wearing of emblems or insignia of a certain class of associations \[56\] do not necessarily violate constitutional provisions relative to local laws granting special privileges or immunities.

\[58\]

#### 1.4.2 Internal relations, rights and duties.

\[59\] See 11 C. L. 809.-Purchase of a ticket conferring membership privileges is not conclusive of intent to become member.

\[51\] The rights of members between themselves and the association, and among themselves, are governed by the constitution and by-laws.

\[52\] Associations may adopt reasonable rules for the government of their members and enforce compliance therewith;

\[53\] but members cannot be punished for violation of invalid regulations,

\[54\] nor can an expulsion be sustained where it is neither disciplinary nor in accordance with any regulation.

\[55\] A member can be expelled only in the manner prescribed by the association's constitution,

\[56\] and an attempted expulsion in any other manner is

\[57\]

4.3 556. This article treats of only voluntary & 61. Where purchaser supposed it merely unincorporated associations and member- & admitted him to society's fair. Tarbell v. ship corporations organized for purposes & 62. Ranken v. Probey, 131 App. Div. 328, to such topics as Building and Loan Asso- & 115 NYS 832. By-laws are regarded as conditions;

\[58\] Combinations and Monopolies;

\[59\]

Crorporations;

\[57\] and Joint Stock Companales.

\[58\]

their rights as members are determinable & (see & 11), religious societies (see & 12), and an attempted expulsion in any other manner is

\[59\]

#### 1.4.4 557.

\[59\]

The scope of this topic is noted below.

\[59\]

#### 1.5.1 Definition, Nature and Organization.

\[59\]

#### 1.5.2 591.

\[59\]

The Association and Persons not Memes 351.

\[59\]

#### 1.5.3 592.

\[59\]

The Internal Relations, Rights and Dutles, 84 Actions and Litigation, 353.

\[59\]

#### 1.5.4 557.

\[59\]

#### 1.5.5 593.

\[59\]

#### 1.5.6 594.

\[59\]

#### 1.5.7 595.

\[59\]

#### 1.5.8 595.

\[59\]

#### 1.5.9 596.

\[59\]

#### 1.5.1 597.

\[59\]

#### 1.5.1 598.

\[59\]

#### 1.5.2 599.

\[59\]

#### 1.5.3 599.

\[59\]

#### 1.5.4 599.

\[59\]

#### 1.5.5 599.

\[59\]

#### 1.5.6 599.

\[59\]

#### 1.5.7 599.

\[59\]

#### 1.5.8 599.

\[59\]

#### 1.5.9 599.

\[59\]

#### 1.5.1 599.

\[59\]

#### 1.5.1 599.

\[59\]

#### 1.5.2 599.

\[59\]

#### 1.5.3 599.

\[59\]

#### 1.5.4 599.

\[59\]

#### 1.5.5 599.

\[59\]

#### 1.5.6 599.

\[59\]

#### 1.5.7 599.

\[59\]

#### 1.5.8 599.

\[59\]

#### 1.5.9 599.

\[59\]

#### 1.5.9 599.

\[59\]

#### 1.5.1 599.

\[59\]

#### 1.5.1 599.

\[59\]

#### 1.5.2 599.

\[59\]

#### 1.5.3 599.

\[59\]

#### 1.5.4 599.

\[59\]

#### 1.5.5 599.

\[59\]

#### 1.5.6 599.

\[59\]
absolutely void."17 The right to vote is usually confined to regular members "" in good standing." Association property is owned and controlled by the members collectively as an association, and not by individual members or officers; " but the entire membership and property of a society cannot be transferred to another organization by mere majority vote in the absence of authority in the constitution or by-laws."

For grievances a member must usually resort to the remedies afforded by the association before resorting to the courts," but a member need not resort to the appeal provided for by constitutional regulations regarding expulsion, where he has been expelled in a manner not authorized by the constitution." A member cannot recover damages for expulsion where he could have recovered them in a former action for reinstatement and costs." Where the expulsion of a member is void, he need not, after one refusal, tender his dues when it is manifest that they will not be accepted."

\*\*SS 3. _The association and persons not members?_--See 11 C. L. 800--Liability can be fastened on members of voluntary associations only by reason of their acts of the acts of their agents " duly authorized in the premises," and within the powers of the association." Agency to act for the association must be proved and cannot be implied from the fact of association;" but unauthorized agreements may be ratified by the society." Members who sign a note for an obligation of the association

67. Member may disregard it entirely and really held insufficient. Hill v. Rauhan need not appeal to supreme connell as provided in case of expulsions in manner prescribed by constitution. Gill v. Ladies' turt association. Rabb v. Trevelyan, 122 Catholio Benevolent Ass", 36 Pa. Super. Cat. 458.

\*\*73. Gill v. Ladies' Catholic Benevolent Ass", 36 Pa. Super. Cat. 458.

tion of directors of society for prevention of cruelty to animals, under provisions of .Laws 1908, p. 1210, c. 77, determined. Pope v. Whirridge \[Md. App.\] 17 A 281. Persons who had given donations but not for purpose of becoming members, and who were not carried on society books as members, held not entitled to vote. Id. Notations on society books held presumably to have terminated membership of certain persons. Id. Statette held not require payment of $1 annually as condition to becoming active member. Id. Though ordinarily honocary members have no share in active management, one who had been member for over 20 years, but had become honorary member, and had made large donations and voted before without objection, held entitled to vote. Id.

69. Certain transactions held not sufficient payment or tender of dues so as to entitle members to vote. Pope v. Whirridge \[Md. App.\] 73 A 281. Tender at customary place where books were kept, etc., held sufficient though pre'dent had ordered payment else-, where shortly before. Id.

01. President holding - title as trustee could not prevent conveyance to a church desired by both equitable owner and society as a whole. Richardson v. Harsha \[Okl.\] 98 P 837. Member of club or society has only a joint right to use and enjoy club property during membership and no less than whole membership can dispose of such property. Manning v. Canon City \[Colo.\] 101 P 978.

01. In absence of evidence of purpose of society, by-law giving majority power as to all questions except purchase or sale of 13 Cur. Law. ASSOCIATIONS AND SOCIETIES SS 4.353

become individually liable thereon.\[82\] When an association is organized for pecuniary profit,\[83\] the members become partners\[84\] and their individual liability is determined by the rules governing the liability of partners,\[85\] and the liability of principals for the acts of their agents.\[80\] Charitable associations are often held exempt from liability for negligence of servants.\[87\] Members of an unincorporated society may sue for libel as individuals having a common interest in the business injuriously affected.\[88\]

SS 4. _Actions and litigation.\[89\]-See 11 C. L. 310_--Assumpsit will not lie against an unincorporated beneficial association in its collective name for an obligation of the organization.\[80\] In the absence of statute or by-law,\[91\] according to strict practice and principle suit must be by or against all the members,\[92\] and the association cannot be sued in the name of its officers;\[88\] but under a more liberal practice, suit may be brought in the name of individual members as representatives of the whole membership,\[94\] and the proper method of bringing an unincorporated association before the court is to join, as parties defendant, persons who are alleged to be and are proper representatives of the class, describing the class to which the members belong.\[85\] A resolution requiring the members bringing the suit to give security is

executive committee held ratification. Stiff Cent. Dig. SS 5; Dec. Dig. SS 12; 7 Cyc. 260; v. Forbes, SS 313. 117 NYS 143. That defendant was present at subsequent meeting when minutes were approved held no a 528.

artificial. Meriwether v. Atkin \[Mo. App.\] 119 SW 36.

S2. Held individually liable regardless of their intentions as to liability or belief as to law. Evans v. Lilly & Co. (Miss.) 48 S 61B. Immaterial that names were followed by abbreviations indicating offices signers held in association. Id.

S3. Is so organized when purpose is to carry on some business in which profits are expected. Ranken v. Probey, 131 App. Div. 338, 115 NYS 832.

S4. Ranken v. Probey, 131 App. Div. 328, 115 NYS 832. See Partnership, SS 4.

S5. Ranken v. Probey, 131 App. Div. 328, 115 NYS 832. See Agency, SS 2.

S7. New Orleans fire insurance patrol held not a charitable institution so as to be immune from liability for negligence of servants. Coleman v. Fire Ins. Patrol, 122 Le.

626, 48 S 130. New York Zoological Society created under Laws 1985, p. 778, c. 435, and Laws 1902, p. 418, c. 146, and controlling, for scientific and educational purposes, premises owned by city with power to appoint, control and remove employees, held not exempted from liability for injury to employee due to negligence of another employee in permitting escape of steam from boiler, on theory it was a charitable institution for public benefit. Garland v. New York Zoological Soc., 61 Misc. 643, 113 NYS 1087.

AsyInns and hospitals: As to the liability of asyInns and hospitals, see AsyInns and Hospitals, see AsyInns and Hospitals, SS 3.

SS. National Shutter Bar Co. v. Zimmerman & Co. \[Md. App.\] 73 A 19.

S9. Search Note: See notes in 2 L. R. A. (N. S.) 789; 3 Ann. Cas. 28, 699; 6 Id. 833; 7 Id. 645.

See, also, Associations, Cent. Dig. SS 86-43; Dec. Dig. SS 20; 4 Cyc. 512-814; Clubs, 18 Curr. L --33

S5. Le. L --33

S6. Le. L --33

S7. Le. L --33
unavailable to the defendant,\* and in the absence of objection by members the court will assume that such security has been given.97 An averment that an association was organized for pecuniary profit, if unchallenged, is sufficient to admit proof of such purpose in its formation as would authorize contracts imposing liability on members beyond fees and dues.99 The constitution and records of the association are admissible in evidence in proper cases.98 A judgment against a society is conclusive of the liability of those who were members when the liability was created.1

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

SS 5. \_Dissolution and termination.\_2 See 11 C. L. 810. Where a subordinate division of an association severs its connection with the main body,\* property rights usually depend upon the constitution and regulations of the association.4

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

## 11 Asuncre, Form and Propriety of Action

SS 1. _Nature, form and propriety of action._\* See 11 C. L. 810. The breach of all parol or simple contracts is remediable by action of assumpsit.7 Except in the case of money had and received,\* assumpsit will not lie in the absence of an express or implied promise,\* or in any case in which any other matter other than such a contract must be litigated,10 nor will it lie to recover anything except money.11

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

not properly joined as parties defendant by mere allegation that John Doe and Richard Roe and others whose names and residences from all others for certain period within relations and participated in acts complained of. Reynolds v. Davis, 198 Mass. 294, 84 NE 45. 96, 97. Klein v. Rand, 35 Pa. Super Ct. 263. 98. Ranken v. Probey, 131 App. Div. 828, 115 NYS 832. 99. That paper offered was found and kept in association\* archives and acted under as its constitution held sufficient to admit it in suit to enforce liability of members after judgment against society. Tar-bell v. Gifford \[Vt\] 72 A 921. Immaterial constitution was not recorded in society\* books. Id. Proof that a book offered in evidence was the one in which record of all meetings of society were kept held submitted to make it admissible to show society's organization and dongs. Id. 1. Tarbell v. Gifford \[Vt.\] 72 A 921. 2. Senech Note: See note in 14 L. R. A. (N. S.) 883. 1. 88. See, also, Associations, Cent. Dig. \*\* 44-\*\* 47; Dec. Dig. \*\* 21-\*\* 25; 4 Cyc. 345. 351-\*\* 360; Clubs, Cent. Dig. \*\* 5 9; Dec. Dig. \*\* 13\*\*, 14; 7 Cyc. 264; 25 A. & E. Enc. L. (2ed.) 114. 8, Resolution of majority of lodge "Ve sever our connection with the order, etc.," together with organization of new ledge, and later organization and incorporation of same held evidence of intention to with-draw from lodge, and that by such action they ceased to be members of lodge. Al-chenburger v. Fruendschaft Lodge No. 72, D. O. H., 138 III. App. 204. 4. Where constitution of lodge provided that when charter of subordinate lodge * 10 Cur. Law. ASSUMSIT SS 2. 855

**SS 2.**_The common counts._\[12\] See 11 C. L. 111.--While the remedy under the common counts is a broad and liberal one, yet there must always be something to connect the party sought to be charged with the transaction upon which the suit is based.\[13\] The scope of the common counts has been enlarged rather than restricted in modern times,\[14\] but even under such enlarged scope they can be used only when they will appraise the defendant of the nature of the plaintiff's claim,\[15\] and when they will not do this they must be accompanied by a special count.\[16\] Where, however, nothing remains to be done but the payment of money, the common counts may be used alone,\[17\] without a special count.\[18\]

\_Use and occupation of land.\_See 9 C. L. 278

\_Goods sold and delivered.\_See 10 C. L. 278

\_Money had and received.\_See 9 C. L. 278.--The count for money had and received is sometimes declared to be an exception to the rule that assumpsit lies only upon a contract, express or implied.\[19\] It lies to recover money \[20\] received by the defendant which in equity and good conscience he should pay to the plaintiff.\[21\] Money paid under an illegal as distinguished from a merely invalid contract cannot be recovered as money had and received.\[22\]

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ASSUMPSIT SS 3.

13 Cur. Law.

\_Money paid.\_See * C. L. #12.--Assumpsit lies where one at another's request,\[28\] or under an implied request,\[24\] or as another's surety,\[25\] pays or lays out money for the benefit of such other.\[28\]

\_Work, labor and materials.\_See 11 C. L. #12.--Assumpsit for work and labor lies where the plaintiff performs such services for the defendant at the latter's request\[27\] and accepted by him.\[28\]

SS 3. \_Declarations, pleas and defenses.\_See 11 C. L. #12.--It is sometimes required by statute that the declaration in assumpsit shall be a concise statement of plaintiff's claim and must fully set forth the ground on which he seeks to recover.\[30\] It is held that the common-law form is sufficient, notwithstanding such statutory requirement,\[31\] but the contrary is also held.\[32\] Under the Missouri code it is sufficient to state facts from which a promise to pay will be implied.\[33\] An averment of a promise to pay as soon as possible is not too indefinite,\[34\] and that money earned by the plaintiff was collected and appropriated by defendant is sufficient to sustain the action,\[35\] and so, also, where all that remains is to pay the amount due, declaration need not aver that architect's right to inspect work had been waived.\[28\] In assumpsit for the value of goods stored in a warehouse, it is essential to aver that storage charges were tendered defendant.\[37\] Where an unnecessary contract, is set out is becomes a material part of the declaration and cannot be rejected as surplus.\[38\] Where the averments afford sufficient basis for suit, the declaration may be amplified by amendment.\[39\]

\_Pleas.\_See 11 C. L. #12.--In Florida the plea of nonassumpsit is inadmissible to the common counts.\[40\] Pleas of set-off and counterclaim are treated elsewhere.\[41\]

\_Variance.\_See 11 C. L. #13.--A note is not admissible in evidence under

23. Assumpsit lies for money paid, laid --tain action for fraud. Truro v. Passmore out, and expended at defendants request. \[Mont.\] 100 P 966.

Teter V. Teter \[V. Va.\] 65 SIE 967; Clark v. 33. Blek v. Clark, 134 Mo. App. 544, 114 Van Cleef \[N. J. Eq.\] 71 A 260.

24. Yolker v. Fisk \[N. J. Eq.\] 72 A 1011.

01. Teter v. Teter \[V. Va.\] 83 SE 967.

01. Money lent. Clark v. Van Cleef \[N. J. Eq.\] 71 A 260.

01. Allergation that money was earned by grant. Expess contract for labor done and performed for defendant at its special instance. John King Co. v. Louisville & N. was collected by defendants and appropri-R. Co. \[Ky.\] 114 SW 308. Where action was action for money had and received, but is contract, the fact that pleadings were changed so as to place plaintiff's reliance upon the abrogation of the written con-Boyce v. Expanded Metal Fire Proofing Co., for the action so as to require its trans-Boyce v. Symbol that it is not possible to state the action. \[Ky.\] 186 III. App. 352.

01. Work was not finished in time specified by contract but defendant accepted benefits thereof. Kendrick v. Warren Bros. Co. \[Id.\] 72 A 481.

01. Search Notet See Assumpsit, Action of, Cent. Diff. $59-62, 79-152; Dec. Dig. $10. 17-24; 4 Cyc. 339-357; 2 A. & E. Enc. P. & P. #92.

01. Procedure act of 1887. Plunket v. Hammett, $6 Pa. Super. Ct. 590.

01. Count for money had and received held sufficient. Miller v. Abrahamson \[Cal. App.\] 39 P 634.

01. Declaration for money had and received held not sufficient under Rev. Code, $652, requiring facts to be stated, to sus- a common count without proof of the signature of the maker,43 and likewise is not admissible under a special count declaring thereon without proof of the averments of such special count.44 In assumpsit for work not finished within the time required by the contract, the plaintiff may show its acceptance by the defendant45 and the value thereof.44

Footnote 43: https://www.math.wisc.edu/~david/

**Assumption of Obligatitons; Assumption of Risk, see latest topical index.**

**ASYLUMS AND HOSPITALS.**

_The scope of this topic is noted below.47_

**8 1.**: **Corporations or Societies and Their**

**8 3.**: **Libbility of Institutions or Offecrs for Offecrs, 357.**

**8 2.**: **Establishment and Maintenance of Instructions and Support of Inmates, 358.**

**357.**

**SS 1.**: _Corporations or societies and their officers.48_ **See 11 C. L. 418.**--Where a legislative act makes an appropriation to a private institution and at the same time provides for a managing board, such institution becomes a public one.49

**SS 2.**: _Establishment and maintenance of institutions and support of inmates.50_

**See 11 C. L. 41.**--The establishment of asylums for citizens who, by reason of age, in-firmity or other cause, are unable to take care of themselves, is, by the common consent of civilized countries, a public purpose and within the general legislative power.61 Whether, therefore, a particular statute establishing an asylum is valid or not depends upon whether or not such asylum is a public one62 and whether the act creating it conforms to constitutional limitations,63 which latter question is usually determinable under the general rules relative to the validity and interpretation of statutes in general.64

Footnote 43: https://www.math.wisc.edu/~david/

While hospitals may be so conducted in certain localities as to become a nuisance, they are not necessarily nuisances per se;85 but a maternity hospital for the purpose of producing abortions is a nuisance per se, and the location is not material.50

Footnote 44: https://www.math.wisc.edu/~david/

**45, 46.**: **Kendrick v. Warren Bros. Co. \[Md.\]**

**72 A.**: 461.\*\*

**47.**: **Includes all matters relating to the organization, maintenance, and regulation of such institutions. The commitment of persons thereto (see Infants,* ## 2, 8; In-sane Perons,* # 4), gifts to such institutions (see Charitable Gifts *), the liability of physicians and surgeons for malpractice, the negligent homolide by in the practice of medicine or surgery, and the regulation of such practice (see Medicine and Surgery,* ## 1, 2, 8), and the liability of railroad companies and other employers for negligent treatment of injured employees (see Master and Servant,\* # 3A), are fully treated in separate articles. For the rights, duties and liabilities of officers of public asylums and hospitals, reference should also be had to the topic Officera and Public Employees,\* # 1-8.\*\*

**48.**: **Search Note: See notes in 38 L. R. A. \[J.\]**

**211.**: **See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**Dig. # 1, 2; Hospitals, Cent. Dig. # 1, 2, 6;**

**212.**: **See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**Dig. # 1, 2; Hospitals, Cent. Dig. # 1, 2, 6;**

**213.**: **See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**214.**: **See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**215.**: **See, also, asylums, Cent. Dig. # 1; Dec. \[J.\]**

**Dig. # 1, 2; Hospitals, Cent. Dig. # 1, 2, 6;**

\*\*22 A law making the estates of insane persons, committed to a state hospital, Iiable for their maintenance, \[87\] or that a county must pay a certain sum each _for maintaining insane persons_ \_therefrom is constitutional, \[88\] and is in pari materia with an act appropriating a sum for the maintenance of such institution, \[89\] and the fact that such institution has sufficient money for its maintenance does not excuse the payment required by counties. \[90\] In the absence of a statutory liability, however, a poor district cannot be held liable beyond its contract for the expenses of a paulper committed by it to an insane asylum, merely because it has been reimbursed from such pauper's estate for amounts paid by it to the asylum. \[61\] In determining whether an appropriation is for a particular institution, the circumstances must be considered. \[82\]

S 3. _Liability of institutions or officers for injuries to innates and others. \[88\]_ See 11 C. L. \[81\].\_Charitable institutions are generally held exempt from liability for negligence resulting in injuries to patients \[84\] or employees. \[85\] It is held, however, that the sole basis of the exemption of such institutions from liability for the acts of their employes is the nature of the employment in which such employes are engaged, they generally being independent contractors, \[86\] and hence where the relation of master and servant really exists the institution will be liable. \[87\] Liability for failure to perform acts required by law cannot, however, be predicated upon the relation of master and servant, being of itself an independent liability. \[6\]

## Attachment

The scope of this topic is noted below. \[89\]

S 1. Definition, Nature and Distinction, 850. \[8\]

S 2. In What Actions it Will Issue, 359. \[8\]

S 3. Product in General, 361. \[8\]

S 3. Right to and Grounds for the Wcrit, 359. \[8\]

S 4. Afflawit and Its Sufficiency, 362. \[9\]

S 50. Sum appropriately should be supplemented to extent of payments required of persons responsible for support, or, on their not being able, by counties. State v. Lewis \[M. App. 117\]

S 51. Definition, Nature and Distinction, 850. \[8\]

S 4. Attachable Property, 360. \[8\]

S 2. In What Actions it Will Issue, 359. \[8\]

S 5. Procedure in General, 361. \[8\]

S 3. Flight to and Grounds for the Wcrit, 359. \[9\]

S 6. Afflawit and Its Sufficiency, 362. \[9\]

S 6. Afflawit and Its Sufficiency, 362.

- 87. Attachment Bond or Undertaking, 363.

- 88. The Writ of Warrant, 364.

- 89. The Levy or Selzure, 364. Indemifying Bonds, 365.

- 810. Return to the Writ, 365.

- 811. Custody, Sale, Reddelivery, or Release of Attached Property, 365.

- 812. Forthcoming Bonds and Receipts, 366.

- 813. Lien or other Consequences of Levy, 367.

- 814. Conflicting Levies and Liens, and Hos-tile Claims, 367.

- 81. Definition, natures and distinction.70 See 11 C. L. 815.- Attachment is a purely statutory remedy,71 and while attachment statutes are to be liberally construed in order to render the remedy effective,72 where a failure to observe a statutory requirement constitutes a jurisdictional defect the courts cannot disregard it.73

- 8. In what actions it will issue.74 See 11 C. L. 814.-Under statutes confining the remedy to causes of action arising ex contractual relations must exist in order to authorize issuance of the writ, but the character of a claim arising out of contract is not affected by the fact that tortious elements are involved.75 A statute providing for attachments in favor of a particular class of creditors is dass legislation.76

- 83. Right to and grounds for the writ.77 See 11 C. L. 816.-The right to an attachment usually depends upon an accrued cause of action,78 and is sometimes made to depend upon the sufficiency of other security.79 In most states the right depends upon the existence of certain specified facts or circumstances.60 Insolvency. See

- C. L. 823

- _Absconding of debtor._ See

- C. L. 823

- _Removal of property from the state_ See 11 C. L. 823

- ", except in so far as the latter proceeding is merely a method of making the levy in the former. The general principles of process and the service thereof (see

- C. L. 823,

- 360 **ATTachment SS 4.** 18\*\* Cur. Law

based upon this ground, other grounds are immaterial, \[81\] but intent to defraud is usually an element of such ground itself, \[82\]

_Nonresidence._ See 11 C. L. 316--One of the most common grounds for attachment is that the debtor is a nonresident of the state in which action is commenced. \[83\]

_Attachment against corporations._ See 11 C. L. 317

_Fraud._ See 11 C. L. 317--Under the statutes making fraudulent conveyances ground

for attachment, the fraud may be inferred from the act of transfer. \[84\]

_Liability criminally incurred._ See 11 C. L. 317

_Liability for necessaries._ See 11 C. L. 817--Money had and received or money loaned

does not fall within the class of "necessaries" as a legal basis for attachment. \[85\]

SS 4. _Attachable property._ See 11 C. L. 217--Under the various statutes all personal properties \[87\] of the debtor, \[88\] and interests therein \[89\] are attachable, including evidences of debt \[90\] and monetary claims. \[91\]

- 81. Where attachment is based on Ann. \[8\]

an interference with the domestic affairs St. 1906, p. 474, authorizing it when one is about to remove his property with intent to defraud creditors, the debtor's insolveny is immaterial. Simmons Hardware Co. v. conveyed or assigned his property with intent to hinder and defraud creditors, proof of fraud is essential but fraud in lawris-

J 82. Where insolvent corporation was or-

fained to exhibit through several states, proof that It was about to remove its property from the state does not show intent

Flames Co., 135 Mo. App. 266, 115 SWV 467.

to defraud creditors within Ann. St. 1906, p. 474. Simmons Hardware Co. v. Fighting

the Flames Co., 135 Mo. App. 266, 115 SWV 467. Ann. St. 1906, p. 474, authorizing at-

tachment only when one is about to remove

his property out of state, with intent to

hinder, delay or defraud creditors. Helid

"Intent" means "purpose," but proof of intent independent of removal is necessary.

Id.

SS. Under Sayles' Ann. Civ. St. 1897, art.

186, authorizing attachment when plaintiff

makes afflawt that defendant "Is not a

resident of this state," an attachment will

not be quashed on the ground that the complac plant shows that defendant is temporarily

in the state. Hull v. Parry \[Tex. Civ. App.\]

118 SWV 561. Attachment against husband

to ecompel support of wife held proper where husband

husband had an interest in land and left

the state and remained away for a year

leaving his wife destitute. Pendelton v. Pendelton \[Ky.\]

Pendelton \[Ky.\]

112 SWV 67. Code 1906,

$ 131, authorizing attachment against partnerships by partnership creditors

contemplates that where some of the partners reside out of the state attachment cannot be

sustained on the ground of nonresidence.

Barney v. Moore-Haggerty Lumber Co.

\[Mis.\]
48 S 232. "Rules and regulations" in

in Civ. Code 1895, p 4527, providing for is-

sausance of attachments against foreign corpora under the same rules and regulations as in other cases, means the manners

In which attachments may issue and not the

grounds. Panamore v. Alexander (Ga.) 64

SE 660. A foreign corporation doing busif-

In this state transferred its stock to a

nonresident for the benefit of a domestic

corporation which as beneficial owner of the

stock converted the assets of the foreign

corporation. Held a court of equity in the

15 per cent was not a debt due the con-

state might, at instance of a domestic cred-

tractor which could be attached prior to

tor, enforce, by foreign attachment against

content for sale of land by estimated average

nonresident holder of the foreign stock for

provided for resurvey and final settlement

the unpaid stock. Mountain Lake Land Co.

v. Blair (Va.) 63 SE 751. Such a suit is not

made, it cannot be said that it will show an mortgaged premises is not attachable."2 A tax is not liable to attachment against a city."3 Instrumentalities and subjects of interstate commerce as subjects of taxation are treated elsewhere."4

SS 5. \_Procedure in general.\_95--See 11 C. L. 818--An immaterial change in the name of a party in the title of the cause is harmless."6 Amendments are sometimes expressly authorized in attachment proceedings."7 An amendment of the complaint in the principal cause does not affect the attachment proceeding."8

\_Jurisdiction.\_See 11 C. L. 818--In order to issue a valid attachment, the court must, of course, acquire jurisdiction to do so,"9 and the allegation of the grounds of the attachment are usually held to be jurisdictional.1 Where the attachment issues from a court of inferior jurisdiction, the record must show that jurisdiction exists.2 For the purposes of attachment, a debt which has been merged in a judgment has its situs in the state where the judgment was rendered."8 In the federal courts an attachment is but an incident to a suit, and unless the suit can be maintained, the attachment must fall.4 Where the defendant is not served and does not appear, no jurisdiction of his person can be acquired by attachment of his property."8

\_Necessity of issuance of summons and service thereof.\_See 11 C. L. 819--Service by publication must comply with statutory requirements."

underestimate so as to constitute an indebt-

himself concealed to avoid service of summons, original papers must show whether

Innes, 60 Misc. 643, 112 NYS 912, Seller of

defendant is a resident or nonresident. Ho-

land held to have no claim against his ven-

let Tourraine v. Vatter 61 Misc. 54, 113 NYS

dee withch was subject to attachment. Id.

92. Pettus v. Gault \[Conn.\] 71 A 509.

01. Hedge v. Des Moines \[Iowa\] 119 NWW

not an attempt to obtain an attachment in

276.

001. See Commerce, & 2A, snbd. State Burdens on Foreign Commerce.

001. Search Note: See notes in 11 C. L. 818;

20 L. R. A. 446; 49 Id. 223.

See, also, Attachment, Cent. Dig. \*\* 193--\*\* 203, 659--\*\* 778; Dec. \*\* \*\* 66-76, 204--\*\* 224; 4 Cyc.

464--\*\* 469, 813--\*\* 830,

\*\*06. Use of "raIfroad" in one place and "raIfway" in another in attachment pro-

needless against a corporation held 'not a material change in the name. Panamore v. Alexander \[Ga.\] 64 SE 660.

97. Code Pub. Gen. Laws 1904, art. 9, & 28,

expressly provides that the affdavit, short

note, declaration, voucher, pleadings and all

other papers, may be amended in the same manner and to the same extent as the pro-

5. Heyle v. Taylor, 64 Misc. 31, 117 NYS

ceedings in any other action. Kendrick v.

Warren Bros. Co. \[Md.\] 72 A 461. Under

Ann. St. 1906, p. 674, authorizing the court

to correct mistake in name of a party. It may arise name of corporation defendant

in petition. affdavit, bond, writ and return

and substitute other individuals. Glover

Commission Co. v. Abline Milling Co. \[Mo. App.\] 116 SWW 1112.

98. Amendment of complaint in action in

which attachment is issued to cure a defect

does not postpone plaintiff to one acquiring

cripts before amended complaint was filed

where there is no defect in the attachment

affdavit. Dengler v. Kreil-French Plano

Co. \[Ky.\] 119 SW 757.

99. Under Rev. Codes, & 6993, an action in

justce court can be commenced only by

fling a complaint or copy or statement of

blll, and a justice cannot issue an attachable

ment unless a complaint of some sort is

filed. Shandy v. McDonald \[Mont.\] 100 P

208.

001. Under Laws 1902, p. 1519, authorizing

attachment against a resident who keeps

362 ATTAGHMENT SS 6. 13 Cur. Law.

**SS 6.**\_Affidavit and its sufficiency.${}^{\\dagger}$ Necessity.${}^{\\tt See}$\_11 C. L. 319 Formal requisites.${}^{\\tt See}$\_11 C. L. 319--The affidavit must be signed by the affiant.${}^{\\tt See}$ It may be verified before plaintiff's attorney of record.${}^{\\tt See}$ An affidavit appropriately styled sufficiently identifies the cause of action though it does not refer to the petition,${}^{\\tt 10}$ but it must state the Christian name of the defendant debtor unless otherwise authorized by statute.${}^{\\tt 11}$\_13

\_Averments in general.${}^{\\tt See}$\_11 C. L. 319--The statements required in the affidavit must be in the language of the statute or in language of the same meaning.${}^{\\tt 12}$ Whether the grounds may be stated on information and belief depends upon the terms of the statute.${}^{\\tt 13}$ Where such statements are allowed the source of the information must usually be set forth.${}^{\\tt 14}$ Where the grounds are required to be shown to the satisfaction of the court, an affidavit is sufficient if the statements

7. Search Note: See notes in 3 C. L. 361;

**SSuffleent:** An affidavit which alleges that defendant is about to remove his property from the county with intent to defrand his

11 Ann. Cas. 27.

See, also, Attachment, Cent. Dig. # 204-

Creditors justifies a justice in issuing an

360: Dec. Dig. # 77-127; 4 Cyc. 469-516; 3 A.

**& E. Enc. P. & P. 3.**

\*\*&. Purported affidavit not signed by affidavit. Davis v. Sherrill \[Tex.

Code Civ. Proc. $ 932, Curtis-Baum Co. v.

Civ. App. 113 SWP 556. Under Rev. St. 1895,

Lang \[Neb.\] 120 N NVP 178. An affidavit for

arts. 6, 186, the requirement as to signing

attachment which avers that "Stephen J.

by affidavit in mandatory. Id.

\*\*@. Affidavit made before plaintiff's attorney of record as notary is not vol. No

by him for the use and benefit of the def

code provision forbidding it. Vreehal v. Pennysylvania Tanning Co., 130, App. Div.

406, 114 NYS 1002.

**10.** An affidavit appropriately styled and

numbered, stating that it is made at the instance of plaintiff and filed among the

pavisions of $ 5522. Gilbert v. Burke, 11

pers of the suit, sufficiently identities the

suit. White Day Furniture Co. v. First

paceding where the affidavit alleges that

State Bank \[Tex. Civ. App.\] 114 SWP 1159.

the defendant has repudiated the contract

11 An initial is insufficient and such def

geon which the claim in suit is based and

fect cannot be afterwards amended. McGrew v. Steiner \[N. J. Law\] 171 A 1123.

action is one on contract in the sense in

\*\*12 Knuuste v. Phillips \[Jdahol\] 101 P 596;

Myers v. McCormick \[Va.\] 68 SE 427. Affidavit following the language of code held

the ground that no breach of the contract

sufficient. George Norris Co. v. Lavin's Sons,

81 S. C. 36, 61 SE 1103. An affidavit in at

tachment under Rev. St. $ 5522, where the

defendant is a nonresident, in order to give

jurisdiction, must contain statements show-

ing nature of plaintiff's claim that it is just,

the amount which the affant believes the

plaintiff ought to recover, and that the defendant is a nonresident of this state. Glit

bert v. Burke, 11 Ohio C. C. (N. S.) 282.

Under Rev. Codes 1909, 4, the affidavit

must be liberally construed and held suffid

client if language used is substantially

equivalent to the language used in Rev.

Codes 1909, 4 403. Knutsen v. Phillips

\[Idahol\] 101 P 596. Under statute providing

that the affidavit shall state that

ment is not sued out to injure or harass

defendant, if need not add the words "or

either of them" where there is more than

one, since under Rev St. 1885, art. 286, the

singular includes the plural. Doty v. Moore

(Tex.) 112 SWP 1038. Under Rev. Codes 1905,

$ 6942, the affidavit need not set forth the

cause of action. Hemmi v. Grover \[N. D.\]

120 N NVP 561. Under Code 1904, $ 2951, an

tachment therein contained are such as a prudent person would act upon,\[15\] and in construing such an affidavit all the inferences will be indulged that can reasonably be made from the facts stated.\[16\] Whether an affidavit states more than one ground of attachment is a question of construction,\[17\] and so also as to whether the averments are inconsistent.\[18\] Under the practice in some states the affidavit may be aided by the complaint,\[19\] but in other states it is held improper for the complaint to state the grounds of the attachment and any such statement may be disregarded as surplusage.\[20\] A slight variance between the amount alleged in the complaint and the amount stated in the affidavit is not a fatal variance.\[21\] Under some statutes, the affidavit may be amended,\[22\] but it is held that the failure of the affidavit to allege a material fact cannot be cured by evidence that affiant in fact swore to such fact.\[23\]

\_Averments as to nonresidence.\_See 11 C. L. 220. Such averments must usually be as of the affiant's own knowledge.\[24\] An averment that the defendant is a non-resident, when aided by an allegation that the defendant is a corporation under the laws of another state, is equivalent to a statement that it is a nonresident corporation,\[25\] and so also an averment that a named corporation is not incorporated under the laws of the state but is doing business therein.\[26\] Statutory exceptions exempting certain classes of corporations from attachment must be negatived by the affidavit for an attachment against a corporation.\[27\]

**SS 7**.: _Attachment bond or undertaking.\[28\] Necessity.\[See 11 C. L. 220. Under some of the statutes an attachment may issue in certain cases without bond.\[29\]_

**15**.: _Under Code Civ. Proc. $ 636. Brandly_

**v.**: _American Butter Co., 130 App. Div. 410, D.) 120 NVW 561. Fact that affidavit and 114 NYS 896._

**16**.: _Brandly v._ American Butter Co., 130 App. Div. 410, 114 NYS 896.\_

**and that complaint shall control in case of**

**whenment against a foreign corporation held**

**sufficient under Code Civ. Proc. $ 1780. Id.**

**17**.: _An affidavit which states in the language of the statute that debtors "have sold, assigned, transferred, secreted or otherwise disposed of. or are about to sell, assign, transfer, secreted or otherwise, dispose of their property with intent to cheat, or defraud their creditors" states but one ground for attachment. McCarthy Bros. Co. v. McLean County Farmers' Eleventor Co. \[N. D.\] 118 NW 1049. Use of disjunctive conjunction "or" in subd. $ 6383. Rev. Codes 1905, is not to connect two grounds for an attachment, but such subdivision states one ground only consisting of the different phases of fact pertaining to that one ground. Id._

**18**.: _The averment in an affidavit for attachment that the defendant has property which he conceals is inconsistent with an averment that the action is for "necessaries," and is not sufficent to sustain a judgment when it develops that the claim is not one for necessaries. Doran v. Collins, 8 Ohio N. P. (N. S.) 169._

**19**.: _Where petition for attachment under Civ. Code Proc. $ 194, allowing attachments in actions for money due on contract set out a copy of the contract and alleged the grounds of attachment, the affidavit was not bad because not stating that the money was due on contract. Wilson V. Barrett \[Ky.\] 115 SW 812. As to averment of nonresidence of corporation. Edwards Mfg. Co. v. Ashland Sheet Milli Co., 11 Ohio C. C. (N. S.) 478._

**20**.: \_Insufficient statement of grounds in \_Formal requisites._See 11 C. L. 820_

\_Terms.\_See 11 C. L. 821.--In determining the amount of the bond, the value of property attached, and other circumstances are to be considered,30 but interest to accrue is not to be considered.31

\_Liabilities on bond.\_See 11 C. L. 821.--Attorey's fees incurred in the defense of the attachment constitute an element of liability under the attachment bond.32

\_Actions on bonds.\_See 11 C. L. 821.--An action on an attachment bond is ex contractual,33 and the complaint must allege breach of the conditions of the bond.34 Where the plaintiff in such an action claims attorney's fees, he has the burden of proving the value of such services,35 but he need not prove that he has actually paid such fees, proof of liability therefor being sufficient.36 Set-off and counterclaim in such action is controlled by the general rules.37 The judgment should be for the penalty of the bond to be satisfied by payment of damages assessed with interest from date of judgment.38

SS 8. \_The writ or warrant.\_See 11 C. L. 821

SS 9. \_The levy or seizure.\_See 11 C. L. 822.--In some states where real property is attached, it is required that his pendens be filed,41 and special provision is also made as to levies on certain kinds of personality.42 An officer who fails to make a levy is liable for damages sustained.43

Footnote 41: Under Burns' Ann. St. 1908, SS 320, providing that where a shelf ex relates he shall alle written notice to be recorded in his pendens, record requires him to file such notice as well where real estate is situated in the county where action is pending as where action is pending in another county. First Nat. Bank v. Farmers' & Merchant' Nat. Bank (Ind.) St. NE 417. The fact that Ast. 1877, p. 54, c. 24, related solely to actions, affecting title to land, furthest a sufficient explanation for words "In certain cases" and the same do not evince an intent In conflict with the view that it is necessary to file such notice. Id. Objection that Code $ 74, if construed to require notice of attachment of land to be filed in county where land is located as well as in county where action is commenced, conflicts with Burns' Ann. St. 1908, SS 956, providing that order of attachment binds property in the county subject to execution and becomes a Ilen thereon from time of its delivery to the Sheriff, and the further objection that property level on is in custody of the law and not subject to mortgage are answered by Code $ 79, providing that until proper notice has been filed the seizure shall not operate as constructive notice against bona fide purchasers. Id.

Footnote 42: City. Code $ 294 * 13Cur. Law. ATTachment SS 11. 385

_Indemifying bonds,See 11 C. L. 382_

SS 10. \_Return to the writ._44--See 11 C. L. 383_--A return is not materially defective for not stating that property attached was levied on as that of the attachment defendant.45 It is discretionary with the trial court to permit the return to be amended to show the date of levy,46 and it is proper to permit it to be amended to show by what officer the writ was $\\cdot$served.47 In New York where property is attached in the hands of a third person, statutes provide for a certificate as to such property.48

SS 11. _Custody, sale, redelivery, or release of attached property.49--See 11 C. L. 383_--In Missouri a justice has no jurisdiction to appoint a receiver for attached property.50 Statutes, making provision for expenses of a sheriff in keeping attached property, do not apply where a claimant has possession,51 and to entitle a claimant to compensation he must bring himself within the terms of the statute.52

ment judgment is void, the sale thereunder is void.54 Where third persons have rights in the property, a sale may be temporarily enjoined upon proper assurance being given.55

SS 12. _Forthcoming bonds and receipts.60_ See 11 C. L. 823.\_In some states venties on a forthcoming bond must be freeholders 61 or householders.62 The fact that property of a surety consists of stock in the defendant, a corporation, does not disqualify him.63 Failure to approve a bond until after attachment was released does not affect the rights of the attaching creditor.64 A bond is not void because it contains conditions in excess of those required.65

Footnote 64: Failure to approve a bond given to release an attachment until after attachment was released would not bar an action thereafter by the attaching creditor as formal ap-proval by plaintiff attorney was for protection of officer making the levy. Dakota v. Barich v.

- 13Cur. Law. ATTachment SS 14A. 367

Action on the bond must be brought within the period prescribed," and, in some states must be brought by the real party in interest." The complaint must conform to the general rules of pleading," but the fact that it describes the bond as a statutory one when it is in fact a common-law bond is immaterial where the bond is set out." The evidence must identify the bond as the one given." The Iowa statute relative to priority of liability upon judgments in actions on bonds does not apply to judgments in actions on forth coming bonds."

SS 13. _Lien or other consequences of levy._"See 13C. L. SS24.-An attachment is a lien on the property to secure the satisfaction of any judgment that may be recovered." Such lien is created when the attachment is made " and is merged in the judgment rendered in the case." One who asserts that the lien has been set aside by an adjudication in bankruptcy has the burden of proving it."

SS 14. _Conflicting levies and liens, and hostile claims. A. Priorities in general._"See 13C. L. SS25.-An attachment reaches only the debtor's interest in the property, at the date of the levy," and acquires no greater rights than the debtor had," and is subject to all prior liens." As a general rule, attachments take precedence as between themselves in the order of their priority in time."

- 14. _Conflicting levies and liens, and hostile claims. A. Priorities in general._"See 13C. L. SS25.-An attachment reaches only the debtor's interest in the property, at the date of the levy," and acquires no greater rights than the debtor had," and is subject to all prior liens." As a general rule, attachments take precedence as between themselves in the order of their priority in time."

- 159: \_Dee. Dig. SS 175-185; 4 Cyc. 512-514, 605,_tained a right to immediate possession by service of bond, the fact that possession was hindered or delayed by bankruptcy proceedings._"Under Rev. Codes, 8 4302, an attach-ceedings did not affect liability of sureties. Ehrlich v. Skkmberg, 118 NYES 602. That receiver in bankruptcy required claimant to give a bond for his protection dice not affect liability of sureties. Id.

- 16. _Where a claimant of goods in attachment actually received them under a bond approved by plaintiff's attorney, the subsequent destruction of the original bond before or after claimant obtained possession did not relieve the sureties from liability. Ehrlich v. Skkmberg, 116 NYES 602._"That 72. An action on a claimants bond, given under Laws 1902, p. 1517, must be brought within the time specified. Berner v, Walker, 63 Misc. 262, 116 NYES 615.

- 17. _Where bond to release an attachment ran to the attachment creditor and inherit upon principal's failure to pay judgment against him, the attachment creditor was the proper party in interest to sue on the bond. Dakich v. Barich, 37 Mont. 490, 97 P 931._"Complaint on bond given to release an attachment held sufficiently definite and cer taim. Dakich v. Barich, 37 Mont. 490, 97 P 931.\_"The evidence must identify the bond as the one given." The Iowa statute relative to priority of liability upon judgments in actions on bonds does not apply to judgments in actions on forth coming bonds."

- 18. _Lien or other consequences of levy._"See 13C. L. SS24.-An attachment is a lien on the property to secure the satisfaction of any judgment that may be recovered." Such lien is created when the attachment is made " and is merged in the judgment rendered in the case." One who asserts that the lien has been set aside by an adjudication in bankruptcy has the burden of proving it."

- 19. _Conflicting levies and liens, and hostile claims. A. Priorities in general._"See 13C. L. SS25.-An attachment reaches only the debtor's interest in the property, at the date of the levy," and acquires no greater rights than the debtor had," and is subject to all prior liens." As a general rule, attachments take precedence as between themselves in the order of their priority in time."

- 10. _Where claimant of goods attached ob-tained a right to immediate possession by service of bond, the fact that possession was hindered or delayed by bankruptcy proceedings._"Under Rev. Codes, 8 4302, an attach-ceedings did not affect liability of sureties. Ehrlich v. Skkmberg, 118 NYES 602. That receiver in bankruptcy required claimant to give a bond for his protection dice not affect liability of sureties. Id.

- 11. _Where a claimant of goods in attachment actually received them under a bond approved by plaintiff's attorney, the subsequent destruction of the original bond before or after claimant obtained possession did not relieve the sureties from liability. Ehrlich v. Skkmberg, 116 NYES 602._"That 72. An action on a claimants bond, given under Laws 1902, p. 1517, must be brought within the time specified. Berner v, Walker, 63 Misc. 262, 116 NYES 615.

- 12. _Where bond to release an attachment ran to the attachment creditor and inherit upon principal's failure to pay judgment against him, the attachment creditor was the proper party in interest to sue on the bond. Dakich v. Barich, 37 Mont. 490, 97 P 931._"Complaint on bond given to release an attachment held sufficiently definite and cer taim. Dakich v. Barich, 37 Mont. 49 368ATTachment $ 14B. 13Cur. Law.

Between attachments and conveyances in general.See 11C. L. 225--A bona fide sale takes precedence over subsequent attachments against the seller,\[88\] and so, also, as to prior assignments,\[89\] and it is immaterial that the purchase money was paid a person other than the person named as buyer;\[90\] but a claimant cannot rely on title acquired from a third person after levy of the execution and filing of the claim,\[91\] nor can the attaching creditor attack a prior sale on grounds personal to debtor.\[92\] The title acquired by the purchaser at a sale in bankruptcy is conclusive as against subsequent attachments against the bankrupt.\[93\]

(SS 14) B. Procedure. In general.\[94\] See 11C. L. 225--Claimants of attached property may usually intervene in the attachment proceedings,\[95\] the allowance of such intervention being, under some of the statutes, discretionary with the court,\[96\] but the intervener occupies the position of a plaintiff in replein,\[97\] and must recover upon the strength of his own title,\[98\] as to which he has the burden of proof.\[99\]

longing to defendant after his own rights, $S. A written assignment of money in exs- If any, are satisfied. Persing v. Reno Stockok Brokerage Co. \[Nev.\] 96P 1054. Is inferior thereof to the assignee made in definite terms and without reservation, gives the askinge priority over a creditor of the as- filed within time provided by law, though after issue of attachment, but delivered and accepted before levy, is prior thereto. $S. A written assignment of money in exs- If any, are satisfied. Persing v. Reno Stockok Brokerage Co. \[Nev.\] 96P 1054. Is inferior thereof to the assignee made in definite terms and without reservation, gives the askinge priority over a creditor of the as- filed within time provided by law, though after issue of attachment, but delivered and accepted before levy, is prior thereto.

13 Cur. Law. ATTachment SS 15B. The intervener cannot therefore, attack the plaintiff's action 1 or complain of irregularities therein,2 and interveners claiming title under transfer by the defendant after the attachment can only question the validity and justness of the plaintiff's debt.3 In detinue against a sheriff, a plea justifying under several writs does not set up distinct defenses.4 In such proceeding the plaintiff cannot raise the question of the duty of the sheriff to first exhaust other goods of the debtor.5 In Florida the valuation placed upon the property by the sheriff is controlling where no issue as to value is raised by a claimant.6 The right to enjoin an attachment sale has already been considered in a prior section.7 In a suit by the beneficiary of a trust deed to set aside an attachment sale of the property covered by the trust deed, a defense of payment of the debt secured by the trust deed precludes any defense based upon the laches of the grantor in assailing the attachment,8 nor is laches in attacking such sale available to the defendants where they go further than mere defense of their title and ask for affirmative relief based on such title.

of action sued upon did not accrue until after the attachment issued,18 but will not be quashed for uncertainty because of a slight variance between the affidavit and petition.19 An attachment issued upon inconsistent grounds is not void but only voidable.20 In Massachusetts an attachment of land is dissolved by the debtor's death before seizure, followed by the granting of administration within the period prescribed.21 Where an attachment is dissolved under the Bankruptcy Act by proceedings thereunder, the costs thereof are a preferred claim.22 In the absence of statutory provisions to such effect, the appointment of a receiver to take possession of the attached property is not ground for dissolving the attachment; 23 but a state legislature has power, so far as the courts of such state are concerned,24 to make a receivership ground for dissolution in cases where the property can be held under laws of the state for the benefit of creditors who prove their claims there.28

(SS 15) \_C. Procedure.26 See 11 C. L. 327.\_Where it is sought to discharge an attachment by traverse of facts alleged, the traverse must be as direct and explicit as if it were an answer to a complaint.27 The question of ownership of real estate cannot be adjudicated on a motion to dissolve.28 An objection to a motion to discharge that another motion is pending is of no merit where the earlier motion is denied before the later one is granted.29 Under a rule that a defendant may apply for an order discharging an attachment whenever he shall have appeared he is not required to make such application at the time of his appearance.20 In Ohio a motion to discharge may be made at any time before judgment.21 In New York a

18. VWhere amended complaint showed that

Transportation & Transit Co., 198 Mass. 690, cause of action sued upon did not accrue

19. Attachment should not be quashed for uncertainty in amount sued for where petition alleges a bond on defendant's part to pay plaintiff the reasonable value of certain plans and in afflawuit to petition, plaintiff swore that defendant was indebted to him for $1,050 and prayer alleges $1,000. 118 SW 561. 26. Served Note: See note in 3 Ann. Cas 186.

01. Doran v. Collins, 8 Ohio N, P. (N. S.) 169.

01. Pub. St. 1882, c. 161, re-enacted in Rev. Laws 1902, c. 167, was designed to prevent interference with orderly settlement of states and bring all property into control of representatives. Institution for Sav. v. Puffer, 201 Mass. 41, 87 NZ 562. Under such statute an attachment was dissolved where application for administration was made within a year, though defective appending administrator four years after death reited that it was made on a petition after the year, where such petition was a supplemental one. Id.

01. Under Bankruptcy Act July 1, 1985, c. 641, $ 6413, providing for priorities and Pub. Laws R. I., p. 61, e. 844, declaring that every common-law ass'gnment shall be effectual to dissolve an attachment placed upon the property not more than four months prior to the assignment and that costs of attachment shall be a preferred claim against the assigned estate, held, where an attachment is dissolved by bankruptcy proceedings, the costs thereof are a preferred claim. In re Iroquals Mach. Co., 166 F 620.

01. Receivership was not ground for dissolution prior to enactment of Rev. Laws, c. 167, 168, 126, 127. Borden v. Enterprise motion to vacate may be made at any time before appropriation of the property to the judgment,\[32\] and where a motion to vacate is not supported by affidavits, the plaintiff may remedy any defects in the original papers which do not go to the jurisdiction.\[88\] The statutes of New York requiring the moving papers to specify irregularities do not apply to a motion to vacate an attachment against a national bank.\[34\]

\_Evidence.\_See 11 C. L. 229_On motion to vacate, an affidavit on information and belief need not be regarded as undisputed evidence.\[85\] Whether the grounds of the attachment are supported must be determined from the evidence in the particular case.\[86\]

\_Judgment and decree or order.\_See 11 C. L. 829_An attachment is released by the order granting the motion to dissolve regardless of the grounds therefor,\[87\] and an order dissolving an attachment vacates all proceedings touching the property.\[88\] Where the defendant is not personally served and does not appear, the judgment binds only the property attached.\[88\] Where no special judgment is taken against property attached, errors in rulings on issues relative to the grounds of attachment are immaterial.\[89\] In Arkansas where the ground of attachment is not denied, if judgment is rendered for plaintiff, the attachment must be sustained.\[90\] In Kentucky in an action against joint debtors where joint property is attached under an order against one, if judgment be rendered against all and the attachment sustained, the whole of the property may be subjected to the judgment.\[91\] Recovery of costs in the main suit is sufficient to sustain the attachment.\[88\] - A judgment sustaining

\*\*SA. Under Rev. St. U. S. $ 6242, prohibtt-

the defendants that sufficient goods should

ing issuance of attachment against a national bank by a state court prior to judge-

port charge in the affidavit that the defendment where attachment issued in the New York Supreme Court, the bank could move

arts were about to dispose of their property with intent to defraud their creditors, to vacate though issue had been joined

since, under Code Civ. Proc. $ 682, such

on-target conflict with the property of the property of a judgment.

speak of their creditors. Speaks v. Lisey

appropriation of the property to a judgment.

McBride v. Illinois Nat. Bank, 128 App. Div. 503, 112 NYS 794.

\*\*33. Under Code Civ. Proc. $ 683, providing

that defendant may move to vacate the warrant either upon papers upon which it

was granted, or upon affadavits in which

case the affidavits may be opposed by new

proof by plaintiff. Held where defendant

prevents no affidavits plaintiff could supply

defects in moving papers which relate to substance of the claim but the cannot remedy

endy jurisdictional defects. Brandley v.

amit act'on. Adams v. Overboe, 105 Minn.

American Butter Co., 60 Misc. 547, 112 NYS

1080.

\*\*34. A motion to vacate an attachment because the "warrant was illegally issued

against the property of defendant, a national bank, not located in this state," is

sufficient under Rev. St. U. S. $ 5242 prohibtting issuance of attachment by a state court, against a national bank before judgment for plain-

ment, Gen. Rules Proc. $7, requiring moving

papers to specify irregularities, being in-

applicable. McBride v. Illinois Nat. Bank,

128 App. Div. 503, 112 NYS 794.

**35. Affidavit of defendant's attorney that defendant is not a foreign corporation.**

George Norris Co. v. Levin's Sons, $1 S. C.

\*\*36. Evidence that the constable, when he

levided the attachment, simply marked certain goods as "attached" but made no further effort to take possession of them, notwithstanding the expressed willingness of an attachment and adjudicating the property subject thereto can be set aside only on a direct proceeding for that purpose,\[44\] but a judgment on a motion to discharge an attachment, on the ground that the attached property was exempt, is not res judicata in a subsequent direct proceeding to subject such property to the judgment rendered in the action in which the attachment was issued.\[48\]

_Appeal._\[See 11 C. L. 830\]. Proceedings to obtain appellate review are controlled by the statutes.\[46\] An order dissolving an attachment is final and appealable.\[47\] Under a provision that an annulment by judgment for defendant is suspended by a stay of proceedings, an attachment is not annulled by reversal of judgment where a further appeal is taken from the judgment of reversal.\[48\] Where the main cause is reversed and remended, the attachment must also be remended with instructions to sustain it if judgment be for the plaintiff on new trial.\[49\]

SS 16. _Other remedies._\[50\]. See 11 C. L. 831.-Supplementary proceedings generally are treated elsewhere.\[61\]

SS 17. _Wrongful attachment._\[52\]. See 11 C. L. 831.-In some states damages may be allowed on the discharge of the attachment.\[53\] Damages for a wrongful attachment by a vendor against the vendee cannot be recovered in an action by the latter against the former for wrongful dispossssion, where it appears from the plaintiff's own pleadings that he was not dispossessed until after the attachment and until the effect thereof had been overcome by him.\[54\] An action for wrongful attachment must be brought within the period prescribed.\[55\] To justify a levy on goods held by a mortgage, the officer must show that the plaintiff is a creditor of the mortgagor and entitled to question the validity of the mortgage.\[56\] In North Dakota the fact that the claimant made no demand or verified claim is a defense to the sheriff only when property of a third person is in the hands of defendant under such circumstances as to raise a presumption that he owns it.\[67\] A sale under an invalid attachment may sometimes be enjoined.\[58\] The attachment itself is a good defense to an action by a fraudulent transferee against the officer.\[59\]

44. Jessup v. Atchison, etc., R. Co. \[Kan-\] process pending appeal, may be so allowed: Hines v. Stephens \[Ark.\] 119 SWV 664.

01. Shelby v. Ziegler \[Okl.\] 98 P 989.

01. The filing of a petition in error within the required time together with an undertaking for retention of the attached property is a sufficient compliance with Rev. St. $ 555b. Edwards Mfg. Co. v. Ashland Sheet Mill Co., 11 Ohio C. C. (N. S.) 479.

01. Sailor Planing Mill & Lumber Co. v. Moyer. $ 5 Pa. Super. Ct. 503.

01. Under Code Civ. Proc. $ 334, an attachment was not annulled by reversal of judgment in the attachment action where an appeal to the court of appeals was taken from the judgment of reversal. Milliken v. Fidelity & Deposit Co., 113 NYS 809.

01. Hogg V. Thurman \[Ark.\] 117 SWV 1070.

01. Senen Note: See Atchmann, Cent. Dig. $ 755-778; Dec. Dig. $ 221-224; 4 Cyc.

829, $30; Contempt, Cent. Dig. $ 58-80; Dec. Dig. $ 20-26; $ 575-69.

51. See Supplementary Proceedings, 10 C. L. 1765. See, also, Crediters' Suit, 11 C. L. 936.

01. Senen Note: See notes in 3 C. L. 376; 5 Id. 317, 318; 68 A. S. R. 266; 86 Id. 400; 10 Ann. Cas. 954.

See, also, Attachment, Cent. Dig. $ 1307-1402; Dec. Dig. $ 355-384; 4 Cyc. $31-887; 3 A. & E. Enc. L. (26). 245.

53. Under Kirby's Dig. $ 381, recovery of proceeds of attached property sold, under a 13 Cur. Law. ATTORNEYS AND COUNSELORS $ 1. 373

\_Pleading.\_See 11 C. L. 381.--An action for wrongful and malicious levy upon exempt property is one for abuse of process and not for malicious prosecution.69

\_Evidence and questions of fact.\_See 11 C. L. 382

\_Damages.\_See 11 C. L. 382

\_The measure of damages recoverable are such as naturally and reasonably result from the wrongful attachment,61 the extent of which the complaining party has the burden to prove.62 Attorney's fees are an element to be considered.63 The rule that interest on the value of personally wrongfully attached may be allowed as damages does not apply to wrongful attachment of land.64 Exemplary damages are recoverable in some states.65

Footnote 63: Attainment was brought against a foreign corporation and sustained on that ground but action on the merits was dismissed and appealed and appeal dismissed.

**Attempts, see latest topical index.**

**The scope of this topic is noted below.66**

**SS 1. Admission to Practice and License**

**SS 2. Outliers, Privileges, and Disabilities, 274. 390. Lien, 390. 3. Suspension and Disabilities, 375. 4. Crenition and Termination of Relation**

**SS 3. Rights and Liabilities to Third Persons, 391. 4. Crenition and Termination of Relation**

**SS 5. Rights, Duries, and Liabilities Between**

\*\*SS 6. Renedies Between the Parities, 392. 5. 6. Compensation and Lien, 385. 6. 7. Compensation and Lien, 385. 8. 8.

privilege may be surrounded with whatever restrictions the legislature may in reason prescribe.\[71\] As a requisite of admission it is usually required that the candidate present evidence that he is a person of good moral character.\[72\] A large discretion as to the determination of the candidate's proficiency may be vested in a board of examiners.\[73\]

**SS 2.**\_Duties, privileges and disabilities.\[74\]-See 11 C. L. \[33\]-An attorney is an officer of the court,\[75\] and the court may exercise its summary jurisdiction to compel him to perform his duties as such an officer.\[76\] The duties of an attorney as an officer are largely controlled by statute,\[77\] but, whatever the source of his duties, he owes the duty of good faith to and honorable dealing with the judicial tribunals before which he practices.\[78\] It is unprofessional for an attorney to refuse to re-ceive or acknowledge the receipt of a proper notice,\[79\] to testify for his client,\[80\] or act in an official capacity in connection with the case.\[81\] A contract between a layman and an attorney whereby the former agrees to hunt up and bring to the attorney persons having causes of action for personal injuries, in consideration of a division of the fees, is against public policy,\[82\] and such action by an attorney is often prohibited by statute.\[83\] It is not necessarily against public policy, however, for an attorney to guaranty. the payment of a claim or even to assume payment thereof, in order to induce the creditor to institute proceedings thereon.${}^{\\ast\\ast}$

An objection to a foreign attorney's right to appear in a case when first raised on motion to retax costs is raised, too late.${}^{\\ast\\ast}$

SS 3. \_Suspension and disbarmeni. Jurisdiction and grounds.${}^{\\ast\\ast\\ast}$\__See 11 C. L. 384_

As incident to the power of admission, courts possess the inherent power of disbarment,${}^{\\ast\\ast}$ and such power is sometimes conferred by statute upon tribunals not strictly courts but which exercise judicial powers.${}^{\\ast\\ast}$

The power to disbar may be curtailed by legislation,${}^{\\ast\\ast}$ but it is not necessarily taken away by a statute vesting in another court exclusive jurisdiction in the matter of admissions to practice.${}^{\\ast\\ast}$

Statures imposing the punishment of disbarment are highly penal in their character and are to be strictly construed,${}^{\\ast\\ast}$

and the power of disbarment should be exercised with great moderation and judgment,${}^{\\ast\\ast}$

but the court will not hesitate to exercise its power in a proper case,${}^{\\ast\\ast}$

and, since removal is primarily for the protection of the public,${}^{\\ast\\ast}$

it is not always essential that the wrongdoing be intentional,${}^{\\ast\\ast}$

nor will dis

### Attorneys and counselors $ 3.

13 Cur. Law.

bardment proceedings, based upon charges made by a client, be affected by the withdrawal of the charges by the client "" or by the repayment of money misappropriated; " nor is it a defense as a matter of law that the practice complained of has long been acquiesced in," or that the offense charged was committed while the attorney was appearing for himself as a party." The most general ground for disabarment is unprofessional conduct," such as disrespectful conduct towards the court," appropriation of clients' funds," extortion," taking unfair advantages of clients," contracting for the procurement of causes of action," presenting false or

- 96 In re Rockmore, 117 NYS 512,
- 97 D:Sabarment not to be used to affect collection of claims against attorney. In re Rockmore, 117 NYS 512.
- 98 Proceedings before secretary of Interior. Garfield v. U. S., 32 App. D. C. 109.
- 99 Where charge was professional misappropriated in making sham pleas and false afdavits. In re Bauder, 128 App. Div. 346, 112 NYS 761.
- 1. Power of disabarment can be exercised only where attorney's conduct unfills him to be member of profession. State v. Rossman
- 101 P 257. Conduct violutive of ordinary standard of professional obligation and honors is unprofessional and disreputable. Garfield v. U. S., 32 App. D. C. 109. In order to justify disabarment it is not necessary that attorney's offense should constitute contempt or crime, or that he be conducted of crime or contempt before disabarment. In re Thatcher \[Ohio\] 89 NE 39. Real question in disabarment proceedings is whether respondent is fit person to be longer allowed privileges of attorney, whether he has shown himself by lack of appreciation of ethical standards and by unworthy conduct to be no longer worthy of recognition as officer of courts. Id. Attorney's action in permitting guardian ad libtem to receive settlement money without giving security in disregard of Civ. Code Proc. $ 474, would call for severe censor, if not dislegitimary action. In re Hart, 131 App. Div. 661, 116 NYS 193. Attorney presenting claim against state to legislature, with knowledge that appraisement had been changed and altered, and was fraudulent, was guilty of gross unprofessional conduct and breach of professional ethics. State v. Fisher \[Neb.\] 117 NW 882, motion for re-hearing overruled Id. \[Neb.\] 117 NW 249. Where attorney as justice of peace performs judicial duties in manner indicating wild! disregard of modes of criminal procedure, and is guilty of gross carelessness in hand-ling funds, the facts constitute cause for his removal. In re Hobbs \[N. H.\] 73 A 303.
- 2. Attorney may criticise judgments and conduct of judges in decent and respect-ful manner but should not degrade or intimidate judge or bring office into contempt by publication of libelous matter imputing impeatable offenses. In re Thatcher \[Ohio\] 89 NE 39. Person claiming protection of Const. art. 1, $ 11, as to freedom of speech, must also be held responsible for abuse of privilege. Id.
- 3. New York City Ass'n of Bar v. Chapel, 181 App. Div. 69, 115 NYS 885: Commonwealth v. Roe \[KY.\] 112 SW 683. Evi-dence held to show wrongful detection of13 Cur. Law. ATTORNEYS AND COUNSELORS SS 3.377

fectitious affidavits to the court,7 or conviction of crime.8 Generally the causes enumerated by statute for the suspension or revocation of an attorney's license do not include disabarment for other causes not specified.9 A disbarred attorney who subsequently procures admission in a sister state is guilty of such fraud or deceit as will merit disabarment 10 and it is also a fraud upon the public for a disbarred attorney to procure his election to the office of a public attorney.11 Misconduct which may be corrected by the trial court is not cause for disabarment.12 Disabarment deprives the party disbarred of every privilege to which his license entitled him,13 and

Footnote 13: The author is grateful to the anonymous referees for the support of this paper.

5. Procurement of conveyance and fees

viction alone. Id. Under Rev. St. 1887, from mentally incompetent client, where client practically rendered penniless, ground

if convicted of crime involving moral tur-for disabarment. In re Egan \[S. D.\] 117 NW

pitude. In re Henry, 15 Idaho. 755, 99 P

874. Evidence held to snowrecept of propperty from client for attorney's own benefit

ness, vlness, or depravity in the private and not to indemimiry bondsmen of such

and social duties which a man owes to his client on criminal charge or under agreement to account. Id. Evidence held to

trary to the accepted and customary rule show client incompetent. Id. Attorney,

of right and duty between man and man." guilty of purchasing hourly-land warrants

Id. Larceny as a crime involving "moral

from client before their issue at: inade-

tuprlude." Id. Under B. & C. Comp. 1067,

quate price, disbarred. Garfield v. U. S.,

subd. 1, as to suspension and removal of

$2 App. D. C. 109; Id. 32 App. D. C. 143,

attorneys, a judgment of conviction is con-

Attorney, guilty of misconduct in procur-

clusive evidence against defendant where

ing property from his client without suffi-

cime of which attorney has been con-

client consideration, and procuring divorce

victed is felony or misdemeanor involving

by accepting evidence of opposite party,

v suspended for one year. State v. Richard-

P 713. Under Rev. St. 1887,

$4002, 4003, son, 132 La. 1064, 48 S 465. Where attorney sought to induce client charredred with

be court of record. In re Henry, 15 Idaho,

murder to execute notes to raise money,

755, 9 P 1064. St. 1907 (Pub. Laws, p.

and client hired other counsel wheneverupon

1342. e. 941,

$2, as to disabarment of attor-

attorney wrote that client without his

as.

visory convicted of crime, applies only to

sistance would hang, that "he had better

get busy," etc., conduct was highly im-

proper and unprofessional. Ex parte Zitit-

son \[N. M.\] 99 P 689.

**6. Under Code** Civ. Proc. 8 74, attorney

contracting to pay person part of compen-

sation received from cause of action pro-

cured by such person is guilty of such

misconduct as to justify disabarment. In

re Shay, 118 NYS 146.

**7. Presentation of false and fictitious**

affidavits on motion for new trial ground

for disabarment. In re Duncan, $1 S. C. 290,

62 SE 406. Disabarment ordered especially

since it also appeared that such attorney

had previously been subjected to similar

proceedings for malpractice. Id. Conduct

of attorney in causing execution of false

statement, forging persons name and protrufl

y that, forging reasons

and protrufl

jurat to such

variant
while

reprehensible, was not

cause for disabarment, since no attempt to

mislead or deceive court by such spurious

affidavit. In re Watson \[Neb.\] 119 NW 451

Evidence held to show that attorney

wrongfully signed appeal bond with name

of client, without authority, justifying disabarment. People v. Mianoy, 240 Ill. 96,

88

NB 287.

S. Attorney guilty of barrards as defined

by statute may be disbarred, since barrards

was crime at common law. State v. Rossman \[Vwash.\] 101 P 357. Before attorney

can be suspended or removed under B. & C. Comp. $ 1067, subd 1, he must have been

convicted of felony or misdemeanor as

terms are defined in statute. State v. Biggs \[Or.\] 97 P 718. Conspiracy to sub-

orn perjury not crime in state and neither

felony or misdemeanor within statute for removal or suspension on account of con-

convention in state. In re Ebbbs, 150 N. C.

44, 63 SE 190. Rev. 1905,

811, is siml-

larly construed as to word "convicted." Id. Unnecessary under B. & C. Comp. $ 106 an attorney practicing law after an order of disabrment is punishable as for a contempt.14 The court, in its discretion, may usually suspend instead of disbarring,14 and in some cases of professional misconduct will merely censure14 the offending attorney.

Footnote 20: Notice served upon accused pursu, in the form of disbarring,14 and in some cases of professional misconduct will merely censure14 the offending attorney.

Footnote 31: The court, in its discretion, may suspend instead of disbarring,14 and in some cases ture, the information should disclose that defendant is amenable to the proceeding and the facts constituting the misconduct of which complaint is made,\[37\] but, where the proceedings are considered to be civil in nature, the rules of evidence in criminal cases are held inapplicable.\[28\] In any case, however, the presumption of innocence obtains,\[29\] and the evidence must be clear and satisfactory in order to warrant disabarment.\[30\] Admissions of the accused which bear upon his motive in doing the things complained of are admissible against him when such motive is material.\[31\] Conversations between associate attorneys in connection with the conduct of one of them are not privileged on disabarment proceedings based on such conduct where they do not affect the client's interests.\[32\] A record of conviction in a criminal action in another jurisdiction is not conclusive evidence in a disabarment proceeding,\[38\] but is admissible upon a charge of unprofessional conduct, though such conviction be not itself ground for disabarment.\[14\] Under a statute making conviction of a crime absolute ground for disabarment, no defense is admissible where such a conviction is proved,\[38\] and a demurrer to the evidence in such a case does not admit guilty of a crime shown thereby.\[36\] A license conditioned upon the absence of fraud, in a certain transaction in course of litigation is forfeited by a finding of fraud, though the time for appeal from the judgment based on such finding has not expired.\[37\] An affirmative defense must be sustained by sufficient evidence.\[38\] In the absence of statutory provisions as to costs, the court may order each party to pay his own costs.\[39\] A judgment of disabarment based on one of several separate charges may be sustained on appeal though the rest of the charges fail.\[40\] A supreme court will take judicial notice of a judgment of disabarment.\[41\] Where a judgment of disabarment has been entered and remains unimpeached, the attorney so punished can not recover damages against the parties procuring the same on the theory of malicious prosecution and abuse of process.\[42\]

torney was guilty of unprofessional con-

32. Statements as to existence and use of dust where misappropriation of moneys

false affladavit alleged to have been pro-

charged. In re Rockmore, 117 NYS 512.

27. State v. Quaries \[Ala.\] 48 S 499. In

01. State v. Quaries \[Ala.\] 48 S 499. In

01. Disabarment proceedings being in

1900-1, p. 2227, $ 1, and Code 1896, $ 590,

subd. 6, information held insufficient in fall-

190.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.

Reinstatement. See 7 C. L. 123--Reinstatement may be allowed in a proper case,44 and mandamus lies to compel reinstatement where the order of disabarment is void,44 but the election of a disbarred attorney to the office of a public attorney does not of itself reinstate him.45

SS 4. \_Creation and termination of relation with client.46--See 11 C. L. 387--The existence of the relation is usually a question of fact,47 which the party having the affirmative of the issue must prove 48 by proper evidence.49 Power to appoint,50 good faith 61 and legality of purpose,52 are essential elements of a valid appointment. A retainer is to be strictly construed against the attorney,58 and, the relationship of attorney and client being one of trust and confidence, it need not be continued where distrust arises, and the efficiency of the attorney is seriously impaired,54 and a contract for no specified period of time is terminable at the will of either party,58 provided payment for the services rendered is made.59 The relation

dence was introduced by attorney's opponents. Id. Payment of witness' fees and commissioners' fees by citizens procuring disabarment of attorney, proper. Id.

43. In re Hobbs \[N. H.173 A 203. Where attores was disbarred upon charges of unprofessional conduct of most reprehensible character and in some instances of commission of criminal offenses, applica-t. 139 Ill. App. 277.

01. Questions as to payment for work tion of many laymen and lawyers vouching as to lhs showing of uprightness. In re Clark, 125 App. Div. 348, 112 NYS 777.

01. Where proceedings to disbar attorney from practicing before secretary of interior did not constitute due process of law. Garfield v. U. S., 32 App. D. C. 104.

01. Danforth v. Egan \[S. D.\] 119 NWU 1021.

01. Search Note: See notes in 7 C. L. 323; 11 Id. 338; 23 L. R. A. 707; 119 A. S. R. 1035.

01. The appointment of an attorney who was a brother of an administrator could not be considered fraudulent and collusive, when nearly all of the helirs had previously contracted with such attorney for the prosa-t. 1008.

01. Employment of counsel held question of fact. Brooks v. Brierton, 142 Ill. App. 389.

01. Where collection of claim against government was mainly dependent upon proper presentation to congress, employ-employment of attorney to prosecute such claim for insurance business and that work was satisfactory. Wayte v. Red Cross Protective Soc., 166 F 372. Attorney held auquerized evidence to appear for dis-vored woman, so as to give court jurisdiction. Tausick v. Tausick \[Vwash.\] 100 P 1757.

Evidence insufficient: Relationship of attorney and client not shown. In re Malcom, 129 App. Div. 226, 113 NYS 666. Fact that attorney was office associate of two defendants and employed by same collection agency would not justify inference of authority to appear for these defendants in suit against them. Thomson v. Patel, 235 Ill. 341, 85 NE 603. Evidence in conflict but relation held not proved. Brooks v. Ardizzone \[CAL. App.\] 98 F 393; In re Malcom, 129 App. Div. 226, 113 NYS 666. Where release executed. Merchant's Nat. Bank v. Manning, 139 Ill. App. 277. Evidence held not to show attorney's employ-employment of the liability of the 13 Cur. Law. ATTORNEYS AND COUNSELORS SS 5.381

may also be terminated by the rendition of the services contracted for," or by the death of one of the parties to the contract." The continuance of an attorney's employment for a corporation may be limited by the by-laws curtailing the power of the trustees to contract." The attorney is sometimes held to be entitled to notice of his discharge even where he failed to perform the services or was negligent in performing the same," but such notice is not necessary where the relation is terminated ipso facto because of the deceitful attitude of the attorney." The court can pass upon the question of termination of the relationship only when it is presented for determination in the due course of litigation."

_Substitution._ See 11 C. L. 289--In a proper case the client may apply to the court for a substitution of attorneys," and on such an application, if the amount of compensation is disputed, or if the question of the existence of the attorney's lien is controverted, the court has ample power to determine such issues in a summary manner." The question whether the substitution shall be conditioned upon the payment of fees usually depends upon whether the client has received any benefit." An appeal from the denial of a motion for substitution usually involves only the question as to whether the order should be unconditional or conditioned upon the payment of fees," and this question must be determined with reference to whether the client has received any benefit from the attorney's services."

SS 5. \_Rights, duties, and liabilities between attorney and client. Loyalty and good faith." See 11 C. L. 289--The relation between attorney and client is one of time, is not within statute of frauds as and sell land terminated ipso facto where agreement not to be performed in one year, client in fact owned no land, it being held Mellov v. Fulton \[OKL.\] 98 P 911. - trust and confidence,69 and the strictest fidelity to his retainer must be observed by the attorney.70 This obligation of fidelity is a continuing one,71 and requires the disclosure of all facts involving the client's interest,72 the attorney having the duty of proving his good faith, if the transaction is questioned.73 Representation of adverse interests is, of course, entirely precluded,74 but the fact that an attorney acted for client in certain matters, but was never consulted as to boundary line of his client's lots, with other facts has been held not to preclude the attorney from subsequently acquiring adverse possession to a strip of land adjoining the client's lots.78 The duties of an attorney do not necessarily end with the rendition of judgment in a case which he has been employed to prosecute.78

\_Diligence.\_See 11 C. L. 440--A client may recover damages from his attorney77 for the negligence of the latter in the conduct of the business for which he was employed,78 but an attorney is not liable to a client merely because he advises the compromise of a case which the client thinks he might have won.79

69. Crane v. Gurnee \[N. J. Eq.\] 71 A 338; fnAdvit as to expediency of settlement can not be accepted by court. In re Stanley, #2

In re Egan \[S. D.\] 117 NW 874.

70. Crane v. Gurnee \[N. J. Eq.\] 71 A 338; Misc. 593, 116 NYS 1126. One retaining at-In re Thatcher \[Oni\] 89 NE 39.

turned to secure for her the administration good faith required. In re Egan \[S. D.\] 117 NW 874; Haimes v. Stroud \[Tex. Civ.\] 8605, is not entitled to information Appl. 112 SW 775.

Compromise by minor\* acquired by her counsel in prior pro-attorexy which was approved by court held

fessional relations concerning execution of not in fraud of client, especially in view

will by brother of her husband in which of Sayles' Ann. Civ. St. 1897, art, $498u, authorities such a compromise, though such

he devised his property to his mother, not-optimising such a compromise eventually resulted to the attorney's benefit. Hart v. Hunter \[Tex. Civ.\] 8749, to prevent beneficiary thereof should above all other creditors be held to

prostate it until after the mother's rights taking

being with his clients. Johnson v. Tennese Oil, etc., Co. \[N. J. Eq.\] 69 A 788.

71. Cannot make use of knowledge acquired from client, or acquire interests-adverse to client or those claiming through him even after confidential relations cease. Sanford v. Flint \[Minn.\] 122 NW 315.

01. Where attorneys represented client in selling oil rights, it was their duty to ad-vise such client of all circumstances, prop-exttions and actions taken, bearing on the value of her interest and affecting the de-sirability of selling the same. Snow v. Haimesvood \[C. C.\] 187 F 898.

01. Where no evidence that liability of additional contracts was explained to client and that former contract for commencing was shown not to be binding, additional contracts did not operate to extend liability of client. Lynch v. McDon-ald \[Cal.\] 102 P 918. Where attorneys were

empowered to sell and prosecute client's oil rights, reserving half interest in proceeds, and succeeded in selling their client's interest, retaining their own with-out her knowledge, and otherwise concealed facts so that attorney's profits were largely in excess of client's, such sale was

prime facied fraudulent and placed burden of proof on attorneys to prove same legitiminate. Snow v. Haimesvood \[C. C. A.\] 157 F 898. Sale held fraudulent. Id. See, also, post, this section, subd. Dealings be-tween attorney and client.

74. On application by administrative for leave to compromise right of action for de-edent's wrongful death, where it appeared

that her attorney was employed by corpo * \[13\] Cur. Law. ATTORNEYS AND COUNSELORS SS 5. 383

_Dealings between attorney and client See 11 C. L. 340_ will be closely scrutinized "especially where property is acquired by the attorney," and, where the transaction is attacked the onus of proving no undue advantage rests on the attorney." The right, however, to attack a transaction as in violation of the trust relation between attorney and client, is personal to the client," and dealings obviously fair and just will be upheld even as against the client."

\_Accounting to client,_See 11 C. L. 340_--It is the duty of an attorney to notify his client within a reasonable time, of money collected," and to pay the same to the client " on demand." When intrusted with the money of his client, an attorney must be able to furnish an itemized statement of his expenditures if requested," and generally it is an attorney's duty, when discharged, to turn over all papers in his possession to his client." In some states special statutes penalize the fraudulent misapplication of money."

- \[14\] 80. Dyrenforth v. Palmer Pneumatic Tire
- \[15\] 100 Co., 240 Ill. 25, 88 NE 290; Beagles v. Tob-
- \[16\] 146. \[17\] 135 Mo. App. 306, 115 SWV 1042; Priest v. Dodworth
- \[18\] 147. \[19\] 121 NWV 418. Upon Co., 240 Ill. 25, 88 NE 290. Relation creates complaint of a client. Palmes' Adm's v. Howard \[15\] 112 SWV 1110.
- \[19\] 136. \[20\] 1376. \[21\] 138. \[22\] 139. \[23\] 1402. \[24\] 141. \[25\] 142. \[26\] 143. \[27\] 144. \[28\] 145. \[29\] 146. \[30\] 147. \[31\] 148. \[32\] 149. \[33\] 149. \[34\] 1402. \[35\] 141. \[36\] 149. \[37\] 141. \[38\] 142. \[39\] 143. \[30\] 144. \[31\] 145. \[32\] 146. \[33\] 147. \[34\] 148. \[35\] 149. \[36\] 149. \[37\] 1402. \[38\] 149. \[39\] 1403. \[39\] 141. \[30\] 141. \[31\] 142. \[32\] 143. \[33\] 144. \[34\] 145. \[35\] 146. \[36\] 147. \[37\] 148. \[38\] 149. \[39\] 149. \[40\] 149. \[41\] 1404. \[42\] 1405. \[43\] 141. \[44\] 142. \[45\] 143. \[46\] 144. \[47\] 145. \[48\] 146. \[49\] 147. \[49\] 148. \[40\] 149. \[41\] 149. \[42\] 149. \[43\] 149. \[44\] 1406. \[45\] 149. \[46\] 149. \[47\] 149. \[48\] 149. \[49\] 1407. \[49\] 141. \[49\] 142. \[49\] 143. \[49\] 144. \[49\] 145. \[49\] 146. \[49\] 147. \[49\] 148. \[40\] 149. \[41\] 149. \[42\] 149. \[43\] 149.

## 384 Attorneys and counselors $ 6

13 Cur. Law.

\_A client may compromise or dismiss.\_See 11 C. L. 841.\_The right of a client to compromise or settle a claim as affected by the attorney's claim for fees is treated in a subsequent section,\[91\] as is also the attorney's right to compromise or settle his client's claims.\[92\]

$ 6. _Remedies between the parties._\[93\]\_\_See 11 C. L. 842.\_In an action by a client against his attorney for negligence, the declaration or complaint must allege all the elements of the negligence charged,\[94\] the damage sustained,\[95\] and the connection between such negligence and such damage,\[96\] and the burden of proof upon the issues thus raised is upon the plaintiff.\[97\] Limitations as to actions for malpractice are sometimes held applicable to suits against attores.\[98\]

The summary power of the courts to control its officers \*\* may be exercised to compel an attorney to perform his duties to his client,\[91\] and in some states an attorney may be suspended for wrongfully withholding a client's money,\[92\] though it is sometimes held unusual and irregular for a creditor to appeal to a court in his own interest for the collection of a debt from an attorney.\[93\] Summary proceedings are inapplicable where the relation of attorney and client does not exist,\[94\] and the sub-

bld being less than the amount due her,

sub attorney was not authorized to deliver bill of sale to client being actually due to mortgage. Id.

90. Where no allegations of embezzlement or fraudulent misapplication of money, complaint did not bring action with that provided by Rev. Code CIV.

Proc. $ 157 subd. 2, against attorneys.

Jones v. Winsor (S. D.) 118 NPV 716. Action for excess compensation paid. Id.

91. See post, $ 7.

01. See post, $ 8.

01. Search Note: See note in 1 Ann. Cas.

01.

See, also, Attorney and Client, Cent. Dig. $ 264-391: Dec. Dig. $ 126-129; 4 Cyc. 969-97; 3 A. & E. Enc. P. & P. 104.

94. Long v. Bowersox, 8 Ohio N. P.

(N. S.) 249.

95. Under Civ. Code $ 3501, providing that no damages be recoverable for breach of contract which are not clearly ascertainable both in nature and origin, complaint in action against attorney for breach of contract of employment, stating that thereby litigation terminated unfavorably, was held not to state cause of action.

Iane v. Storke \[Coal. App.\] 101 P 897. In action against attorney for breach of contract of employment where no allegation of damage for attorney's failure to proceed with bankruptcy proceedings and no "detriment proximately caused" (Civ. Code $ 3000) by defend, complaint failed to state cause of action. Jd.

96. In an action for malpractice against attorney leader must allege (1) relation between parties; (2) pertinent facts which disclose derefiction of duty by defaulting party and support complaint of injury; (3) negligence with reference to such facts of character to suggest that injury may have favored the interruption; and (4) allegations of damages constituting proximate result of negligence alleged; and unless connecting between successive propositions and elements be apparent from statement of them, pleading must inform the court by additional avrenting how one element flows into another. That is, the nexus must be
    VOL. XIII. No. 3 CURRENT LAW, DECEMBER, 1909. 885

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

ATTORNEYS AND COUNSELORS--Cont'd.

pervisory power of the court will not be extended to review a voluntary payment by a client from n.neys in his possession to an attorney for services rendered.\*

SS 7. _Compensation and lien._\*-See 11 C. L. 448--Provisions in notes ' and mortgages * for stated attorney's fees, and their enforcement are elsewhere treated.

The compensation of an attorney is governed by the agreement, express or implied, with his client,\* and an attorney is as free to make contracts with clients as to compensation as are other individuals to make contracts generally; \[10\] and to the same extent an attorney is bound by whatever contract he makes, \[11\] but unconsionable bargains will not be enforced, \[12\] or those entered into through dures. \[18\] An attorney, moreover, will not be allowed to make use of the relation existing to extort an unreasonable contract for compensation, \[14\] and the presumption is against the .validity of such agreements, \[15\] the attorney having the burden of proving the fairness of the same. \[16\] Whether a particular agreement was entered into is usually a question of fact, \[17\] and so, also, the determination of whether an agreement has been modified or abrogated. \[18\] Where a contract is proved, the question of compensation becomes a matter of construction, \[19\] and, while an attorney may be entitled to compensation, in the nature of a trainer, beyond the value of services actually rendered, \[20\] he is not entitled to extra compensation for services within the lien re McIntosh, 112 NYS 513. Does not ex- of litigation so that compromise agreement to pay attorney's compensation could be said to have been entered into through dures or undue influence. Dyrenforth v. Palmer Pneumatic Tire Co., 240 Ill. 25, 88 NE 290.

**6.** Scarenk Notici See notes in 3 C. L. 182, 383, 5 Id. 327; 7 Id. 334, 385; 2 L. M. A. (N. S.) 261; 3 Id. 317; 5 Id. 380; 11 Id. 630; 14 Id. 1059; 1701; 15 Id. 729; 8 A. S. R. 168; 51 Id. 251; 55 Id. 438; 70; 178; 1 Ann. Cas. 299; 8 Id. 709; 9 Id. 625; 10 Id. 842.

See, also, Attorney and Client, Cent. Dig. 89 892-427; Dec. Dig. 81 130-192; 4 Cycle. 979-1023; 1023; 3 A. & H. Rinc. L. (Led.) 414, 447; 3 A A & E. Enc. P. & P. 104.

**7.** See Negotiable Instruments, **SS 2A**, 3A.

**8.** See Forceclosure of Mortgages on Land, **SS 6G**.

**9.** In re Shay, 118 NYS 146.

**10.** Mellow v. Fulton \[Okl.\] 98 P 911: Attorney being under no obligation to defend parties had right to exact terms upon which the was willing to undertake defense.

Hames v. Stroud \[Tex. Civ. App.\] 112 SWP 775.

**11.** Tong v. Orr \[Ind. App.\] 87 NE 147, 12. An unconsionable bargain is a fraud, such as no man In his senses and not under delusion would make on one hand, and such as no honest and fair man would accept on the other. Ball V. Reyburn \[Ml. App.\] 118 SWP 524. Written contract agreeing to pay attorney $500 in suit to enjoin lowering of street grade upon which client's property abutted not so unconsionable as to be set aside. Id. Where attorneys secured price of $394,750 for patents which company was willing to sell for $250,000; a fee of 10 per cent of pur- chase price was not so unconsionable as to be unforexable, though time consumed in sale was less than month. Dry-enforth v. Palmer Pneumatic Tire Co., 240 III. 25, 83 NE 290.

**13.** Letter held not to constitute threat 13 Curr. L. - 55.

**14.** Tong v. Orr \[Ind. App.\] 87 NE 147.

**15.** Agreement for compensation of an attorney made after litigation has been 'pending for years held v.oatable as being constructively fraudulent. Boyle v. Read3, 138 III. 158.

**16.** Attorney has burden of proving fairness of contract, adequacy of consideration and that no undue advantage was taken.

Boyle v. Read, 138 Ill. App., 153.

**17.** Finding of agreement by client to pay reasonable value of attorney's services held sustained by evidence. In re Nethaway \[Minn.\] 121 NWP 418. Where there was no express agreement to pay retainer and services actually performed had been paffd for, a finding of implied agreement to pay such retainer was properly strictken as unsupported by evidence. Buckles v. North-east Kansas Tel terms of his contract.21 Where the discharge of an attorney is without cause or where both parties are responsible for a condition of affairs rendering it absolutely necessary in the interests of business that the attorney be discharged, the attorney may recover for the services already performed under his contract.22 A dispute between the'client and the attorney may be compromised, subject to the principles applicable to contracts generally.28 The compensation paid by a corporation at different times when the services of an attorney are required is not in a proper sense a salary,21 but, under an order of court appointing a receiver, attoreys have been held employes of a railroad and entitled to the preference provided in such order over claims of mortgage bondholders.25 In some states an attorney employed by a wife in a divorce action may hold the husband liable for the reasonable value of his services.26 In some states an attorney cannot be required to act, without compensation, as counsel for indigent defendants in criminal cases,27 but in other states it is held otherwise.28 The compensation of public attorneys is considered in a subsequent section.29_Contingent fees.28_See 11 C. L. 846 The modern tendency is to restrict the doctrine of champerty and maintenance in its application to contracts for contingent fees, such contracts generally being held valid,30 and sometimes being expressly authorized by statute.31 An administrator may be authorized to contract for the collection of a doubtful claim against the government on a contingent fee basis,32 providing the compensation be reasonable,33 and part owners of such a claim may, by their conduct, be estopped to complain of the contract.34 A stipulation in a contingent fee contract, restricting the client's right to compromise the claim, is not necessarily invalid,35 and even if held invalid it will not necessarily vitiate the rest of the contract.36 Under a valid contingent fee contract, the attorney has an abilmseif by implied agreement from accept- 26 Rev. St. 1899, $ 2926 (Ann. St. 1906, p.ing employment from other persons whose 1683). Hamilton v. Sallibury, 133 Mo. App. interests are antagonistic to those of his 718, 111 $W 563. Demand only microfule client. Mellen v. Fulton \[OKL.\] 98 P 911.

23. Services of attorney for railroad were 27. Such is rule in Indiana. Clay County of nature so similar to regular duties that Com'rs v. McGregor \[Ind.\] 87 NE 1.

such attorney could not in absence of ex-press contract recover for same, in addition to his regular salary. Willard v. Pennsylvania Co., 140 Ill. App. 306. An attorney employed to do all that is necessary to perfect appeals is not entitled to extra compensation for signing appeal bonds as surely. Id.

22. Price v. Western Loan & Sav. Co. \[Utah\] 100 P 677. Discharge conditioned on payment or security for payment. Schouwiler v. Allen \[N. D.\] 117 NV 866; In re Robbins, 61 Misc. 114, 112 NYS 1032. Right to change attorneys can be exercised only upon payment to the attorney of the amount due him. Lederer v. Goldston, 63 Misc. 312. 117 NYS 151.

01. Letter of acceptance held sufficient signing of compromise agreement to pay attorney's compensation, within statute of frauds. Dyneroth v. Palmer Pneumatic Tire Co., 240 Ill. 25, $ NE 290. Contract held taken out of statute under principle of part performance. Id.

01. Salary is fixed sum to be paid by year or periodically, for services. Rebadow v. Buffalo Sav. Bank, $ 33. Mic. 407, 117 NYS 212.

01. Where order provided for payment of current debts to operators and employees, attorneys were within such term though paid by fees. Seaboard Air Line R. Co. v. Continental Trust Co., 166 F 597.

13 Cur. Law. **ATTORNEYS AND COUNSELORS SS 7**.

solute right to his proportion of the demand,\[47\] provided the claim is collected \[48\] and not abandoned,\[49\] that is, provided he has fully performed his contract,\[49\] and, when the client settles the claim without the attorney's consent, the attorney may collect the full amount of his fee,\[41\] but a defendant, having notice of an attorney's rights, who pays the judgment rendered to the clerk of court with the attorney's consent, cannot be held liable for the fee,\[49\] and payment of the judgment to the attorney's agents who have an interest in the fees is binding on the attorney.\[49\] A defendant who has rendered himself liable to the attorney by settlement in disregard of the attorney's contingent interest cannot, however, depend on the ground of fraud between the attorney and his client.\[49\] A client cannot be held liable for a contingent fee on the ground that his conduct caused the loss of the suit, unless it appears that the suit would not otherwise have been lost.\[49\] The amount to which the attorney is entitled of the contract depends upon the terms.\[49\] A client attacking a contingent fee contract on the ground that his signature was procured by unfair methods has the burden of proving such allegations.\[47\]

\_Quantum merit.\_See 11 C. L. \[49\]--An express contract fixing the amount of fees precludes any question as a quantum merit,\[49\] unless the express contract is superseded by an implied one.\[49\] In the absence of express contract, an attorney is entitled to what his services are reasonably worth \[49\] as upon an implied contract.\[51\]

promise held separable. Beagles v. Robert- \[15\] \[16\] \[17\] \[18\] \[19\] \[20\] \[21\] \[22\] \[23\] \[24\] \[25\] \[26\] \[27\] \[28\] \[29\] \[30\] \[31\] \[32\] \[33\] \[34\] \[35\] \[36\] \[37\] \[38\] \[39\] \[40\] \[41\] \[42\] \[43\] \[44\] \[45\] \[46\] \[47\] \[48\] \[49\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[60\] \[61\] \[62\] \[63\] \[64\] \[65\] \[66\] \[67\] \[68\] \[69\] \[70\] \[71\] \[72\] \[73\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[80\] \[81\] \[82\] \[83\] \[84\] \[85\] \[86\] \[87\] \[88\] \[89\] \[90\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[93\] \[95\] \[91\] \[94\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] 388 ATTORNEYS AND COUNSELORS $ 7. 13 Cur. Law.

\_Allowance of fees by court or taxation as costs.\_See 11 C. L. 846.\_The allowance of attorney's fees as costs is treated elsewhere,${}^{$}$ as is also the allowance of such fees as damages ${}^{$}$ and in particular actions or proceedings,${}^{$}$ or as constituting a part of a penalty.${}^{$}$ The court may withhold the compensation allowed an attorney until he has fully performed his duties in connection with the case.${}^{$}$ Generally an attorney who acts for himself is not entitled to a counsel fee against his adversary.${}^{$}$ The value of services rendered may be fixed by the court on substitution of attorneys.${}^{$}$

\_The amount of allowance by court.\_See 11 C. L. 847.\_The amount allowed should be reasonable,${}^{$}$ and in this connection an agreement between the parties may be considered,${}^{$}$ but is not conclusive.${}^{$}$ Allowances will not be disturbed on appeal where they are purely discretionary ${}^{$}$ or where the value of the services is purely a question of fact.${}^{$}$

\_Proceedings to recover.\_See 11 C. L. 848.\_The statute of limitations does not run against an attorney's claim for services until the action or suit in which he is employed has terminated.${}^{$}$ Action for services may be maintained by the individual member of a firm where the employment is individual,${}^{$}$ but where the services constitutes firm business, though performed by individual members, the firm is the property to use for the compensation therefor.${}^{$}$ Recovery for services renstances as would imply performance with $\\tt$ attorney's fee. Baldwin v. Peyton, 135 Mo. assert and request of client wherefore she $\\tt$ App. 492, 116 SW 27: /sa bound to pay reasonable value for 6L When amount agreed on is excessive, same. Niederre v. Gridley, 143 Ill. App. 88. 14 may be reduced by court. Baldwin v. 52. Sec Costs, $ 8. 153 Mo. App. 492, 116 SW 27. Part-53. See Dammages, $ 2. 153 may agree with their attorneys as to 54. See Foreclosure of Mortgrages on 6L, $ 6G; Receivers, $ 4B, 4D; Listaries 7 of Decedents, $ 10D; Wille, $ 4L; Mechanics's 8. 16. Where a jurisdiction is 9D; Partition, $ 3. See, also, Alimony; Eminent Domain, $ 17; Bankruptcy, $ 14E. 17. 18. 19. 20. 21. 22. 23. 24. 25. For obstructing highways, see Highways and Streets, $ 16; for maintaining a nuisance, see Noisance, $ 4B, and see, also, $ 6L. 20. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. In claim before court of claims in favor of Indians where lands have been $\\tt$ creded to government, a portion of attorney ree, allowed by court, may be withheld until services of attorneys subsequent to judgment shall have been rendered. Ottawa and Chippewa Indians of Michigan v. U. S., 42 Ct. C1. 618. 45. 37. 38. 39. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 31. 33. 34. 35. 37. 39. 32. 34. 36. 38. 39. 32. 34. 37. 39. 33. 35. 38. 39. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 39. 39. 39. 39. 39. 39. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 49. 41. 43. 45. 47. 49. 42. 45. 48. 49. 43. 46. 49. 44. 47. 48. 49. 45. 49. 46. 47. 49. 48. 49. 49.

dered may be dependent upon an accounting by the attorney of the sums disbursed in connection with the employment." A dismissal rendered necessary by the conduct of the attorney is a complete defense to an action for services," but where a client has received the benefit of an attorney's services he cannot escape liability therefor on the ground that the contract of employment was invalid."

A showing of the services rendered in connection with actions need not itemize each separate charge in preparing such actions for trial." Where a bill seeks not only to establish liability for attorney's services but also to fix a lien therefor, a demurrer to the entire bill cannot be sustained where it points out objections to the lien only." In actions for attorney's fees, the usual rules of evidence apply as to relevancy and materiality," and as to the admissibility of admissions and declarations." Questions of fact should be submitted to the jury " under proper instructions," unless the evidence is without conflict." An attorney who accepts to practice law, and firm is entitled to --terial, not being inconsistent with intention to pay for services rendered. Id. members, firm would be real party in interest and might maintain action in firm name for services performed by firm or any of its members. Thorp v. Ramsey, 51 Wash. --G30, 99 P 584. --G7. Where attorney was employed by general counsel of corporation to aid in secureing franchises, he was entitled to adequate compensation for the valuable services rendered, but recovery could only be allowed after accounting of large sums disbursed. Pallace v. Niagara, Lockport & Ontario Power Co., 131 App. Div. 453, 115 NYS 240. --G8. Action on quantum merruit. Douglass v. Downend, 11 Ohio C. C. (N. S.) 890. --G9. Payment of attorney's compensation can not be avoided by corporation by pleading the invalidity of the contract of employment. Rebadov v. Buffalo Sav. Bank, 63 Misc. 407, 117 NYS 282. Offers of corporation estopped to set up that employment was ultra vires. Wyate v. Red Cross Protective Soc., 166 F 872. --G7. Motion directed against bill of particulars requiring itemizing of claim by making separate charge for each step in preparation for trial and trial of actions properly denied. Thorp v. Ramsey, 51 Wash. 530, 99 P 584. --T1. Leanart v. Deedmeyer \[Ala.\] 48 S 371. --T2. In action to recover fees from client who settled judgment in disregard of attorney's contingent right to portion of amount recovered, evidence of real value of property taken in settlement was immaterial. Coker v. Oliver, 4 Ga. App. 728, 62 SE 483. In action for fee for procuring certain land for client, where fee was contingent on such procurement, and land was awarded to third person, evidence of quit-claim dead by client executed as compromise to occupant for damages sustained by being deprived of land in sequestration proceedings was inadmissible. Shaw v. Threadfill (Tex. City. App.) 115 NW 617. --Letters offered to contradict contract to pay for legal services held incompetent and immaterial, since they showed no intention not to pay for services. Tiffany v. Morgan \[R. I.\] 73 A 465. Evidence offered to contradict contract to pay for legal services, to effect that client made his headquarters at attorney's office, was immaterial.

a contract signed by a president of a corporation as officer and stockholder could not complain that no personal judgment is rendered thereon." Where a defendant fails to appeal from the granting of a motion to permit an attorney to continue an action to determine his fee, after settlement of the case, he waives his right to question th attorney's remedy."

Evidence as to value of services.See \[11\] C. L. \[84\]--In determining the reasonableness of a fee, it is proper to consider the benefit received by the client," the authority of the attorney to render the service," the client's statement of the terms of employment," the records and files in the cause," the nature and extent of business in connection with which the charge was made," and the opinions of other attorneys," and the court may also make use of its own knowledge of the subject." It has been held not error to allow the jury to examine account books used by an attorney to refresh his memory while testifying."

Lien,See \[11\] C. L. \[84\]--An attorney may by his contract of employment reserve a line for his services," but aside from contractual rights, an attorney generally has a line upon the papers and property of his client in his hands, for the legal fees earned." This line is often specifically provided for by statute," but such statutes usually substantially re-enact and provide for the attorney's line as it existed at common law," and statutes merely provide security for the attorney's fee," without otherwise affecting the client's right to contract with reference to his cause of action." The applicability of line statutes is, of course, a question of

to jury. Ottofy v. Winsor \[Mo. App.\] \[11\] \[85\]. Value of services in procuring dissolution of injunction. Chicago Wire Chair Co. v. Kennedy & Wright Co., 141 Ill. App. \[19\].

authorized to act for it. Lynch v. McDonald \[Coa.\] \[102 P 918\].

86. Graham v. Dillon \[Iowa\] 121 NVV 47.

01. Where lease is assigned with power to collect rents, the assignee may contract to give line to attorney for services in using for rents. Jackson v. Erkins. \[116\] NYS 385. Where under assignment of rendered by third person to assist plaintiff were authorized and that plaintiff was entitled to money expended for same. MacDonald v. Johnks, 115 NYS 695.

01. Evidence of client's casual statement to another attorney of terms of employment of plaintiff attorney held admissible, not being a privileged communication, or to be excluded because of public policy. Coker v. Oliver, 4 Ga. App. 728, 62 SE 483.

82, Competent whether attorney was solo attorney in cause or not. Thorp v. Ramsey, 61 NHash. 530, 99 P 584.

83. Where attorney had charge for services rendered defendant as receiver. Graham v. Dillon \[Iowa\] 121 NVV 47.

01. Attoreneys are competent witnesses to value of services of an attorney when they appear to possess knowledge of usual compensation paid for services at time and place rendered. State v. Flarsheim \[Mo. App.\] \[118\] N7. The testimony of attorneys as to the value of services rendered is competent, but not conclusive. Graham v. Dillon \[Iowa\] 121 NVV 47. Evidence by one attorney as to reasonable value of his personal or individual services held proper where services by both plaintiffs were intermingled. Thorp v. Ramsey, 51 VWash. 530, 99 P 584. In action for cancellation of insurance policy, attorneys' fees, etc. opinion evidence of reasonable value of attorney's services held admissible. Mutual Life Ins. Co. v. Chamblias, 131 Ga. 60, 61 SE 1034.

construction."23 The statutory lien has been held inapplicable where attorneys sue for a poor person,"44 or where an attorney for a taxpayer recovers funds illegally appropriated by a county."55 In some states an attorney has a lien upon a judgment or deeree for his services rendered in obtaining the same,"6 while in other states such a lien can be predicated only upon fees and disbursements taxable in the case."7 Unless otherwise provided by statute, such a lien does not attach until the judgment is rendered."89 Only the attorney who appears for the party can assert the statutory lien to the proceeds of the proceedings,"89 and the lien attaches only to the proceeds obtained in the particular proceeding." Notice is usually requisite in order to fix an attorney's lien,2 though this requirement may be waived.3 The lien may attach to a fund created by the attorney's services,4 or to a fund created by a settlement,5 payment after actual or constructive notice of the lien being at the payor's peril." An attorney's lien is superior to the rights of the parties to set off judgments recovered by them respectively against each other."

93. Statutory arbitrations provided by Civ. Proc. $ 66, not entitled to lien on sub-Code Civ. Proc. $ 17, are special proceed- against report on different condemnation rings within $ 66 providing for attorney's lien. Werbb v. Parker, 130 App. Div. 92, 112 NYS 1032.

114 NYS 489.

94. Provisions of New York Code Civ. Proc. $ 66, for protection of attorneys not available where personal injury action in admiralty was in forma pauperis. (Act Feb. 25, 1901; Acts 1901, p. 46) as to OT'Icharety v. Hamburg-American Packet Co., 168 F 411. An attorney of one who is using as a poor person, especially in a personal injury case, is not entitled to the $ 995, as amended by Acts 1903, p. 116; same protection as in ordinary cases. Id.

01. An attorney of a taxpayer who institutes a suit on behalf of all taxpayers of a county, and receives money illegally appropriated, can not assert a lien thereon for his services and recover judgment against the county. Marion County v. Rives \[Ky.\] 118 SW 309. Attency must look to taxpayers for his compensation. Id. St. 1909, $ 489 (Russell's St. $ 1806), as to payment of fees from fund before distribu- tion of estate, property held in joint tenancy, coplacenary, etc., held inapplicable as money recovered went into county treas- ury and only incidentally benefited taxpayers. Id.

01. Fuller v. Clemmons \[Ala.\] 48 S 101.

01. Does not extend to general claim for compensation. Tyler v. Superior Ct. \[R. L\] 73 A 467.

01. Not until entry of judgment. Tyler v. Superior Ct. \[R. L\] 73 A 467. Under St. 1894. $ 6194, subd. 3, whereby attorney had no lien on cause of action where damages were manipulated, until judgment was entered, fact that verdict was rendered held to entitle attorney to lien. In re Nethaway \[Minn.\] I 121 NVP 418.

01. Proceeds of report in condemnation proceedings. In re Robbins, 61 Misc. 114, 112 NYS 1032. Defendants' contention that judgment ought not to be restrained because it appeared from answer that certain attorneys had lien on judgment held without merit, since lien must be asserted by attorneys themselves. Kaufman v. Cooper \[Mont.\] 101 F 895.

01. Where attorney was employed to represent client in condemnation proceedings designated in retainer, which was special proceeding, statutory lien attached only to proceeds of report in such proceeding. Code
    Loss of lienSee 11 C. L. 851.--Under statutory provisions a release of the lien may be secured by the execution of a bond,\* but otherwise an attorney can not be deprived of his lien by a summary order of the court.\* Intention, actual or constructive, is an essential element of a waiver of a lien.10 A principal attorney can not enforce his lien for a portion of a settlement which has been paid to his authorized agents,11 but a principal attorney's lien is not defeated by the receipt of the amount of the decree for distribution by associate counsel also having a lien.12

\_Enforcement of lienSee 11 C. L. 851.--Statutes sometimes permit the adjustment of a lien upon the abstract controversy upon summary application,12 but in general no court may attempt the adjustment of an ordinary common-law lien or take from lienor his qualified property in chattels without an action.14 An attorney's lien may be enforced by a suit in equity the same as other liens,15 and from the

Packet Co., 168 F 411. Settlement agreement by parties undertaking to limit attorney's fee was not binding as to attorney, he not being party to same, and having a notified defendant of lien. Boyd v. Chasst Mercantile Co., 135 Mo. App. 115, 115 SV 1052. Where after reference, order fixed amount of lien, both at common law and by lienor. Proc. 166, attorneys had lien on judgment secured by their efforts, which was unaffected by settlement between parties. Kniekerbocker Inv. Co. v. Voorhees, 128 App. Div. 639, 112 NYS 842. Where sum due remained unpaid, attorneys were entitled to have cancellation and satisfaction of judgment vacated, so as to allow enforcement of judgment to satisfy lien. Id. Vacation of cancellation of undertaking to obtain temporary injunction was properly refused where attorneys had no interest in enforcement of undertaking, and had no lien for service rendered. Id. On settlement of judgment by parties without notice to attorneys who recovered same, order cancelling undertaking for costs on appeal should be vacated. Id. Undertaking was given to stay execution of judgment, without which attorney might have collected judgment and order canceling same did not show consent of attorneys to cancellation. Id. Where attorney notified defendant in action of his contract en-tilting him to 35 per cent of cause of action, pursuant to Laws 1901, 46, as to attorneys' lien, defendants' agreement, in settlement entered into, to pay plaintiff whatever they might be required to pay attorney, could not affect such attorney's right to recover. Boyd v. Chase Mercantile Co., 135 Mo. App. 115, 115 SW 1052.

7. Set-off will destroy judgment to which lien is attached. Webb v. Parker, 130 App. Div. 92, 114 NYS 489. Attorneys' lien status (Laws 1901, p. 46; Ann. St. 1906, SS 4937--1, 2) give attorney lien which, when properly presented, is superior to defendants' right to set off demand wholly unrelated to matter out of which sprung client's cause. State v. U. S. Fidelity & Guar. Co., 135 Mo. App. 160, 115 SWV 1081. Where cause and set-off are related to same matter, lien only attaches to surplus adjudged plaintiff. Id.

& Statutory bond, sufficient and regular, operates as matter of law to release lien. Jamison v. Ranck \[IowaJ 119 NNV 76. Under Code, $ 322, persons interested may secure release attorneys' lien by execu- very nature of the proceeding a jury trial cannot be demanded as of right," but where an attorney's lien is released by a statutory bond and his claim becomes an ordinary demand for compensation, in no way calling for exercise of equity powers, an attorney is entitled to a jury trial.17 Where a fund secured by a decree is paid into the registry of the court, the more orderly procedure by an attorney to enforce his lien is by petition to the chancellor instead of an original bill,18 but, where the fund is shown to be in the hands of associate attorneys for distribution, a bill in equity is proper.19 A bill to enforce the lien need not be filed at the term of court at which the original decree is rendered, there being no purpose to alter or disturb that decree.20 In order to establish his right to a lien, the attorney must bring himself within the terms of the statute,21 and show that he has fully performed the services as agreed upon.22 In seeking to establish his lien as against a purchaser, an attorney has the burden of proving that defendant purchased the property with notice of his lien.23 Where an arbitration agreement provides for a set-off of the awards secured, and an attorney had a lien on the award secured for his client, it is his duty to resort to his client in the first instance for his compensation.24 The question of amount may be submitted to a referee,25 or, when not disputed, the court may find the value of services from facts before it.26 The expenses of a suit, where the establishment of an attorney's lien is merely ancillary, are properly chargeable to the client.27 A liquidated claim for compensation can not be enlarged by adding interest.28

The right of an attorney as such to have an execution issued on the judgment ceases when he ceases to represent the judgment creditor, even though he holds an assignment of the judgment,29 his remedies in the latter case being only such as are available to an assignee of the judgment.29

SS 8. _Authority of attorney to represent client. Creation, proof, and terminate_

ices rendered had been settled and dis-

from funds secured from estate, created missed. Id. Whether attorney be re-

lined on such funds. Ingersoll v. Coram, garded as equitable assignee of judgment

211 U. S. 335, 53 Law. Ed. 208. Evidence to extent of compensation for recovering

held to show performance of contract to same, or as equitable owner to extent of

defeat will, where suit was compromised his lien, of the amount evidenced by the

and more property was received by con-
judgment, in either case judgment creditor

testants than would have come by in-

is trustee of attorney to that extent and

heritance. Id. Proof insufficient to show

equity is the proper forum in which to enforce

storey's lien. Dent v. Pickens \[V. Va.\]

force the lien. Brown v. Morgan, 163 F

85. Possibly relief could be given in

more summary manner, but this is no objection to suit in equity where rights of

all parties may be fully protected. Id.

16. No abuse of discretion where trial

court changed its mind and tried case it-

self, though same had been submitted to

he can enforce lien on award. Webb v.

Jury. In re Nethaway \[Minn.\] 121 NWV 418.

17. Jamison v. Ranck \[Minn.\] 119 NWV 718.

25, 26. In re Nethaway \[Minn.\] 118 XYS 525.

No waiver of jury trial. Id.

18. Fuller v. Clemmons \[Ala.\] 48 S 101.

01. Where existence of lien is admitted,

and fund representing decree is in hands

of associate attorneys "for proper distr-

the attorney's lien which was made certain,

bution subject to lien," such facts considered with other averments are sufficient to

to lien of creditor's mortgage, and expenses

import equity to bill. Fuller v. Clemmons \[Ala.\] 48 S 101.

20. Fuller v. Clemmons \[Ala.\] 48 S 101.

01. Held within statute. Boyle v. Metro-

pollitan St. R. Co., 134 Mo. App. 71, 114 SWV 558.

22. Agreement to pay certain fee for

services in will contest, contingent upon

succes, but excepting personal liability of

one signer and stipulating that fee be paid

13 Cur. Law. ATTORNEYS AND COUNSELORS SS 8. 393

very nature of the proceeding a jury trial cannot be demanded as of right,19 but

where an attorney's lien is released by a statutory bond and his claim becomes an ordinary demand for compensation, in no way calling for exercise of equity powers, an attorney is entitled to a jury trial.17 Where a fund secured by a decree is paid

into the registry of the court, the more orderly procedure by an attorney to enforce his lien is by petition to the chancellor instead of an original bill,18 but, where the fund is shown to be in the hands of associate attorneys for distribution, a bill in equity is proper.19 A bill to enforce the lien need not be filed at the term of court at which the original decree is rendered, there being no purpose to alter or disturb that decree.20 In order to establish his right to a lien, the attorney must bring himself within the terms of the statute,21 and show that he has fully performed the services as agreed upon.22 In seeking to establish his lien as against a purchaser, an attorney has the burden of proving that defendant purchased the property with notice of his lien.23 Where an arbitration agreement provides for a set-off of the awards secured, and an attorney had a lien on the award secured for his client, it is his duty to resort to his client in the first instance for his compensation.24 The question of amount may be submitted to a referee,25 or, when not disputed, the court may find the value

### 394 Attorneys and Counsselors & 8.

13 Cur. Law.

_tion of authority._\[31\]\_\_See 11 C. L. 852\_\_Except in cases prescribed by statutes,_\[32\]_ the presumption is generally indulged that the appearance of an attorney is authorized,_\[33\]_ though an attorney may be required to exhibit his authority when it is seriously challenged._\[34\]_ An attorney is also prima facie presumed to be acting in a representative capacity when he takes any steps in a case in which he has appeared as an attorney._\[35\]_ An attack upon the authority of an attorney should ordinarily be by motion, in order that the matter may be determined by the presiding judge and not mingled with the merits of the case._\[36\]_ Where the mode of attack is prescribed by statute, it must be followed._\[37\]_ When necessary, a plaintiff may call defendant's attorney as his own witness to prove that such attorney acted in that capacity at a certain time._\[38\]_

_Scope of authority._\[86\]\_ _C. L. 853\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]\_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases._\[40\]_ The authority delegated may be determined from the evidence,_\[41\]_ but a client's liability can not be extended by\_

### 395 Search Note: See notes in 7 C. L. 337,

_396_: 11 C. L. 852\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases._\[40\]_ The authority delegated may be determined from the evidence,_\[41\]_ but a client's liability can not be extended by\_

### 396 Search Note: See notes in 7 C. L. 337,

_397_: 11 C. L. 853\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases._\[40\]_ The authority delegated may be determined from the evidence,_\[41\]_ but a client's liability can not be extended by\_

### 397 Search Note: See notes in 7 C. L. 337,

_398_: 11 C. L. 853\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases._\[40\]_ The authority delegated may be determined from the evidence,_\[41\]_ but a client's liability can not be extended by\_

### 398 Search Note: See notes in 7 C. L. 337,

_399_: 11 C. L. 853\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases._\[40\]_ The authority delegated may be determined from the evidence,_\[41\]_ but a client's liability can not be extended by\_

### 399 Search Note: See notes in 7 C. L. 337,

_399_: 11 C. L. 853\_\_The powers of an attorney are determined in a large measure by the purpose of his employment,_\[39\]_ and he has implied authority to do anything necessarily incidental to the discharge of the purpose for which he was retained, but beyond this his power ceases.

the unauthorized statements of his attorney,\[42\] and a person suing for services rendered at the instance of an attorney has the burden of establishing the client's liability.\[43\] Usually, an attorney cannot without express authority compromise or release a claim of his client,\[44\] and a compromise agreement executed in excess of an attorney's power is nugatory.\[45\] Where, however, the attorney is specially authorized to compromise, his acts, if within such authority, will bind his client,\[46\] and in some states, such agreements are authorized by statute.\[47\] An attorney is not authorized to make a contract on his client's behalf which is illegal or void as against public policy.\[48\] .

Generally the knowledge of the attorney is imputable to his client,\[49\] and no-be only $1 per page, but admonition to 45. Where adminstratrix had been appointed with no power to compromise suit that best terms possible be secured. Id. Evidence held to support finding that empliyng upon attorney's affidavit of authority payment of attorney was general. Mellon v. Fulton \[Okl.\] 98 P 911. Stipulation as to redemption of property from tax sale pending suit to establish equitable mortgage held authorized under evidence, Teich v. San Jose Safe Deposit Bank, 8 Cal. App. 397, 97 P 167.

Evidence held insufficient: Evidence held by the tice to an attorney is binding upon his client.\[50\] Likewise the knowledge of the client is attributable to the solicitor.\[51\] Where there are a number of clients, the attorney must be the agent of all to bind all.\[82\]

An attorney generally has power, without express authority, to do all acts necessary or incidental to the prosecution or management of the suit which affect the remedy as distinguished from the cause of action,\[53\] and concessions of attorneys of record bind their clients in all matters relating to the trial and progress of the cause,\[54\] and so, also, the neglect of the attorney is the neglect of the client in matters pertaining to the conduct of the case.\[55\] Statutes sometimes specifically authorize an attorney to bind his client in any of the proceedings of an action,\[56\] and under such statutes an attorney under general retainer may appear or admit v. Johnston, 142 Ill. App. 634. Knowledge of attorney of withdrawal of member of partnership not chargeable to plaintiff where attorney was not their agent for that purpose, though occupying position of general counsel. Victor v. Spaiding, 202 Mass. 234, 88 NE 846.

Instruction as to knowledge of attorney being knowledge of client, whether acting within scope of authority or not held misleading. Lanum v. Patterson, 143 Ill. App. 244.

50. Notice to attorney held sufficient in absence of disclaimer of relationship. Duff v. Combs \[Ky.\] 117 SW 259. Notice to general counsel of corroboration as to matter in which he is authorised to act for employer is notice to latter. Vogemann v. American Doek & Trust Co., 131 App. Div. 216, 115 NYS 741. Where corporation admitted that its attorney was general counsel, it should have proved, if such was fact, that much attorney had no authority to receive notice in its behalf. Id. Notice of suit. Id. Where attorney represented defendants by consent and had authority to give or receive notice of entry of judgment, notice to such attorney was notice to defendants. Emerson v. McDonnell, 137 Wis. 263, 118 NW 814. Notice to an attorney employed in a particular litigation held not notice to client of matters not pertaining to that litigation. Vogemann v. American Doek & Trust Co., 131 App. Div. 216, 115 NYS 741. Where action absolutely ended by entry of order of dismissal, client was not bound by person who acted as attorney in receiving notice of subsequent proceedings. Wavrzyniakowski v. Hoffmann & Billings Mfg. Co., 137 Wis. 629, 119 NNV 350. Where authority of attorney cannot survive entry of order of dismissal except for purposes of order, i. e., to receive notice of entry, notice of second wholly unauthorised order and judgment to such attorney would be received when he was without authority to represent client, and hence would not be notice to such client. Id.

01. Knowledge of client in partition proceedings would be, in law, knowledge upon part of her solicitor. McNemar v. McNemar, 143 Ill. App. 134.

01. In suit to set aside judgments of produce court establishing claims against estate of decedent as obtained by fraud, attorney for one claimant, and for administrator, will not be presumed to be attorney for other claimants, so that by such attorney's advice such claims were fraudu- service of process whereby the jurisdiction of the person of his client is conferred.\[67\] In New York the court may compel an attorney to disclose his client's address when such information is essential to the progress of the case,\[68\] such power ceasing, however, upon the termination of the attorney's professional relationship with his client.\[69\] It is held that an attorney has no power, merely by virtue of his retainer the trial court,\[60\] or because of his lien,\[61\] to appeal an action in his client's name.

Unauthorized acts of an attorney may be ratified,\[62\] and such a ratification releases the attorney for liability for exceeding his powers.\[63\]

SS 9. _Rights and liabilities to third persons.\[64\] See 11 C. L. 854_--Where an attorney in good faith secures the allowance of a claim for his client out of a fund or appropriation, he will not be personally liable if the claim as allowed is greater than his client is entitled to, even though such excess is due to the client's fraud.\[65\] An attorney's liability for assistance furnished him by a third party depends upon the terms of the contract of the parties,\[66\] as construed in the light of the acts of the parties\[67\] and of existing statutes.\[68\]

**57.** Under B. & C. Comp. $ 1058, attorney under general retainer may admit in written under general retainer may admit in written under plaintiff's judgment, attor-of person of client is conferred. Mutno-mash Lumber & Box Co. v. Weston Basket & Barrel Co. \[Or\]. 98 P 1046. Under B. & C. Comp. $ 63, voluntary appearance by duly appointed attorneys of foreign corporation is equivalent to personal service. Mutno-mash Lumber & Box Co. V. Weston Basket & Barrel Co. \[Or\]. 102 P L. 85, In re Malcom, 129 App. Div. 226, 113 NYX 656. Attorneys should be required to disclose address of clients when object in 283, 118 NYN 814. Settlement by attorney, seeking information is in connection with if unauthorized, was ratified by suit for pending litigation. O'Connor v. O'Connor, 62 Misc. 53, 115 NYX 965. Examination of attorney to discover adJres of client is ex-amination as witness, and in such case atton of settlement made in his behalf, and torney is subject to same punishment as other witnesses, for contrancy. In re Malcom, 129 App. Div. 226, 112 NYX 665. Exvanescent reference to examine attorney as witness concerning address of certain persons, who were proved not to have been assistant attorney rendered after appeal his clients, cannot be charged to attorney. Id. Where attorney had previously appeared for certain parties, and deposition was ordered to procure addresses of such clients, they being necessary parties to action, evasive attitude of such attorney and attitude of regarding information as privileged justified charge of costs of reference. In re Malcom, 60 Misc. 224, 113 NYX 255. Where relationship discontinued attorney cannot be compelled to disclose late client's address to enable pursuit with new proceedings. In re Malcom, 129 App. Div. 226, 113 NYX 666; Levy v. Coy, Hunt & Co., 117 NYX 949. Not authorized to appeal to reverse judgment and to bind client for payment for transcribing evidence to be used on review. Tobler v. Nevitt \[Co\]. 100 P 416. Where no appeal by clients in action involving construction of testamentary trust, counsel for executors had no right to appar and be heard against such decree. Fitchie v. Brown, 211 U. S. 821, 58 Law, Ed. 202.

**SS 10.**_Law partnerships and associations._**60.**\_See 11 C. L. 854.\_The dissolution of a law partnership may be rendered necessary when a member is unable to devote the time to the business which the partnership agreement requires.\_70_Ordinarily, the dissolution of a law partnership has reference only to new business.\_71_SS 11.**\_Public attorneys. A. Attorneys General.\_72.**\_See 11 C. L. 855.\_In the exercise of his common-law powers as the chief law officer of the state,\_73_an attorney general may institute proceedings to enjoin nuisances where the interest of the state demands it,\_74 \_or advise the state's prosecuting attorney,\_75 \_and usually the attorney general has the management and control of a civil litigation of the state,\_76 \_though his power in this regard may be limited by statute.\_77 \_The attorney general is usually the proper relator in quo warranto proceedings,\_78 _and it has been_

by administrator after attorney's death, where accounting has been treated by both parties as covering whole period. Earle v. They be reason for applying a different rule of _Myeres, 207 U. S. 244, 52 Law. Ed. 181._

\_68._Agreement of attorney for Indians for associate counsel to prosecute claims This dictum is cited with approval in Littens against government construed in light of _e._ Caldwell, 101 Caldwell, 558, 36 P 107, 40 existing statutes and held to render principal attorney liable for $10,000 unless _Neb._ (Unof.) 496, 92 NNV 167 although the fees should have to be collected under extensive legislation in which case the associal- as pointed out in Justice v. Larry, 19 Ind. ates would have to look out for them- _App._ 272, 49 NE 459, 65 Am. St. Rep. 405._

_Ne compensation other than the contract Fees having been allowed in full under a set of congress associates held entitled to_

_410,000 from principal attorney. Id._

\_69._Search Note: See Attorney and Client._

_Cent. Dig._ $ 43; Dec. Dig.\_ $ 30; 4 Cyc.\_ 925; 3 A. & E, 226.\_ (2ed.) 473.\_

\_70.\_Where partnership agreement contemplated that defend should devote substantially all of his time and energy to law business, on defendants' election to enforce justice of peace requiring services every week day in year, plaintiff was just- _ified in terminating partnership._

_Stiles v._ _Bradley, 117 NYS 637. Plaintiff by consenting to election and going on official bond was not estopped to terminate relation. Id._

\_T1._Felt v. Mitchell \[Ind. App.\] 88 NE 723._

\_T2._Offee of attorney general existed at relation of partners to their clients and clients may look to either or both for performance of duties growing out of relation of attorney and client. Id. Option to terminate employment is with client. Id._

\_If client is willing to intrust survivor with further management of litigation in which firm was employed, survivor must complete unfinished contract for benefit of partner- _ship without compensation unless otherwise agreed. Id. Where attorneys act as copartners and accept retainer, the contract is joint, and neither can be released from obligations assumed by act or agreement between themselves. Id._

\_NOTE.\_Approximment of profits to survive partner: It is said in Roth v. Boles, \[Iowa\] 115 NWV 930, that upon dissolution of a law partnership equity demands some notable apportionment of the profits in excess of the contract share to the active partner elosing out the business. Where the dissolution is by reason of death of a partner, the rule as to partnerships gener- _blanch of legislature._

\_T7.\_Under Wilson's Rev. & Ann. St. Okl. \[Iowa\] 115 NWV 930, that upon dissolution of a law partnership equity demands some notable apportionment of the profits in excess of the contract share to the active partner elosing out the business. Where the dissolution is by reason of death of a partner, the rule as to partnerships gener- _blanch of legislature._

\_T8.\_State R. Commission v. People \[Colo.\]13 Cur. Law. ATTORNEYS AND COUNSELORS SS 11B. 399

held that mandamus by a state to compel a county judge to reinstate criminal cases on his docket can be instituted only by the attorney general.76 Other specific duties of. attorneys general are prescribed by statute, such as the examination of drainage district bonds by the attorney general,80 the enforcement by lien of regulations enacted in the exercise of the police power81 and the representation of state boards,82 but his authority is not ordinarily extended to matters in which the state is only indirectly interest.83 An attorney general given full control of certain litigation by legislative enactment, with provision that the same shall be brought to speedy termination, must be presumed to have implied authority to discontinue an action improperly brought.84 An attorney general may usually employ private counsel to assist him in a proper case,85 the matter of fees being regulated by statute.86

(SS 11) _B. District and state or prosecuting attorneys.87 See 11 C. L. 360_. A constitutional office of prosecuting attorney may not be abolished by the legislature.88 The power of appointment to fill a vacant office of county attorney must be exercised pursuant to statute.89 A disbarred attorney cannot qualify for the office of state's attorney.80\_

85 P 7. Must determine if public office or $65), directing test action as to certain consolidation and lease of certain rall-roads, attorney general was given entire freedom as to nature of action to be brought, though issue were to be brought to speedy judicial determination. Id. 85. Criminal cause. State v. Petrich, 122 La. 127, # 438.

86, Under Ky. St. 1903, $ 114, auditor may employ such assistance and attorneys as are necessary to aid attorney general, _for_ being fixed by governor and auditor. Ray v. James \[Ky.1 112 SW 641. Word "assis-tance" In statute evidently means "assis-tants." Id. Under statute it is a condition precedent to payment of fees for assistant to attorney general, that they shall be fixed by auditor and governor. Id. Fee should be agreed upon at time of employment. Id. No duty to pay fees until agreed upon and payee designated. Id. Complaint insufficient. Id. 87. Search Note: See District and Prose-cutting Attorneys, Cent. Dig. Dec. Dig.: 23 A. & E. Enc. L. (2ed.) 271; 17 A. & E. Enc. P. & P. F. 1.

88. Where office of prosecuting attorney provided for by Const. art. 7, $ 17, it cannot be abolished by legislature. State v. Walton \[Or.\] 99 P 431.

01. Where const. art. 5, $ 21, provides for election of county attorney where ne resident district attorney, and Sayles' Ann. Civ. St. 1857, art. 1541, provides for filling vacancy in such office by commissioner's court, appointment of county attorney by county judge in vacation was unauthorized and void. Moore v. State \[Tex. Cr. App.\] 119 SW 858. Appolunte was unsurger. Id.

01. Disbarred attorney cannot qualify for and hold office of state's attorney, being deprived of right to appear in courts. Danforth v. Egan \[S. D.\] 119 NVR 1021.

Cannet appear in courts of his own state, and other states if aware of disbarment will refuse permission. Id. Since Const. art. 21, $ 3, requires state's attorney to faithfully discharge duties of office," dis 400 ATTORNEYS AND COUNSELORS SS 11B. 13 Cur. Law.

Where statutory grounds of recausation of a district attorney are exclusive," a recausation on any other ground is void," and an information filed by attorney appointed in his place is a nullity." Usually, private counsel may be employed to assist a district attorney in the trial of criminal causes," though the duty of providing assistant counsel rests primarily with the legislature," and the employment is subject to statutory limitations." The employment of assistant counsel in special cases is frequently provided for by statute, as in cases of the employment of special counsel by state," or county" boards, or to assist the prosecuting attorney," and where an appointment amounts to the creation of a public office it can be made only in such manner as such offices can be created.1 Where an official certification is essential to the employment of special counsel, an officer making such certification should not thereafter accept an appointment as such special counsel.2 While constitutional duties can not be abridged by the legislature," the powers and duties of prosecuting district or county attorneys are generally prescribed by statute, and usually include the prosecution of violations of criminal

barred attorney cannot hold such office and

97. Under Ballinger's Ann. Codes & St. perform duties by deputy. Id. Word "attorney" when applied to law refers only to

of dental exammer's authority to employ parties licensed to practice. Id. Where

private counsel is not dependent upon office is designated as state's "attorney" in

constitution and statutes, the intent is that

State Board of Dental Exam's, 50 Wash.

office could not be held by a person, no

matter how "learned in the law," if he has

prosecuting attorney's consent to employ-

not been admitted to practice as an "attorney" and licensed as such. Id. Where

disharred attorney had been guilty of violation of legal ethics, he is not "learned in

sent of prosecuting attorney will be Im-

the law," within such a requirement as a

piled, Id.

qualification of the office of state's attorneys.

ney, since such offense will be presumed

to make contract for employment of special

to have been due to ignorance. Id. Dis-

counsel to represent board in particular

barred attorney allowing name to go on

election ballot perpetrated fraud on people, regardless of whether judgment of

could, State of Ohio v. Hamilton County

disbarrant was unjust. Id.

91. Grounds of recausation prescribed by

Acts 1877, p. 35, No. 35, are exclusive.

State v. Boasberg \[La.\] 50 S 162.

92. Recausation of district attorney in

prosecution for violation of anti-race track

law, merely because attorney believed no

law had been violated, held a nullity, such

matter not ground specified by statute.

State v. Boasberg \[La.\] 50 S 162.

93. State v. Boasberg \[La.\] 50 S 162.

01. State v. Perlich, 122 La. 127, 47 S 483.

01. In criminal causes. Clay County

Com'rs, v. McGregor \[Ind.\] 87 NE 1.

96. County reform law, $ 27 (Acts 1899, p. 352, e. 154, Burns' Ann. St. 1908, $ 5944)

does not invade inherent powers of court,

but provides reasonable limitations upon

exercise of implied discretionary authority

of courts to appoint counsel to aid in case

by submitting to representative body of

voters and taxapayers to what extent state

shall be aided in prosecuting criminal

fenses. Clay County Com'rs v. McGregor \[Ind.\] 87 NE 1. County reform law $ 27 (Acts 1899, p. 352, c. 154; Burns' Ann. St. 1908, $ 5944), preventing binding obligations of court in excess of monkeys

appropriated by county to support of court

does not deprive court of inherent powers,

or compel rendition of legal services without just compensation. Id.

400 ATTORNEYS AND COUNSELORS SS 11B. 13 Cur. Law.

Where statutory grounds of recausation of a district attorney are exclusive," a recausation on any other ground is void," and an information filed by attorney

appointed in his place is a nullity." Usually, private counsel may be employed to

assist a district attorney in the trial of criminal causes," though the duty of providing assistant counsel rests primarily with the legislature," and the employment

is subject to statutory limitations." The employment of assistant counsel in special cases is frequently provided for by statute, as in cases of the employment of

special counsel by state," or county" boards, or to assist the prosecuting attorney," and where an appointment amounts to the creation of a public office it can be made only in such manner as such offices can be created.1 Where an official

certification is essential to the employment of special counsel, an officer making such certification should not thereafter accept an appointment as such special

counsel.2 While constitutional duties can not be abridged by the legislature," the

powers and duties of prosecuting district or county attorneys are generally prescribed by statute, and usually include the prosecution of violations of criminal

barred attorney cannot hold such office and

97. Under Ballinger's Ann. Codes & St. perform duties by deputy. Id. Word "attorney" when applied to law refers only to

of dental exammer's authority to employ

parties licensed to practice. Id. Where

private counsel is not dependent upon

consent of prosecuting attorney. Stern v.

constitution and statutes, the intent is that

State Board of Dental Exam's, 50 Wash.

office could not be held by a person, no laws,4 enforcement of liquor laws,5 and similar duties,6 but a county attorney cannot of his own -motion make the state or county a party to a suit.7 In its relation to public prosecutions, the office of county attorney has been held of a quasi judicial character,8 and in some states a district attorney has absolute power to enter a noble prosequi upon his official responsibility, without the approval of the court,9 but a county attorney will not be allowed to interfere with the exclusive functions of the county fiscal court.10 An illegally appointed county attorney has no power to file information and institute criminal proceedings in a court.11 A county attorney cannot be required to perform duties other than those required by law.12 Official duties may be performed by a deputy,13 and where private, assistant counsel is employed, a district attorney being present may intrust to his associate the exclusive conduct of the case.14 A prosecuting attorney cannot complain of instructions to the grand jury where they do not specifically or otherwise clearly refer to him.15

Footnote 13: Our Law. Attoneys and counselors SS 11B.

Statutory proceedings for the removal of county attorney for failure to perform his statutory duties must be in strict conformity with the statutory requirements.14

The compensation of prosecuting attorneys and similar officers is usually provided for by statute,17 and often takes the form of a percentage of the fines and forfeitures recovered,\[18\] provision usually being made also for expenses incurred by the attorney,\[19\] and services outside of his regular duties,\[20\] but the regular or stated compensation is exclusive so far as regular duties are concerned,\[21\] and agreements to the contrary are invalid.\[22\] It is against public policy for a county attorney to become financially interested in civil suits depending on facts that might warrant criminal prosecutions,\[23\] and such practice is sometimes expressly prohibited by statute,\[24\] though it is held that such officer may recover his lawful and necessary expenditures for the benefit of his client.\[28\] In some states a county attorney may sue to recover compensation allowed by a county board.\[26\]

In some states an attorney cannot be compelled to render gratuitous assistance in the prosecution of criminals,\[27\] and if he accepts an appointment to such duties by the court he is bound by the limitations upon the court's power to allow compensation.\[28\]

(SS 11) C. Municipal attores.\[29\] See 11 C. L. 859. A municipal attorney can be appointed only in the manner provided by law,\[26\] but a court will not inquire

**18.** Ky. St. 1903, SSS 123, 124, fixing fee of action to recover back amount illegally county attores at percentage of fines and forefictures recovered, entities them to proceedings. In re Moegenberg \[Neb.\] 120 since of judgment for commonwealth on NW 1132.

**24.** Cobbey's Ann. St. 1907, SS 9554. In re 114 SWP 255, Savving clause of anti-trust Moegenberg \[Neb.\] 120 NWV 1132. Where act of 1903 (L 1903, p. 119, e. 94) held not to have effect of keeping alive act of 1899 (Laws 1899, p. 246, e. 146) as to all violations of such act committed before former act took effect, wherefore presenting at-recetive fee for representing such woman, tornes were not entitled to % of penalties issued as compensation. State v. Brady \[Tex.\] 118 SWP 128, rvg. \[Tex. Civ. App.\] is not justification,for receipt of fees. Id. \[144\] SWP 895. Where statutes fix compensation of county attorney at percentage of fines and forefictures recovered, governor's garden cannot relieve the judgment debtor of liability for such fees. Commonwealth v. French \[Ky.\] 114 SWP 255.

**19.** County attorney is entitled to sums expanded in collecting taxes in counties other than his own. Rogers v. Slaton \[Ky.\] 113 SWP 509. For sums paid associate counsel. Id. In absence of statute to such effect, county commissioners are not bound to surplus the county attorney with a M-brany. State v. Major, 50 Wash. 355, 97 P 249.

**20.** For personal services in looking after litigation in federal courts. Rogers v. Slaton \[Ky.\] 113 SWP 509.

**21.** County attorney is not entitled to extra compensation for services rendered court. Rogers v. Slaton \[Ky.\] 113 SWP 519.

**22.** Collector attorney is not entitled to extra compensation for services rendered court. Rogers v. Slaton \[Ky.\] 113 SWP (Acts 1899, p. 352, e. 154) SS 27 (Burns' Ann. 509. Collection of taxes by proceedings in state courts is part of his duty. Id.

**22.** Order of fiscal court, authorizing proceedings to collect back taxes and that county attorney be paid one-fourth of sums recovered, construed as attempt to pay extra compensation for such services. Rogers v. Slaton \[Ky.\] 113 SWP 509. Such order held not an enlargement of compensation of attorney to be elected. Id. Contract whereby board of supervisors sought to secure compensation provided by law for county attorney and that provided for his deputy to be entirely paid to county attor-ney held void. Dubuque County v. Fitzpatrick \[Iowa\] 121 NWP 15. That such attorney accepted compensation less than was due under contract, held no defense to into the reasons influencing a city council in rejecting a city attorney," nor will the court interfere on account of mere irregularities." A city attorney's duties are usually prescribed by charter," and cannot be performed by others." Where a city ordinance prohibits the payment of extra compensation to its officers for services rendered the city, a city attorney cannot recover for services rendered at the request of a special committee of the council \[85\] as distinguished from the council itself."

## 13 Cur. Law. Auctions and Auctions and Auctions

### 13.1 Attorneys for the Public, see latest topical index.

#### 13.1.1 The scope of this topic is noted below."

Title passes to the bidder when the property is knocked down to him," and at any time before the bid is accepted, the bidder may withdraw his offer to purchase or the owner his offer to sell." An announcement or advertisement that certain property will be sold at auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received." Where goods are sold in separate lots, refusal of the bidder to take one lot does not justify refusal to deliver the others," and the auctioneer is liable for conversion if he refuses to deliver." The liability of one who refuses to accept the goods after a successful bid cannot be enforced by the auctioneer " nor is such person liable for commissions on a resale." Where one buys land at an auction sale without knowledge of an incumbrance, he may repudiate the sale and recover back the purchase price, on learning of the incumbrance." In a suit to compel the buyer to accept, tender

created after his temporary appointment,

\\begin{tabular}{l|l} & \\multicolumn{1}{l}{horized and void, creating no office or lia-} \\ without being duty elected thereto. Id. & \\multicolumn{1}{l}{bility for employment. Id.} \\ Character of temporary attorership held & \\multicolumn{1}{l}{35. MacLear v. Newark \[N. J. Err. & & App.\] 73 A 503. Ordinance could not be \\ not changed by execution of bond required & \\multicolumn{1}{l}{} \\ of regular attorney. Id. & \\multicolumn{1}{l}{evaded on ground that committee was au-} \\ M. Grrick v. Fort Worth \[Tex. Civ. App.\] & \\multicolumn{1}{l}{horized by resolution, unapproved by} \\
114 SSV 677. & \\multicolumn{1}{l}{mayor, to employ counsel. Id.} \\
32\. In proceedings to recover office, court & \\multicolumn{1}{l}{36. MacLear v. Newark \[N. J. Err. & & App.\] 73 A 503. Alignishing Klemm v. \\ will not interfere on account of mere irregularities in appointment of incumbent. & \\multicolumn{1}{l}{Newark, 61 N. J. Law, 112, 38 A 692. on} \\ Orrick v. Fort Worth \[Tex. Civ. App.\] & \\multicolumn{1}{l}{114} \\ SW 677. & \\multicolumn{1}{l}{annual that pleagings in latter case alleged} \\
83\. Charter of Ansonia (Sp. Laws 1901, p. 1051, et seq.) construed and held to impose & \\multicolumn{1}{l}{alligation was admitted by demurrer.} \\ upon city\*/ exportation counsel the power & \\multicolumn{1}{l}{37. See 11 C. L. 260.} \\ and duty to represent city in all actions & \\multicolumn{1}{l}{Search Note: See notes in 3 C. L. 394-} \\ wherein city is interested, except as otherwise provided. Nichols v. Ansonia \[Conn.\] & \\multicolumn{1}{l}{20 L. R. A. 503, 545; 39 Id. 678; 57 Id. 784} \\
70 A 636. Power and duty of corporation & \\multicolumn{1}{l}{See, also, Auctions and Auctions, Cent.} \\ counsel as agent of city to decide if defense to action should be made could only be limited and controlled by city itself & \\multicolumn{1}{l}{Enc. L. 260.} \\
34\. Mayor is authorized to employ additional counsel In certain cases, but not to & \\multicolumn{1}{l}{39. Smith v. Hurley \[R. I.\] 72 A 705.} \\ supersede corporate attorney in exercise of & \\multicolumn{1}{l}{40. Plaintiff bid certain sum on property.} \\ his charter duties. Nichols v. Ansonia \[Conn.\] & \\multicolumn{1}{l}{Autoiceer told him that would not con-} \\
63\. Where under charter. & \\multicolumn{1}{l}{after the raise over the previous bidder, it} \\ city attorney was to prosecute criminal & \\multicolumn{1}{l}{being too insignificant, and struck prop-} \\ violations of city ordinances, council could & \\multicolumn{1}{l}{etry or try to previous bidder. Anderson v.} \\ not designate another to perform such duties. & \\multicolumn{1}{l}{Wisconsin Cent. R. Co. \[Minn.\] 120 N NV 39.} \\ ties. Dadmun v. San Diego \[ is not necessary where the buyer denies the contract.47 Where a statute provides that an auctioneer must be given authority in writing, a sale is not binding on the one whose property is sold or the adjudicate, where the authority of auctioneer is not so given,48 and there can be no ratification.49 Auctioneers are in some states required to be licensed and the license is revocable for misconduct50 in a proper proceeding,51 but a sale made by a person not licensed, is good.52 The auction business is not a nuisance per se 53 but it may be so conducted as to become a nuisance.54

Footnote 49: Always begin with the latest article on the subject. Use the latest topical Index.

**Awaitu Quercia; Australian Railots; Automobiles; Autrefocia Acquil; Baggage, see latest topical index. BAIL, CIVIL.**

_The scope of this topic is noted below.55_

**8 1. Right to Trail, and Jurisdiction to | 2. Rights and Labolitites on Ball Bends**

**Grant, 464.**

**SS 1.**\_Right of ball, and jurisdiction to grant.56_See 11 C. L. 560$A$ bond required to be given in a ne exact proceeding is bail in a civil case.57

**SS 2.**\_Rights and liabilities on bail bonds and recognizance.58_See 11 C. L. 561 The statue of Illinois makes it a condition precedent to the right of recovery upon a bail bond that a writ of capias ad satisfaciendum shall issue and be returned non est invents.59

Footnote 49: Always begin with the latest article on the subject. Use the latest topical Index.

_Discharge.See 11 C. L. 361_.--A defendant by giving bail does not waive questions as to the regularity and sufficiency of the papers upon which the order of arrest was granted.60\_

**BAIL, CRIMINAL.**

_The scope of this topic is noted below.61_

**SS 1.**\_Arbitory to Take and Right to Give\*\*

**& 1.**\_Arbitory to Take and Right to Give\*\*

**& 2.**_Miscellaneous of Recognizance and Sufficiency_

**& 4.**_Enforcement of Bond or Recognizance,_

**& 468.**

**& 3.**_Fulfillment or Forfeiture; Discharge;_

**& 5.**\_Remission of Forfeiture and Return\*\*

**& 60.**

**& 46.**\_Duty to look into all circumstances\*\*

**Auctioneer, engaged in selling goods similar to those dealt in by a merchant next contract, as buyer has not the opportunity to do so. Sohns V. Benyi, 118 NYS 139. 47. Reinach V. Jung, 122 La. 610, 48 S 124.**

**& 48.**\_Under Civ. Code, art. 2606.\_Reinach v. Jung, 122 La. 610, 48 S 124.\*\*

**& 149.**_It must be a complete act of adjudication, and cannot be made good some time afterward by an offer to supply that which should have been given in the first place._

**Reinach v. Jung, 122 La. 610, 48 S 124.**

**& 60.**_Greater New York Charter. (Laws 1937. p. 13, e. 778) 34, as amended by Lave's 1007. p. 941. c. 431. In re Rosenthal, 118 NYS 241. Evidence held insufficient to show fraud on auctioneer. Id. On certain to review action of president of board of aldermen in cancelling auctioneer's license, it is unnecessary to present in full evidence taken on hearing. Id._

**& 51.**_Though it may be forfeited in a criminal prosecution for unfair dealings in the conduct of his business, no such penalty can be imposed in a civil suit. Gilly v. Hirsh, 122 La. 966, 48 S 422._

**& 52.**_Even though the act of selling subjects the auctioneer to a penalty. Van Prag & Co. v. Weinberg, 63 Misc. 324, 117 NYS 223._

**& 53.**_Gibly v. Hirsh, 122 La. 866, 48 S 422._

**& 54.**_Gilly v. Hirsh, 122 La. 956, 48 S 422._

**& 404**

**& 13**

- 13Cur. Law. BAIL, CHIMINAL SS 1.
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- 406 BAIL, CRIMINAL SS 2. 13 Cur. Law.
- writ of habeas corpus, the federal circuit court of appeals may, in its discretion, grant or refuse bail,78 but an inferior federal court which has discharged a writ of habeas corpus has no power to admit the prisoner to bail pending an appeal from its judgment.74 Where, on appeal, the accused is found to be entitled to bail, but the record is silent as to those particulars which should determine the amount of the bail bond, the cause will be remanded in order that the bail may be fixed by the lower court.75 A recognizance may be taken on stay of execution conditioned on defendant surrendering himself in execution at the time and place fixed by the sentence or on a day named in the order.76
- 8 2. _Making of recognizance and sufficiency thereof.77 See 11 C. L. 892_.\_The amount of bail is largely discretionary with the trial court,78 and, in fixing the amount, the sole purpose which should guide the court should be to cause the appearance of the accused to answer the charge against him.79 The accurate description required in an indictment or information is not essential in a bail bond.80 It is not necessary that it should state whether the accused was charged by information or indictment;81 but is must designate the court before which the accused is bound to appear.82 A bail bond given by a surety company differs in no way, so far as its legal status is concerned, from the bond of an individual.83 A statutory undertaking for bail is not a common-law recognizance or bond,84 but is a statutory contract to pay money under certain conditions,85 and must contain substantially all of the material elements of the form prescribed.86 The accused is entitled to have his sureties examined in accordance with the law.87 Whether a surety is qualified or not usually depends upon statutory provisions.88 When the bail will be considered. Ex parte Tyler (Okl. Cr. App.J 102 P 716.
- 72 Appellate court will on proper showing make all necessary orders relating to bail. Ex parte Tyler (Okl. Cr. App.J 102 P 716.
- 73. Under rule 33 of circuit court of appeals (150 Fed. XXXVI), providing that prisoner may for good cause shown be detained in custody or be enlarged on recog-ninance, prisoner who has been indicted for crime in one district of United States and apprehended in another is not entitled to bail as matter of right. Ex parte Green, 165 F 557.
- 74. Paragraph 2 of rule 38 of the circuit court of appeals (150 Fed. XXXVI) held not to confer such right, although construction of paragraph is doubtful. Ex parte Ronchl, 165 F 558.
- 75. Ex parte Bake (Mins.) 47 S 783.
- 76. Rev. St. 1899, $ 2695 (Ann. St. 1906, p. 1589) authorizes bail in such case. State v. Stevens, 134 Mo. App. 115, 114 SWV 1113.
- 77. Search Note: See note in 7 C. L. 351. See, also. Ball, Cent. Dig. $ 213-283; Dec. Dig. $ 54-73; $ 5 Cyc. 92-114; 3 A. & E. Enc. L. (2ed.) $80-686; $ 4 A. & E. Enc. P. & P. 208.
- 78. Criminal court of appeals will not reduce ball unless excessive. Held that case did not warrant interference. Ex parte McClellan (Okl. Cr. App.J 97 P 1019; Ex parte Hongnton (Okl. Cr. App.J 97 P 1021. Ball is not to be deemed excessive simply because particular person charged is unable to give bail required. Ex parte McClellan (Okl. Cr. App.J 97 P 1019, Where five informations were filed against accused, each charging him with illegal sale of intoxicating liquor, an order admitting ac circumstances indicate bad faith on the part of the indemnitors, it is within the discretion of the court to refuse to accept the recognizance." When there is a word, the use of which is commonly employed to designate a particular criminal offense, the use of such word is sufficient when used in a recognizance to show that an infraction of that particular public law is meant." While a recognizance given under a statute may be entered into in writing," it must be executed or acknowledged by the principal and surety in the presence of the magistrate taking the same." For the purpose of an application to reduce bail after information is filed, the court must assume that the defendant is guilty of the offense charged." Where one has secured his liberty by giving a bond in a sum fixed by a general order without objecting to the amount, he or his sureties will not be allowed to question the validity of the bond on the ground that such general order had become inoperative by statute."

SS 3. _Fulfillment of forfeiture; discharge; rights and liabilities of sureties."_ See 11 C. L. 803--It is at all times in the discretion of the court, at any stage of the criminal trial, to call the defendant and forfeit his recognizance." Ordinarily an accused on bail may go where he pleases if his sureties do not object," and if he fails to appear and answer an offense his sureties may arrest him," as they are bound at their peril to see that the accused obeys the court's order." If the principal fails to appear and respond to the accusation as required by the conditions of the bail bond, the bond is forfeited,1 and the surety is liable.2 The mere appearance of a defendant and then departing without leave of court does not release the surety." Neither the fact, that the district attorney did not notify the

ney should be allowed to bring witnesses bond in sum fixed by general order which and cross-examine sureties. Id. had become inoperative by reason of statute was binding upon sureties under the circumstances. Axtell v. State \[Ind. App.\] and is either a householder or freeholder. 86 NE 993. Ex parte Ruef, 8 Cal. App. 468, 97 P 83. Under Pen. Code, 8 1279, it is within dis-cretion of court whether a surety who is not resident where bail is offered shall be accepted or not. Id. Under Pen. Code, 8 1279, it makes no difference whether sureties are relatives or not. Id.

89. Sureties rejected where it appeared that one of sureties declared that he would make no effort to produce accused in court and had been fully indemnified against loss, and it also appeared that it was intended to substitute the recognizance and indemnity for person of accused and thereby enable him to flee from justice. United States v. Lee. 170 F 618.

01. Recognizance conditioned for the appearance of accused to answer upon "a charge of attempt to procure an abortion" suffic:ently designated crime under Mills' Ann. St. 1209, which used word miscarriage instead of abortion. Marmaduke v. People \[Colo.\] 101 P 837. 91. Cr. Code, 8 324. Thomsen v. State \[Neb.\] 118 NW 330.

01. Writing left by principal in magistrate's office, purporting to have been signed by principal and surety, was not sufficient. Thomsen v. State \[Neb.\] 118 NW 330.

01. Ex parte McClellan \[OKI. Cr. App.\] 97 P 1018; Ex parte Hough \[Okl. Cr. App.\] 97 P 1021.

01. Burns' Ann. St. 1908, $ 1995, requires that order fixing amount of ball shall be made on first day of each term. Held that
    accused of the day upon which he proposed to move the case for trial;' nor the imprisonment of the accused in another state,8 and the failure of the district attorney to institute proceedings to obtain his release,6 is a sufficient excuse for failure to comply with the terms of the recognizance as regards either principal or surety. A recogizance which stipulates that the accused "shall not depart the court without leave" makes the sureties liable although the information first filed is afterwards suspended by the filing of another.' Where the law provides that a sheriff who fails to take a sufficient ball bond shall stand as a special ball, a person who pays money to the sheriff to be forfeited in case accused does not appear for trial cannot recover such money from the sheriff, he having paid the money into court.8 The sureties on a ball bond are jointly and severally liable.9 A surety on a bond, which is illegal, is not liable.10 If the principal is taken into custody by the proper officer, he is no longer in the custody of his sureties, who are thereby discharged.11 Where the sureties covenant that they will pay a certain amount to the state for each day of imprisonment adjudged if the accused fails to surrender himself in execution of the judgment of imprisonment, a pardon relieves the sureties from liability.12 As to what disposition shall be made of forfeited bail is usually provided for by statute.13

and jurisdiction of the court to take the recogninance,19 and should allega that defendant was charged with a crime,20 that an examination was had,21 and that he was held to answer the charge.22 Though a proceedings on a scire facias taken on a recogninance in a criminal cause is a mere continuance of an existing proceedings to enforce the collection of a confessed debt, it partakes of the nature of a civil action and will be governed by the same rules.23 A dcmurrer to a writ of scire facias on a recogninance for want of facts is not limited to the recogninance or writ but goes to the record.24 In some states it is not necessary in a proceedings to forfeit a bail bond, to show that accused was arrested.25 A surety who has received money from the principal to meet liability in case of a forfeiture of the bond has no real interest in the result of an action to enforce payment.26 It is a good defense to a recovery on a bail bond that the accused was unable to attend court because of an unavoidable casualty.27 Where the judgment 28 on forfeiture of bail bond recites that the principal stands charged by information and the bond states by complaint, it is an immaterial variance.29 The court is without jurisdiction to enter judgment upon a recogninance where it appears that the return of the sheriff upon a scire facias was not made as provided by statute.30 A surety who has an interest in the suit may appeal from a judgment rendered against him.31 In Pennsylvania, the quarter sessions' decree of forfeiture is conclusive in proceedings in the common pleas.32

Footnote 30: http://www.

the principal does not appear until after the time allowed by statute to remit such forfeiture.\[86\] The defendant is not entitled to a return of a deposit made in lieu of bail, where, owing to defendant's failure to appear, the state has lost rights by reason of the forfeiture.\[37\] If the claim for the remission of the forfeiture is not made in the court below, it cannot be raised on appeal.\[88\]

## 1 Definition and Mode of Creation

The scope of this topic is noted below.\[89\]

## 2 Rights and Liabilities as Between Basic and Bailee

The scope of this topic is noted below.\[89\]

## 3 Rights and Liabilities as to Third Person

The scope of this topic is noted below.\[89\]

## 4 Definition and mode of creation

See 11 C. L. 868

Bailment is purely a matter of contract\[41\] but a quasi or constructive contract is sufficient.\[42\] Thus where money has been obtained from another through fraud, misrepresentation, deceit, etc., there is a bailment,\[43\] and where goods have been sold and the vendor retains possession,' he holds such goods as a simple baillee.\[44\] It is often difficult to determine whether a given transaction is a bailment or sale, the distinguishing characteristic being whether title passes thereby.\[45\]

\[command=

- \[35\] 2. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 61 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[36\] 2. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 51 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[37\] 3. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 51 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[38\] 3. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 51 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[39\] 3. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 51 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[40\] 3. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of the bailor," 51 or as provided by the contract of bailment," 52 and where the contract of hijing designates no place for the redelivery of the thing hired, it is his duty to return it to the home of the bailor." 53 If he refuses and neglects to redeliver the thing bailed on demand, when it is his duty to do so, he converts it to his own

- \[41\] 3. _Rights and liabilities as between bailor and laillec._"See 11 C. L. 305. Measure of damages for loss, injury, or conversion is elsewhere treated," 47 as are such general matters as limitations," 48 verdicts, and the like." 49 A bailee is liable for the loss or depreciation, through his negligence, of the property bailed." 50 He is obliged to dispose of the bailed property according to the instructions of * 413 BAILMENT SS 3. 13 Cur. Law.

- use. \[54\] So an unauthorized sale by a mere naked bailee.is a conversion, \[55\] but a deviation from the contract of bailment only in the form of a negligent omission, as distinguished from an affirmative act indicating the bailee's wrongful assumption of control, is not a conversion. \[56\] Where the bailee is a firm, its members are liable jointly and severally for misappropriation of the goods. \[57\] A bailee of past due United States bonds may return similar bonds or pay the face value of the bonds with interest. \[58\] When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee who consequently is liable only for gross negligence. \[59\] On the other hand, if the bailment is for the sole benefit of the bailee, he is bound to use extraordinary care and is liable for slight negligence, \[60\] but what constitutes such negligence as would charge him for loss depends upon the circumstances of the case. \[61\] A bailee for hire is liable for injuries to property if he does not use ordinary diligence and care, \[62\] and he cannot by special contract relieve himself against his own fraud or negligence. \[63\] But, if the subject-matter of the bailment has been injured by accident or some other means wholly without his fault, he is not liable. \[64\] Where the repair of a machine is for the mutual benefit of the parties, the repairer becomes a bailee for hire and is responsible for only ordinary care. \[65\] If the compensation is not expressly fixed, he is entitled to reasonable remuneration, commensurate with the degree of care required. \[66\] A bailee for hire, in order to maintain his the purpose for which it is hired. \[67\] A bailee for hire, in order to maintain his

- s3. Cumnerland Tel. & T. Co. v. Taylor \[ind. App.\] 88 NB 631.

- 54. Instruction held proper. Cumnerland Tel. & T. Co. v. Taylor \[ind. App.\] 88 NB 631.

- 55. Control be held liable for conversion unless it appears that he assumed and exercised dominion or control over property, and, having possession, refused to deliver it to the owner. Cohen v. Kooster, 118 NYS 142.

- 55. Taylor v. Welsh, 138 Ill. App. 190,

- 56. Bailees' omission to place horse in barn at night, as they had agreed, with result that it escaped or was stolen from pasture, does not give right of action for conversion. Rosenberg v. Diele, 61 Misc.

- 610, 114 NYS 24.

- 57. Where firm had misappropriated goods delivered to them by bank upon execution of trust recepits, bank was entitled to bankruptcy proceedings to file claim of 20 per cent against firm and balance against one of members of firm. In re Coe, 169 F 1062.

- 58. Baglin v. Title Guaranty & Surety Co. 166 F 356.

- 59. Evidence held insufficient to support verdict for bailor when evidence indicated that money was taken by burglaars. Di Di Di v. Robino, 118 NYS 702.

- 60. Evidence held insufficient to warrant a finding that sickness and death of bailee or's horse was caused by negligence of bailee. Apeczynski v. Butkiewicz, 140 Ill. App. 375.

- 61. In action against gratuitous bailee wherein court refused to charge "gross negligence" and "slight care" but told jury that bailee for hire is bound to exercise a higher degree of care than gratuitous bailee and that in view of circumstances jury should determine whether bailee had exercised reasonable care in protection of property, held not error to refuse requested lien is bound to prove that he has altered, repaired, or enhanced the value of the article at the request or with the consent of the owner,\[68\] and cannot sustain his refusal to deliver on a demand for payment of more than reasonable charges." A bailee of property in storage cannot, himself, enforce his lien, either by public or private sale,\[70\] but only by judicial authority.\[71\] He has no right to pledge the bailed property without the consent of the bailor.\[72\] The process under which the bailee is justified in surrendering the property of his bailor must be valid;\[73\] and, when it is taken out of custody by valid, legal process, he must, within a reasonable time, give notice to the bailor.\[74\] Where one has come into possession wrongfully he is presumptively liable for missing goods.\[75\]

Where two parties deposit money with a bailee under an illegal agreement, either party may bring an action against the bailee to determine question of ownership.\[76\] Where the bailee toriously converts or negligently permits the destruction of the goods and suit is brought specifically for the loss, the details of the contract of bailment are immaterial and should be treated merely as matter of inducement\[77\] and strict adherence to details as pleaded should not be required in the introduction of the testimony.\[78\] If the pleadings allege conversion, evidence as to conduct of bailee is admissible.\[79\] The bailor for hire has the burden of proving want of reasonable and proper care by bailee,\[80\] and also casual connection between bailee's acts or omissions and the injury complained of.\[81\] When it is proven or admitted by the pleadings that the bailee received money from the bailor upon the promise to safely keep and return it on demand, and such demand is made and refused, the contract and its breach is prima facie established.\[82\] Upon proof that the property was injured while in the possession of bailee,\[83\] or that he failed to return it, a presumption of negligence arises.\[84\] But the rule does not apply where the goods would deteriorate or perish from internal defects or natural causes,\[85\] or

67. Livery stable keeper so impliedly warrants horse let for hire. Conn v. Hunseberger \[Pa.\] 73 A 824. Duty of liver stable keeper to ascertain the disposition of his horses which he keeps for hire. Id. 68. Evidence held not to support verdict for bailee. Strauss v. Keyes, 117 NYS 951. 68. Judgment for bailee reversed because excessive. Strauss v. Keyes, 117 NYS 951. 70. Where bailee did not proceed under or in accordance with statute in respect to unclaimed property or by judicial authority, sale of goods constituted a conversion. Van Buren Storage & Van Co. v. Mann, 139 III. App. 652. 71. Van Buren Storage & Van Co. v. Mann, 139 III. App. 652. 72. Morsch v. Lessis \[Coo.\] 100 P 431. 73. Surrender by bailee of bends which belonged to a corporation, under attachment against secretary of such corporation for personal debt, was a conversion. MacDonsnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. Y. 92, 85 NRE 801. 74. Failure to do so renders bailee liable in an action for conversion. MacDonsnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. Y. 92, 85 NRE 801. 75. Where trunk was found in possession of defendant, such possession being without authority and unexplained, it was unlawful, and plaintiff was entitled to recover damages sustained by reason of loss of articles. Hoff v. Frank Parnelee Co., 140 III. App. 458. 76. Field that, where husband and wife had deposited money to abide an action for divorce, such agreement being Illegal, wife have been destroyed by fire.**66** The question as to what extent a bailee has relieved himself from liability by the posting of notices,**67** reasonableness of explanation offered,**68** and whether his care of the property has been negligent,**68** are matters for the jury.

SS 3. \_Bights and liabilities as to third persons.\_69\*\* See 11 C. L. 899.--A contract of bailment whereby possession is given to another than the owner with the right to sell in the usual course of trade, in consideration of a certain percentage o.i sales, is not requried to be filed or recorded in Michigan in order that it may be valid as to creditors of bailee.**61** A third person has no right to hold bailed property because of nonpayment of debts of bailee,**62** and a purchaser 63 or pledgee 64 of property from a mere naked bailee is liable to the bailor. Where parties claim the property in the hands of a bailee in absolute adverse rights, not founded in any privity of title or any common contract, the bailee cannot compel such parties to interpleal with each other.**65** Where property held by bailee is injured by the negligence of a third person, the negligence of the bailee, if any, cannot be imputed to the bailor so as to estop recovery from third person.**66**

## Banking and Finance

\_The scope of this topic is noted below.\_67\*\*

681. The Occupation in General; Regulation, $ 4. Savings Banks, 423. Supervision, Control, 415. $ 5. Leaus, Investment, and Trust Communities, 423. $ 2. Asist, ed or Incorporated Bankers'

**Corporate Existence in General, 415. $ 6. Depsoits and Repayment Thereof;**

**Traster of Stock, 415. General Powers, 416. Personal Liability and Duty of Officers and Directors, 416. Powers of Officers and Right to Represent the Bank, 416. Winding Un. $ 10. Offenses Against Banking Laws, 433. $ 10. Offenses Against Banking Laws, 433. $ 3. National Bankes; Offecers and Examiners, 421.**

fact that meat hn storage will spoil, but that presumption was that meat was damaged by negligence of bailee, held instructions were erroneous. Patterson v. Wenatence Canning Co. \[Wash.\] 101 P 721. $ 86. Held that, in absence of proof as to circumstances of fire, defendant was improperly held to be prima. facle negligent since destruction of property by fire is entirely consistent with ordinary care. Yazoo & M. V. R. Co. v. Hughes \[Miss.\] 47 S 622. $ 87. Where cotton was pinned and left on plot, as was custom, and there were no-tiees about the gin stating that company would not be liable after cotton was gained, it was error to give peremptory instructions for bailor. Batesville Gin Co. v. Whitten \[Miss.\] 48 S 616. $ 88. In action to recover money deposited for safe keeping, reasonableness of explanation held question for jury. Pregent v. M. Mills, 51 Wash. $ 87. $ 23. $ 89. Whether bailee exercised sufficient caution in leaving money deposited with him in charge of barkeeper who was in his employment. Pregent v. Mills, 51 Wash. $ 187, 98 P 328. Evidence in an action against keeper of garage for breach of contract under which he was not to allow automobile to leave garage without written order, held sufficient to make question of negligence one for the jury. Wilson v. Wyckoff, 117 NTS 783. $ 90. Search Note: See note in 92 A. S. R. $ 547. $ 91-102, $ 13 Cur. Law. See, also, Ballment, Cent. Dig. $ 91-102, $ 134-140; Dec. Dig. $ 21, $ 55 Cyc. 207-212, $ 230-233; A. & B. E. E. L. (2ed.) 761, $ 763. $ 92. Landard cannot justify refusal to give bailed property to bailor because of nonpayment of rent. Yudelman v. Louis, 115 NYS 116. $ 93. Third person who purchased bailed property from mere naked bailee who had no authority to sell was liable to bailor. Taylor v. Welsh, 138 Ill. App. 190. $ 94. Pledge of goods pledged by vendor who held such goods as balee of vendee would not retain possession of goods as against vendee. Schwab v. Oatman, 129 App. Div. 274, 113 NYS 910. Where there was no evidence that bailor knowingly allowed ballee to hold himself out as owner, pledgee had no right to property as against bailor. Morasvch v. Lessie \[Co10.\] 100 P 431. $ 95. New Jersey Title Guarantee & Trust Co. v. Reetor \[N. J. Eq.1 72 A 985. $ 96. Where liveryman hired out horse and wagon to his employee which was injured by street car. Currie v. Consolidated R. Co. \[Conn.\] 71 A 356. Where owner of liv-ery stable let out a horse and buggy and horse was killed at grade ercessing by concurrent negligence of railroad company and bailee, negligence of bailee did not prevent bailor from recovering from railroad company. Glbson v. Bess

**SS 1.**_The occupation in general; regulation, supervision, control.98-See 14 C. L._.\_

"When the repeal of a general banking law is merely revivory, the status of a bank organized thereunder prior to such revision is not changed thereby," nor, if such bank is already in existence, can subsequent requirements as to preliminaries to organization to be made to relate to it.1 In Oklahoma the general statute requiring every corporation to adopt a code of by-laws within a prescribed time does not apply to banking corporations." In the exercise of its right to regulate banks, a state may establish a guaranty fund to protect depositors in case of insolvency," and it may require the verification of reports as to the bank's condition to be made under oath.4 The controller of the currency has authority to compel a bank to make up a deficiency in its capital stock, and his decision as to such deficiency is final.5 Making loans of money on collateral security constitutes an act of banking.6

Footnote 1: Always begin with the latest article on the subject. Use the latest topical index.

**SS 2.**_Associated or incorporated bankers; corporate existence in general._"-See 11 C. L.\_

Many matters common to all corporations are elsewhere treated.8

Footnote 8: The author is grateful to the anonymous referee for the support of this paper.

**Transfer of stock.** See 11 C. L.\_

While a transfer upon the books is essentialto pass complete legal title to the stock, a transfer merely of the certificate vests the equitable title as between the parties." In Kansas the statute imposes upon the bank the duty to make such transfer upon its books, unless the registered holder is indebted to it or unless the bank is insolvent or its capital stock impaired,10 and where the transferee has no adequate legal remedy, such a transfer may be compelled in equity.11 A bank that has knowledge of its stockholder's failing mental condition is bound to such knowledge if it permits a transfer by him.13

\_General powers.\_See 11 c. L. 37a-A bank organized under the laws of Kentucky may, in the absence of statute, transact business within the scope of its authority in other states.13 In the absence of express legislative authority, the power to establish branch banks does not follow by implication as an incident to the right to do a banking business.14 A bank may, however, have as many agents as its needs may require15 and the state may authorize the establishment of branches.10 It is within the power of a bank to borrow money without executing a written obligation therefor.17 That a bank has authority to enter into a contract does not give implied authority to extend it.18

\_Personal liability and duty of officers and directors.\_See 11 C. L. 371.--The officers of a bank cannot deprive its stockholders of their charter rights relative to the liquidation of the bank.19 Directors of national banks owe common-law duty to diligently and honestly discharge their trust,20 and are liable to the stockholders for losses sustained through their negligence and misconduct.21

\_Powers of officers and right to represent the bank.\_See 11 C. L. 371.--The scope of authority of the officers may be limited by the bank's by-laws 22 or by statute.23

Footnote 23: The 13 Cur. Law. Banking and Finance $ 2. The cashier of a bank is usually its manager, and may, while acting as such," transfer its assets as collateral,27 or to misapply its funds.28 Nor can the officers surrender the right of the stockholders to control the bank's liquidation.29 A bank is bound by the acts of its officers acting as agent or representative of the bank within the scope 30 or apparent scope of their authority 31 when the persons dealing with such officers have no notice that they are acting beyond their authority,82 and is also bound by their acts, the authority for doing which it is estopped to deny; 33 but it is not bound by their acts for which no authority exists either

borrowing money in usual course of busi-ness and giving note therefor. Union Nat. Bank of Lyons \[Mo.\] 119 SVV 540. Where cashier borrowed money in usual course of business and hypotheticale owned by banks as collateral therefor, although such by the same authoring under by-laws to make verbal agreement extending to lessee, who had and was void, it would not nullify contract of loan. Id. Section 30 of the act entitled "An act to authorize free banking," passed Mar. 21, 1851, and amended in 76 O. L., 72, enumerating and defining certain acts of officers and others "of any banking company" as penal, although worded in general language, is limited in its operation to banks organized under that act. State of Ohio v. Gibbs, 7 Ohio N. P. (N. S.) 845. **24.** General authority of cashier of private banker to transact business ceasing upon banker's failure, delivery of note by him after banker's failure was made without authority. Casale v. Guion, 116 NYS 294. **25.** May collect debt. Security Sav. Bank v. Smith \[lowal\] 119 NVV 726. **26.** Where bank cashier in making loan or stock knew that ownership was in another and that such owner was an invalid, the bank was put upon inquiry. Groft v. Stitzer \[N. J. Eq.\] 72 A 970. Bank not bound by knowledge of its bookkeeper and assistant cashier that a certain firm for which was also bookkeeper was insolvent. Morris v. First Nat. Bank \[Ala.\] 50 S 137. Mar. Bank of Gloster v. Hindman \[Miss.\] 50 S-65. **28.** Manager of private bank conducted by partnership had no authority to make payments on notes purporting to be firm notes but in fact being individual obligations of one of members alone, where such payment would amount to payment of partner's individual debts out of bank's funds. Blake v. Third Nat. Bank \[Mo.\] 118 SWV 641. **29.** That bank in a friendly suit asked court for appointment of receiver was not a remunation of its rights to a liquidation independently of court. Dervieu v. Colonial Bank & Trust Co. \[La.\] 48 S 649. **30.** Statements by cashier of bank whose duty it was to know the credit of its customers, that check drawn upon it was good, and Indonesian made by him that on return properly endorsed it would be paid, estipped bank as against a bona fide holder from denying want of funds to pay it and that it would be paid when endorsed. Milmo Nat. Bank v. Cobbs, \[Tex. Civ. App.\] 115 SWV 345. In an action against a bank for repairs and storage of an automobile used by vice president in attending to banks's

### Banking and Finance & 2.

13 Cur. Law. by virtue of their office or their agency,\[34\] nor by acts unauthorized to the knowledge of the persons dealing with them.\[55\] The bank is not bound by representations made by its officers in their own behalf,\[36\] and one who deals with a bank cashier in a matter wherein the cashier's interests are adverse to the bank is chargeable with notice of the cashier's want of authority.\[37\] A depositor may ratify the unauthorized acts of the cashier relative to his deposit.\[38\] The burden is upon the one relying on the officer's authority to show that he had it.\[39\]\_Winding up.\[39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 199, 199, 191, 198, 199, 199, 190, 191, 199, 192, 193, 195, 196, 197, 198, 199, 199, 199, 198, 199, 199, 190, 191, 192, 194, 195, 197, 199, 198, 199, 199, 199, 190, 192, 193, 194, 195, 196, 197, 198, 199, 199, 199, 199, 198, 199, 19statute liquidation may be had by the consent of the stockholders 46 independently of the courts, and such right is not subject to surrender by the officers of the bank.46 In some states the directors must be made parties to a proceeding for the appointment of a receiver.47 The petition must be in proper form 48 and must set forth facts justifying the appointment.49 The appointment may be made on the filing of the bill or at any time afterwards.50 and is not subject to collateral attack 41 although made ex parte and without prayer for process.52 The administration of the receiver is for the benefit of the stockholders as well as for the creditors.63 He may ratify or repudiate unauthorized acts of the bank officers,54 and may in the exercise of his duty to collect all the available assets 68 bring actions therefor subject to the ordinary defenses.64 That a receiver has been appointed does not prevent the creditors from suing the stockholders on their liability.57 An

note and mortgage subject to lien of third

receiver under Ann. Code 1892, SS 574, and party and equally interested with him in

such receiver is appointed and takes pos-collection thereof may commence action

session, such proceeding cannot be attacked thereon in its own name. Id. Under St.

collaterally by a third person holding an 1895, p. 177, c. 167, & 12, giving board of

attainment level subsequent to the appank commissions power of limiting num-

pointment of such receiver. Benjamin v.

ber of employes and their salaries when

Staps \[Miss.\] 47 S 425.

engaged in winding up insolvent bank,

Staps \[Miss.\] 47 S 425.

board of directors of bank may fix such

Staps is a 45, & 52 SE

salaries anywhere within limits so made.

Bank of Mendecino v. Brown, 8 Cal. App.

Staps 54. Where cashier has employed funds of

bank to pay his own indebtedness on a bond

45. Rev. St. $\\lx@sectionsign$ 687, and art. 9 thereof,

purchase, receiver of bank may make election to

to ratify unauthorized purchase of

holders, contemplates assent of three-

forums of stock represented at meetings,

and not three-fourths of entire stock

Drefits v. Colonial Bank & Trust Co. \[La.\]

that he purchased for bank, or may repudi-

48 S 649.

ate transaction and sue to recover the

49. Where a bank in a friendly suit asks

count for appointment of receiver, it does

defaulting treasureer of savings bank

not thereby renounce its rights to a liquidation independently of the court, since of

suitures an asset of bank. Bank Com'rs v.

dation independently of the court, since of

Matertown Sav. Bank \[Conn.\] 70 A 1038.

fecers of the bank are without authority to

surnender rights of stockholders under

carrier to control liquidation of bank.

Drefits v. Colonial Bk. & T. Co. \[La.\] 48

against receiver. People's Bank v. Stroud

Staps 49.

47. Directors must be made parties under

Comp. Laws, SS 3212, providing that injunc

tion shall not be granted without due notice

T. Co., 165 F 822.

Double liability of stock-

of application, and notice to show cause

why receiver should not be appointed is not

sufficient. Golden v. Averill \[New.\] 101 P

1021.

0001. Petition asking for appointment of

receiver and for judgment allowing state

bank examinar in charge of bank to retain

money out of assets of bank to pay debt

claimed by state is not subject to criticism

that no final judgment is asked or relief

prayed for. Booth v. State, 131 Ga. 750, 63

SE 502.

49. Bill for appointment of receiver,

charging that fraudulent conduct of bank's

directors and managers had made it insolvent,

vent, set out a condition of things that jus

tilled immediate appointment of a receiver

under Ann. Code 1892, SS 574. Benjamin v.

Staps \[Miss.\] 47 S 425.

50. Such appointment must prevail as

against third party whose attachment was

filed after receiver took charge under

process issued on bill. Benjamin v. Staps

\[Miss.\] 47 S 425.

51. Where bill of creditors and depositors

for appointment of receiver sets forth necessity for immediate appointment of a

receiver under Ann. Code 1892, SS 574, and

sults receiver is appointed and takes pos-

session, such proceeding cannot be attacked

thereon in its own name. Id. Under St.

collaterally by a third person holding an

1895, p. 177, c. 167, & 12, giving board of

attainment leveled subsequent to the appank commissions power of limiting num-

pointment of such receiver. Benjamin v.

ber of employes and their salaries when

Staps \[Miss.\] 47 S 425.

engaged in winding up insolvent bank,

Staps \[Miss.\] 47 S 425.

board of directors of bank may fix such

sulars anywhere within limits so made.

Saps \[Miss.\] 47 S 425.

sulars anywhere within limits so made.

Bank of Mendecino v. Brown, 8 Cal. App.

Staps \[Miss.\] 47 S 425.

Staps \[Miss.\] act creating a preference to the assets of an insolvent trust company does not apply to assignments made prior to its passage.\[58\] The state is entitled to a preference as to the assets of a bank that was a state depository.\[59\] One who sustains fiducary relations to a deposit is not entitled to a preference where such deposit is not regarded as special.\[60\] No preference is created by a loan through clearing-house certificates,\[61\] where there is no fraud and the bank has derived the benefit therefrom.\[62\] Presentation of the pass book is a sufficient exhibition of a claim for accruded interest against an insolvent savings bank.\[63\] Attorney fees for the appointment of receiver should be paid from the funds realized for the creditors before distribution among them.\[64\] An injunction restraining the receiver from proceeding against those secondarily liable tolls the statute of limitations as to the right to make distribution.\[65\]

_Stockholders' individual liability.\[58\]_ See 11 C. L.\[173\]--Under the Kentucky statute, the individual liability of stockholders may be adjudicated either in an equitable suit by one creditor for the benefit of all or in a suit brought by the receiver against each stockholder separately.\[66\] One who has ceased to be a stockholder may be estopped to set up such fact by allowing his name to remain upon the books.\[67\] Under certain circumstances the liability may subsist although the stockholders have become the holders of other stock issued in place of that originally held.\[68\] Stockholders used upon their liability in receivership proceedings are entitled to

58. Act of May 8, 1907 (P. L.\[192\]), estab-lishing an order of preference in distribution of assets of an insolvent trust company among creditors, does not apply to a distribution under an assignment made prior to its passage. In re Prudential Trust Co.'s Assignment \[Pa.\] 72 A 798.

01. Nothing in act creating state depositories or amendatory acts that modifies right of state to priority of payment out of assets of insolvent bank that is state depository, as against individual creditors and depositors. Booth v. State, 131 Ga.\[750\], 63 SE 502.

01. Even though bank had knowledge of fiducary character of fund. Butcher v. Butler, 134 Mo. App. 61, 114 SW 564.

01. Where bank upon verge of insolventy issued its notes and collaterals for clearing house certificates to be used by it as money, such transaction was in nature of a loan, and although amount of collateral exceeded amount of debt, no such trust as is prohibited by Civ. Code 1895, $ 2695, par. 1, was thereby created (Booth v. Atlanta Clearing House Ass'm \[Ga.\] 63 SE 907), nor did such transaction create a preference of creditors under Civ. Code 1895, $ 1979, the consideration passing being a present one (1d.).

01. Where bank upon verge of insolventy issued notes and collaterals to clearing house association for clearing house certificates, creditors of bank could not, upon ground of illegality in absence of fraud, set aside such contract and recover collateral, the bank having derived the benefit therefrom. Booth v. Atlanta Clearing House Ass'm \[Ga.\] 63 SE 907.

01. Where statute requires the creditors of insolventy to exhibit their claims, it is a sufficient compliance for the depositors to present their passbooks to the receiver of a savings bank In order to make a claim for accruded interest. Bank Conn's v. Water-town Sav. Bank \[Conn.\] 70 A 1038.

01. Buist v. Williams, 81 S. C.\[503\], 62 SE 859.

01. In a proceeding to secure the distur-brior to its passage. In re Prudential Trust stockholders of reorganized insolvent bank, on condition that if they had made overpayment excess should be returned to them, held that receiver's right to have fund dis-

01. Stockholders' individual liability un-

01. Yet 1903, $ 547, may be adjudicated either in a suit in equity by one creditor for benefit of all, or in suit brought by re-

01. Yet 1903, $ 547, may be adjudicated either in a suit in equity by one creditor for benefit of all, or in suit brought by re-

01. Yet 1903, $ 547, may be adjudicated either in a suit in equity by one creditor for benefit of all, or in suit brought by re-

01. Yet 1903, $ 547, may be adjudicated either in a suit in equity by one creditor for benefit of all, or in suit brought by re-

01.

Conway v. Owensboro Sav. Bank & Trust Co., 165 F 828. Evidence held to show that all remedies against stockholders primarily include for stock issued prior to reorganizations of insolvent bank had been exhausted. State v. Germania Bank, 106 Minn.\[446\], 119 NVP 61.

67. Where retention of name on books was solely due to neglect of duty by officers, no estoppel arose. Kimball v. Opsey

01. Where an insolvent bank was reorganized by order of court and new stock issued and it was provided that the liability of the original stockholders should subsist, such original stockholders were liable on an assessment of their stock as stockholders and not as mere transferrs. State v. Germania Bank, 106 Minn.\[446\], 119 NVP 61.

### 13 Cur: Law. Banking and Finance $ 3.

credit for the net sum realized in such proceedings after deducting expenses."Creditors of an insolvent bank may sue the stockholders upon their liability, although a receiver has been appointed for collection of assets "o and under the California statute the absence of the stockholder from the state does not toll the state of limitations on such liability.\[11\]

SS 3. \_National banks; officers and examiners.\[72\] Powers and liabilities of bank and officers.\[88\]_See 11 C. L. #1_--A national bank has power under the banking laws to intrust to its agents such authority as is required to meet all of the legitimate demands of its authorized business,\[73\] but such authority must be reasonable.\[74\] It may in certain cases incur liability exceeding the amount of paid in capital stock,\[75\] and, where it has received property under an ultra vires agreement, it must nevertheless account therefor.\[76\] Although not permitted to loan money in real estate,\[77\] a national bank may, nevertheless, enforce a mortgage held as collateral security.\[78\] Only the federal government may question the validity of the act of a national bank in taking a mortgage on real estate "o or in making loans in excess of the amount allowed by statute.\[80\] The by-laws of a national bank as to issuance of new stock certificates do not preclude a court of equity from ordering issue of new certificates.\[81\] The common-law duty rests upon the directors of national banks to diligently and honestly discharge their trust aside from the provisions of the national banking act defining their duties.\[82\] They are liable to the

Bank could not defend in action by statutory liability are not liable for fees of attorneys employed by creditors to prosecute their action against the bank or against the stockholders. Bust V. Williams,

brough and deposit of collaterals for 81 S. C. 495, 62 SE 859. Stockholders sued on their stock liability are entitled to credit for the net sum realized from the receiver-shlp of the bank after deducting the expenses of the administration. Id.

70. Buist v. Williams, 81 S. C. 495, 62 SE 859.

01. Code Civ. Proc. $ 351, excluding from period of statute of limitations time during which defend has been absent from state, does not apply in action to enforce stockholder's liability, Code Civ. Proc. $ 359, expressly providing that such former section shall not apply to actions of that character. King V. Armstrong \[Cal. App.\] 99 P 527.

01. Search Note See notes in S 0. L. #15; 71 Id. $68; 11 Id. $18; 25 L. R. A. $46; 58 Id.

82; 3 Ann. Cas. 1155.

See, also, Banks and Banking. Cent. Dig. $ 39-1127; Dec. Dig. $ 232-288; 5 Cyc. $73-604; 21 A. & E, Enc. L. (2ed.) 319; 3 A.

& E. Enc. P. & P. 260.

73. Agent of bank appointed for purpose of secing that bank's funds were applied to feeding certain cattle upon which it had a mortgage had authority to hire foreman at a stipulated wage per month. Ricker Nat. Bank v. Stone \[OkL\] 97 P 577.

01. Could not blind bank to pay large amount owing to foreman by his previous employers. Ricker Nat. Bank v. Stone \[OkL\] 97 P 677.

01. Power of national bank to Incur lia-blilty exceeding amount of paid in capital stock in case of money deposited or collected is broad enough to include a bond given to secure deposits of county money. Rev. St. U. S. $ 5202 (U. S. Comp. St. 1901, p. 3494). Gratout County Suprus v. Munson (Mich.) 16 Det. Neg. N. 435, 12 NW 117.

stockholders for losses sustained through their negligence or misconduct.\[83\] A cause of action based upon such duty survives against their executors,\[84\] and a complaint thereon must set forth facts essential to a recovery.\[85\]

_Bights and liabilities of stockholders_,\[86\]\[11\] C. L. 274.--A stockholder has a right to inspect the books and papers of the bank for legitimate purposes,\[86\] and may compel the officials to allow such an examination.\[87\] A stockholder ceases to be such upon giving the written notice of withdrawal provided for by statute, and his liability does not extend to the time of appraisement.\[88\] One who is not a stockholder may be liable as such if he has permitted his name to remain upon the books after ceasing to be stockholder.\[89\] One holding stock in a national bank as trustee is not personally liable as a stockholder.\[90\] An assessment cannot be made upon one who has ceased to be a stockholder.\[91\]

_Enforcement of stockholders' liability_.\[86\]\[11\] C. L. 875.--An absolute sale and transfer of stock of a national bank by a holder cannot subsequently be avoided and the transfer held liable for an assessment unless is appears that at the time of the transfer the bank was insolvent and that the transfer knew it.\[92\]

_Receivers_.\[86\]\[11\] C. L. 376

_State interference and powers of state courts_.\[86\]\[11\]\[ ute dispensing with the requirement that the complainant must pay the principal and legal interest before he can obtain relief under the state laws applies to national banks."

SS 4. \_Savings banks.97_See 11 C. L. 878_The courts will not interfere with reasonable rules made by a savings bank pursuant to statute for the regulation of its business without substantial reason therefor." A savings bank depositor is not deprived of his right to his deposit although he has lost his passbook." In the absence of negligence, a savings bank is not liable for a payment of deposits to the wrong person, where the by-laws as incorporated in the contract with the depositor provides that a payment made upon presentation of the passbook shall discharge the bank,1 but the bank may refuse to pay when the book is not presented.2 A deposit in a savings bank may be assigned to a trustee and such assignment is not rendered invalid by an express reservation of the power of revocation.3 Although the statute prohibits a savings bank from taking an assignment of a mortgage, if such assignment is made in good faith, it is nevertheless valid.4 The depositors in the savings department of an insolvent trust company are entitled to share in the distribution of the general assets in the same way and to the same extent as the company's other creditors,5 but, where securities are set aside for the benefit of savings bank depositors, such fund must bear the expense incident to its administration.6

SS 5. \_Loan, investment and trust companies.7_See 11 C. L. 875_A trust company is liable to its client for a breach of trust relative to its employment.8 Where

96. Rev. St. U. S. $198, relating to aury of the banking law (Laws 1832, p. 1899, c. by national banks, provides no remedy 689), providing that passbook must be produced upon any withdrawal of deducing not paid, but does prescribe a penalty, and honor an assignment of a savings bank such penalty being the same as that under Code 1907, $4623, the statute abrogating requirement of complainant to offer to do equity by paying principal and legal interest before obtaining relief under state state state, but applies to injury by national banks as well as to others. First Nat. Bank v. Clark \[Ala.\] 49 S 807.

01. **Search Note:** See notes in 5 C. L. 86; 7 Id. 371; 69 L. R. A. 317; 105 A. S. R. 728; 1 Ann. Cas. 100, 904; 2 Id. 259.

See, also, Banks & Banking, Cent. Dig. Bank, 50, 87 NE 465.

115 1128-1214; Dec. Dig. # 283-309; 5 Cyc.

404-613; 24 A. & E. Enc. L. (ed.) 1140.

98. Rule requiring passbook to be pre- sented when money is drawn. Rosenhal v. Dollar Sav. Bank, 61 Misc. 244, 113 NYS 787.

01. Although the banking law provides that no savings bank may make a payment except upon production of the passbook, the absence of such passbook does not destroy depositor's right to the deposit, and such deposit may be recovered when loss and ownership of the book are undispured. Kenney v. Harlem Sav. Bank, 61 Misc. 144, 114 NYS 749.

01. Evidence held to show. that defendant bank was not negligent in making payment to one who presented passbook and answered identification questions, although such party had wrongfully obtained possession of such book, by-law of bank incorporated in contract of deposit providing that payment where book was presented should discharge book. Kenney v. Harlem Sav. Bank, 61 Misc. 144, 114 NYS 749.

01. Under rule of the bank and of 1122 plaint to collect a deficiency judgment,

### Banking and Finance SS 6.

a trust company has no banking powers, the statute relating to the double liability of stockholders in banks does not apply.9 A receiver of a trust company under a stockholder's bill is not superseded by a receiver appointed at the instance of the attorney general by another court, under the Pennsylvania act creating a banking department of the commonwealth.10 Trust companies that are, under the laws by virtue of which they were organized, neither banks of issue nor of discount and deposit are not subject to a statute giving preferences to bank depositors.11

SS 6. \_Deposits and repayment thereof; checks, drafts, certificates, receipts, credits.12 See 11 C. L. 157--\_Checks are negotiable instruments, and rights and liabilities between drawer, drawee, and indorsers, not involving the bank, are accordingly elsewhere treated.13 While failure to present a check paid through a clearing house and found not good, within the time prescribed by its rules, is not per se a payment, it may be treated as paid, and recovery thereon had by the member holding the check as of a payment made under a mistake of fact.14 A banking custom which is contrary to the rules applying to commercial paper does not bind the bank as a bona fide holder.15

\_Relation of banker and depositor,\_See 11 C. L. 876--\_The relation between the bank and the depositor is that of debtor and creditor,16 although the fund deposited belongs to the public.17 The relation arises when the deposit is placed to the credit

allowed its secretary to purchase such (23 Id. 111, 164: 24 Id. 737: 27 Id. 426, 636: 31

judgment upon which more than principal was subsequently realized without aprizz-46, 523 Id. 730: 70 Id. 955: 1 L. R. A. (N. S.)

ing plaintiff of the fact, such action constitutes a breach of trust and company was 81 Id. 94: 10 Id. 754: 1052: 12 Id. 555: 15 Id.

liable to plaintiff for amount. Fidelity Trust Co., Poole, 136 Id. App. 286.

80 Id. 885: 94 Id. 889: 71 Id. 889: 75 Id. 42, 43:

80 Id. 885: 94 Id. 811: 11 Id. 418: 118 Id.

948 1: Ann. Cas. 632: 2 Id. 117, 206, 539: 6

lo. 189, 747, 818, 939: 6 Id. 832: 7 Id. 819:

10 Id. 115: 10 Id. 898: 88: 11 Id. 245.

See, also, Banks and Banking, Cent. Dlg. 29, 1874 (P. L. 73), and supplemental acts, since under latter act trust company had no banking powers. De Haven v. Pratt \[Pa.\] 72 A 1068. Corporations intended to be reached by Act May 11 1874 (P. L. 135), imposing double liability on stockholders of banks, banking companies, and other banking institutions, are those that do business as banks, that is, those that are engaged in loaning and discounting moneys as banks do. Id. Words "trust companies" used in Act May 11, 1874 (P. L. 135), imposing on stockholders in banks, banking companies, saving fund institutions, trust companies and all other corporations engaged in a banking business, a double statutory liability, has reference to trust companies organized before passage of Act April 29, 1874 (P. L. 73), with power to engage in banking. Id.

10 Jones v. Lincoln Sav. & Trust Co., 222 Pa. 325, 71 A. 209.

11. Trust companies created under general corporation act of April 29, 1874 (P. L. 73), and deriving their privileges and powers from the act of 1889 and other supplementary statutes, are neither banks of issue nor of discount and deposit, and Act of April 26, 18844 (P. L. 419), April 16, 1850 (P. L. 477), and May 3, 1876 (P. L. 171). giving a preference to bank depositors, do not apply. In re Prudential Trust Co.'s Assignment \[Pa.\] 72 A 798.

01. Search Note: See notes in 3 C. L. 420, 425: 5 Id. 357, 380: 12 (P. L. 439: 15 Id. 505: 16 Id. 516; 17 Id. 550; 21 Id. 440; 134; 505: 16 Id. 516; 17 Id. 552; 21 Id. 441; 134; 505: 16 (P. L. 451: 10 Id. 516; 21 Id. 442; 23 Id. 111, 164: 24 Id. 737; 27 Id. 426, 636; 31 Id. 454; 32 Id. 373; 769; 34 Id. 552; 36 Id. 67 of the depositor.\[18\] The bank must keep careful account with the depositor '\* and must act in accordance with the terms of the contract of deposit,\[20\] which may be made with depositors as joint owners.\[21\] By implied condition, the state may terminate the relation when conditions warrant it.\[22\] In West Virginia an account rendered and retained does not become an account stated, as between banker and depositor.\[28\]

\_Repayment of deposits.\_See 11 C. L. 871.--A bank is under an absolute obligation to repay deposits\[24\] to the person entitled thereto,\[26\] but such duty is conditioned upon the existence of deposits in its hands.\[28\] Payment must be made on the depositor's direction,\[27\] otherwise it is liable to the depositor for payments so made.\[28\]

belonging to town with a private banker \[thereof during their mutual lives, survivor without any agreement that funds should be kept separate or that banker should not make out to "K. L. 871.--A bank is under an absolute obligation to repay deposits\[24\] to the person entitled thereto,\[26\] but such duty is conditioned upon the existence of deposits in its hands.\[28\] Payment must be made on the depositor's direction,\[27\] otherwise it is liable to the depositor for payments so made.\[28\]

belonging to town with a private banker \[thereof during their mutual lives, survivor without any agreement that funds should be kept separate or that banker should not use them in usual course of his banking business creates relation of debtor and or the survivor of them," held sufficient to credit and gave supervisor no lien upon such funds as against other creditors. In section with other facts disclosing intention. Id. Order made by original depositor to add name of daughter as owner and creditors him therewith and places proceeds to praye's credit, relation arises between bank and payee. Second Nat. Bank v. Gibboney \[Ind. App.\] 87 NE 1064. When deposit is made and amount and date thereof entered in passbook, it constitutes an admission that bank is indebted to party in whose name deposit is made. Id. Deposit made by brother of owner of money in her name created relation of debtor and creditor between bank and owner of money, although deposit not made by her person.

Allowing v. Provident Inst. \[Mass.\] 86 NE brother. Id. Deposit slip made out in cus-tomary form, being mere acknowledgement that amount had been received, did not change character of special deposit as created by contemporaneous agreement between parties. Fort v. First Nat. Bank \[S. C.\] 84 SE 405. Where a corporation had a deposit in defendant company not subject to check except upon condition, in spite of which fact it issued check to plaintiff for full amount, fact that defendant issued passbook to plaintiff on deposit of check 41d not bind defendant, where it had given prompt notice on discovery of the fact. Republic Life Ins. Co. v. Hudson Trust Co., 150 App. Div. 618, 115 NFS 508.

**19.** Bank employees charged checks more than once and embeziled money represented thereby for period of three years. Held question for jury whether bank had exercised due care. Brown v. Lynchburg Nat. Bank \[Va.\] 64 SE 950. And this in spite of fact that depositor by making comparison of vouchers and list thereof might easily have discovered fact of embeziment. Id.

**20.** Where certificate of deposit acknowledgement receipt of funds from probate judge deposited under Pub. St. 1882, c. 144, 8 16 - (Rev. Laws, c, 150, 23), to accumulate for benefit of cesut qui trust, and provided that they advice should be given for a reduction or discontinuation of interest, neither one day's notice given to eesut qui trust nor a letter to the register of probate was a sufficient compliance with the terms of the certificate. Cole v. New England Trust Co., 200 Mass. 594, 86 NE 902.

**21.** Bank account may be so arranged that two persons shall be joint owners
A bank may lawfully pay out or transfer money on a depositor's account by oral order.\[29\] The giving of a check does not operate as an equitable assignment of the deposit,\[80\] but in Kentucky a check is an absolute appropriation of the amount for which it is drawn.\[11\] Where a check is marked paid and charged to the depositor's account, it is in legal effect paid and cannot subsequently be charged to the in-dorser,\[32\] and, where it pays a check under the mistaken belief that the drawer has funds on deposit, it cannot recover the amount so paid from the holder;\[33\] but payments of overdrafts on depositor's order may be recovered from the depositor\[34\] as may payments made on checks drawn by the depositor's agents, where the bank is not chargeable with the agent's lack of authority to draw, such checks.\[35\]_Forged or altered checks and drafts.See_ in C. L. \[37\]--Under the implied contract between the banker and the depositor that the bank will pay the depositor's checks to the persons to whom payment is ordered, it is the duty of the bank to see that the signatures of such payees are genuine,\[80\] and such duty is the same in law whether the check is made payable to a fictitious or nonexisting person through the drawer's negligence or is made payable to an existing paye.\[37\] The bank is liable for payments made on a depositor's forged signature,\[80\] and as far as the

Seboapard Nat, Bank v. Bank of America, 31. Commonwealth v. Kentucky Distil-193 N. Y. 26, 85 NE 829. Where bank made - here & Warehouse Co. \[Ky.\] 116 SWY 766. check on deposit and delivered it to one - Depsitor, it was - amount of outstanding checks. Id.

Ilable therefore to one who enshed such 32. Consolidated Nat. Bank v. First Nat. check. Gallo v. Brooklyn Sav. Bank, 129 Bank, 129 App. Div. 538, 114 NYS 308.

Appl. Div. 698, 114 NYS 78.

33. Money paid by plaintiff for couponna

01. Bank liable for amount of check presented by payee's special agent who en- dered some without authority and concovered from the holder. Citizens Bank

verted money, bank knowing that endorse of - or Norfolk v. Schwarzschild & Sulberger

ment was made by agent and making no - co effort to ascertain scope of agency. Robbin.

34. In action by bank to recover over- gon v. Bank of Winisho, 42 Ind. App. 350,

85 NE 793. By custom, contract is that when banker receives the deposit he agrees with deposit to pay it out on presentation of his checks in such sums as those checks may specify, and to the person presenting them, and with the whole world the banker agrees that whoever shall become owner of such checks shall upon presentation there- of become the owner and entitled to re- evolve the amount specified in the check, divided the drawer shall at the time have the amount on deposit. Rauch v. Bankers Nat. Bank, 143 Ill. App. 625.

29. Money belonging to F. was by mistake credited to plaintiff's account. Plaintiff agreed with F. that account should be transferred and gave him check intended to be drawn upon bank where money was deposited but was by mistake drawn upon N. C. 770, 64 SE 902. Evidence held to show another bank. Upon presentation of check by F., cashier altered check to conform to facts and transferred accounts. In action by plaintiff to recover deposit, evidence held to show that transfer was by agreement of parties and valid, Whiteset v. People's Nat. Bank (Mo. App.) 119 SWY

01. That such transfer has in fact been made may be proved by circumstantial evidence. Id.

01. Even though check was given for exact amount of drawer's balance. Poland v. Love \[C. C. A.\] 164 F 186. Where defend- - is a one that has a one 13 Cur. Law. Banking and Finance $ 6. 437

rights of the depositor are concerned, such payment is of no effect.\[49\] Where a bank guarantees a signature, it is liable thereon although the signature is a forgery.\[40\] In Illinois a bank is not liable for the payment of a forged indorsement in the absence of evidence that the drawer had sufficient funds in the bank when the cheek was presented or. that it had accepted such check.\[41\] A depositor cannot recover against the bank unless the payment was to his detriment,\[42\] nor where the forged check was in effect payable to bearer and was paid to the holder in due course.\[43\] A loss arising through the impersonation of the payee to the drawer and an indorsement forged by such impostor falls upon the one through whose fault it occurs.\[44\] Although it has been held that the depositor may assume that the bank has ascertained the genuineness of the indorsements before making payment,\[45\] it is the duty of the depositor to examine his passbooks and vouchers within a reasonable time,\[46\] and to give prompt notice to the bank upon discovery that payment

an endorsement has been forged to a check by depositor's agent does not make disounted such checks acquired good title bank liable for payment thereof where deflects since legal effect was the same as if checks were payable to bearer, and of attorney to draw in his name. Snyder a holder in due course, could not recover $76. 38

39. McNeeley Co. v. Bank of North America, 221 Pa. 891, 70 A $91. When a bank pays a check made payable to order, and indorsement is forged or unauthorized, it is the same as if payment had not been made, and amount due deposit is not thereby affected. Caillir v. First Nat. Bank, 37 Pa. Super. Ct. 412.

01. Bank that presented pension checks bearing forged signatures of payees, thereby warranted genuineness of such signa- tures and was liable thereon in suit by United States to recover amounts paid by it. United States v. National Exch. Bank, 29 S. Ct. 665, rve. National Exch. Bank v. U. S., 151 F 402. Bank which guarantees prior endorsement on check is liable thereon if one of such indorsements is forged. Boardman v. Hanna, 164 F 527.

01. No action accretly against bank to payee of checks collected from payee's customers by payee's agent who forged payee's indorsement and embezzled proceeds, where there was no evidence that bank had sufficient funds of drawer when check was presented or that it had accepted such checks by certification or otherwise. Rauch v. Bankers Nat. Bank, 143 Ill. App. 625. Prior to act of June 5, 1907, a bank was only liable to holder of check if it had sufficient bankable funds to pay the same on deposit subject to drawer's order. Id.

01. Where depositors' agent forged payee's name to check sent him by def- positras to pay claim of third party, and to make up a shortage to depositors, deposited proceeds of such forged check to their credit, depositors could not recover against bank for payment of the forged check, since they had not been harmed and still retained their claim against agent. Andrews v. Northwestern Nat. Bank (Min.) 117 NPV 621. Fact that entire transaction is based on credit instead of actual cash payments not material. Id.

01. Where payee's signature was forged and forger knew that parties whose names were forged as payees never would have has been made upon forged or unauthorized signature,\[47\] but failure to examine the passbook and vouchers will estop the depositor only when the bank has not been negligent\[48\] and where the depositor's negligence is directly connected with the forgery\[49\] or has contributed to such payment.\[50\]

\_Set-off of debts due bank against deposit.\_See 11 C. L. 278.--The bank or its assignee for the benefit of creditors\[51\] is entitled to set off a debt due to it against a debtor's deposit, where the latter has been received in the course of business,\[52\] when such debt is due and demand therefor has been made,\[53\] but cannot offset a demand not due.\[54\] Where the debt exceeds the deposit, the bank is under no that he was not guilty of negligence in made by the banker upon whom the check not learning of forgery sooner although bank had made statement and returned to as to the genuness of the indiscern-against bank. Lieber v. Fourth Nat. Bank \[Mo. App.\] 117 SW 672. Where deposit was made by brother of owner of money, and plaintiff's check given as loan was cashed that debrand bank by one who purported to of money, fact that owner of money so the be borrower's agent, upon forged signature, evidence that he failed to examine year and a half constituted no estopted by vouchers or to make inquiry when indiscern against bank for checks paid on sig-nature forged by brother. Second Nat. Bank v. Gibbney \[Ind. App.\] 87 NE 1064.

precluding recovery. Califf v. First Nat. Where deposit was made by depositor's brother, who after passbook had been delivered to deposited retained possession of has been made to credit of debtor, assignee book for safe keeping and afterwards drew out money on forged checks, which checks after payment were retained by bank and \[Ky.\] 116 SW 351.

not returned to depositor, nor were statements of account made to her, through which facts depositor did not discover-fact or forgery for one year and a half, held that these facts did not show negligence on depositor's part as a matter of law, and as owner, and proceeds sent under his that bank was liable for the money so bank could not apply such proceeds to indiscern-against-down-for obligation in the absence of instructions to apply the deposit to its payment."88 Where the bank has knowledge that the deposit belongs to the ward, it cannot apply it to the guardian's personal indebtedness,"89 although deposited to the guardian's individual account."9 A special deposit cannot be charged with debts due the bank by the depositor."88 A national bank holding a certificate of deposit in another national bank, of which it is the correspondent, may, in case of insolvency, apply to such certificate whatever funds belonging to the insolvent is in its possession."9

manner not contemplated by the contract,"44 and if it does so the bank is liable for the actual loss incurred.45

Specific deposits.See 5. C. L. 818

Trust funds.See 11 C. L. 879--Where the bank is chargeable with knowledge that its cashier is misappropriating trust funds deposited with it, it is liable therefor,68 but in the absence of such knowledge a mere suspicion that improper use of the proceeds of a check drawn upon the trust fund may be made does not justify a dishonor of the check.68 Where trust funds have been mingled with other money of the bank to the bank's knowledge, the lien of the holder will attach to all the funds of the bank as a preferred claim.70 Money paid to a depositor while the bank in a going concern, although in fact insolvent, is not thereby impressed with a trust in favor of creditors, although the depositor was induced to withdraw his deposit by rumors of the bank's insolvehcy.71 If such alleged trust fund, whether of public moneys or not, has been dissipated, there can be no preference.72

68. First Nat. Bank v. Barger \[Ky.\] 115 edge of all parties, and if judgment should be recovered they were bound to know that of a certain amount to the credit of a third party, to be protected for depositors' bank's liability could not be limited to benefit by compress receipts or bills of making sulficient to cover the amount, said costs. Id. Payments by bank, which was receipts to be deposited by third party in depositors of receiver's funds not subject like manner as other similar accounts, and to payment except upon order of court, made without authority made bank liable, for a similar amount, the effect of the transaction was that of a loan by depositor to third party and that bank was under obligation to deposit to protect deposit by taking receipts from third party, or that bank agreed to hold either the money or the receipts or receipts for so much of amount as bank let third party have, and this being special deposit, bank could not pay out money to third party without taking collateral therefor without becoming liable to depositor therefor. First Nat. Bank v. Henry \[Ala.\] 49 S 91. Vendor who had made written contract for sale of threshing machine, to be paid for by notes, did not, by sending blank notes to a bank for purpose of securing signatures of purchaser, give bank real or apparent authority to accept notes in escrov under agreement that machine should be given a trial not specified in the contract. Watt v. Davidson \[Neb.\] 118 NSV 662.

01. Where special deposit was made payable to third party upon production and deposit of collateral, and bank paid out such deposit without taking collateral, evidence as to shrinkage in collateral not material. First Nat. Bank v. Henry \[Ala.\] 49 S 97. Bank liable to vendee for money deposited with it as forfeit for purchase of land, and paid to vendor by it contrary to terms of contract upon vendor's liability to give title. Hunter v. Wallace \[Tex. Civ. App.\] 121 SVV 180. Where purchaser of land deposited purchase price with defend- and bank upon agreement with bank and vendor that enough of deposit should be retained to pay a mechanics lien then in process of litigation, but bank sausecuently allowed vendor to check out entire amount whereby purchaser was compelled to pay such lien, it was held that deposit was special to extent of such lien claim. and bank was liable to purchaser the product of payment to the bank, and payment to the bank, and payment to the bank, and payment to the bank, and payment to the bank, and payment to the bank, respectively. The amount of payment to the bank is not the same as the payment to the bank, and payment to the bank, and payment to the bank, respectively. The amount of payment to the bank is not the same as the payment to the bank, and payment to the bank, respectively.

- \[13\] Cur. Law. Banking and Finance $ 6. **431**

\_Certification.\_See 11 C. L. 380--Where a check is certified at the request of the drawer, the latter is not discharged, but otherwise where the certification is done at holder's request.78 The certification of a check is equivalent to an acceptance,78 and the bank is liable thereon although the check is a forgery.78 Such acceptance cannot be revoked by the drawer.78

\_Slander of credit and damages for refusal to pay check.\_See 11 C. L. 380

\_Action to recover deposits.\_See 11 C. L. 380--No action to recover a deposit lies where the transaction by which the deposit was created is illegal.77 Personal notice to a savings bank is, under the Massachusetts statute, required in an action by the state to recover funds belonging to an absentee.78 The county attorney may maintain an action to recover interest on unauthorized deposits of public funds.78 Where the account is joint, both depositors must join.80 The complaint must allege facts essential to a recovery.81 The issue of whether the account has been transferred is one for the jury.82 The ordinary rules as to admissibility of evidence apply.83 Estoppel and waiver constitute a defense,84 although no express agreement to waive is shown.85

62 SE 249. In order that a preferred claim | depositor, have received notice that check may exist for public moneys deposited, it must appear that the deposit was a wrong-ful act on the part of either the deposit or the bank, that the bank knew the deposit to be of public funds, and that the estate of the bank has been enlarged and than the money can be traced and shown to be part of the bank's funds at the time of the distribution. Lucas County V. Jamison, 170 F 388. Funds need not be identified by "ear marks," but must be traced into the estate and there found by an augmentation of the estate. Id. 72. Lucas County v. Jamison, 170 F 388. Where such fund was left to credit of in-solvent bank in another bank on payment to it of overdraft by insolvent, and obtained by receiver, it might be recovered from him as a preferred claim. Id. 73. Negotiable Inst. Act April 4, 1902, $ 188 (P. L. p. 614). Times Square Auto-mobile Co. v. Rutherford Nat. Bank \[N. J. Err. & App.J 73 A 479. Where holder had check given in payment of automobile certified, drawer was discharged and bank could thereafter refuse payment on ground that sale was brought about by fraudulent representations. Times Square Automobile Co. v. Rutherford Nat. Bank \[N. J. Err. & App.J 73 A 479. 74. Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St. 189, 87 NE 73. Indorsement on check presented for deposit to drawer's credit, that upon return, properly indorsed, it would be placed to his credit, was an acceptance, and not a certification. Mimo Nat. Bank v. Cobbs \[Tex. Civ. App.J 115 SV 345. 75. Bank that has certified as good a forged signature to a check, which plaintiff in good faith in the ordinary course of business and with exercise of due caution has paid, is liable for amount thereof. Adam v. Manufacturers' & Traders' Nat. Bank, 63 Nice. 403, 116 NYS 595. 76. Where certified check had been re-ceived by a bank for deposit and it has credited depositor therewith, it is a bona fide holder and may enforce payment, notwithstanding it may, before payment to

## 7 Circulating notes

See 8 C. L. 568

A statute exempting national banks from the operation of the general tax on circulation extends only to such national banks as represent state banks \[87\].

## 8 Loans and discounts

See 11 C. L. 581

In making loans upon collateral which to the bank's knowledge belongs to another than the applicant, the duty rests upon the bank to ascertain the scope of the agent's authority \[88\]. The officers of a bank taking over a loan made by its predecessor are chargeable with knowledge that the loaning bank had misapplied money collected on collaterals \[89\] and such knowledge binds the bank \[91\].

_Drafts with bill of lading attached_ \[89\]. See 11 C. L. 581

## 9 Collections

See 11 C. L. 581

The deposit of an uncertified check is deemed to be for collection \[93\]. A bank holding a draft or bill for collection is the agent of the indorser \[88\] and is not liable if it accounts for the proceeds, even though the indorsement which made the collection possible was a forgery \[95\]. The bank may collect through an agent \[88\]. A bank owes to its correspondent the duty to exercise due to

- \[ diligence in notifying it of the dishonor of checks drawn upon it." Notes deposited with a bank for collection and not accounted for may be set off in a suit by the bank on a note notwithstanding the statute of limitations." A national bank may take an absolute assignment of a claim for collection and agree to pay part of the proceeds to another."

SS 10. \_Offenses against banking laws.--\_See 11 C. L. 832.--The federal statutes make it an offense for an officer of a national bank to wilfully misapply the funds of the bank," or to make a false report with intent to deceive an examiner 3 or an officer of the association," or to falsify the books of the bank." A statute forbidding bank officials to loan to themselves more than a certain amount of the capital stock is applicable only to officers, agents, and directors of banks of issue." Indictment under the federal statute for misapplication of funds by an officer of a national bank need not allege that bank was one organized under laws of United States," nor that it was doing business when the offense was committed 4 and it is sufficient

tain contracts on which instalments were |Nor would it have availed to have charged due as collateral security on its notes and that the false entries were made with in-made collections thereof through bank, |tent to deceive one of exammer's appointed corporation was agent of bank, holding |wnder $5240, |Rev. St., because government such contracts and was under obligation |could not have shown any statute under to pay to it all proceeds thereof to extent |which report sent to comptroller is shown |or delivered to exammer. Id. Nor could |In re Merrill, 162 F 590. |not. If bank is in exercise of due diligence |bank, since such report must have been in-in notifying its correspondent, it will not be |Iable to drawer for failure to protest |Id. Rev. St. 209 |(U. S. Comp. St. 1901, p. |there being no endorsers, |Whitman v. |Wrist Nat. Bank, 35 Pa. Super. Ct. 126. Bank |to have done all it was required to do |wrench' to make check drawn upon itself good by paying overdraft, and notified correspondent by telegraph of dishonor on same day and protested it on following day. Id. |W. Where defendant placed certain notes |W. plaintiff for collection and alleged that such notes had been collected but not accounted for, she could set off the amount of such notes against the claim for a note held by plaintiff, notwithstanding the statute of limitations. Bank of Latham v. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. |W. | |W. |W. |W. | |W. |W. | |W. |W. | |W. |W. | |W. |W. | |W. |W. | if it appears that the funds misapplied were those of the bank.\* An indictment for making false statements to deceive an officer of the association must show the nature of the statement \[10\] and by whom made.\[11\] An immaterial departure from the language of the statute does not render the indictment defective.\[12\] An indictment under the Kentucky statute for making a false report bf the condition of the bank is sufficient if it simply negatives the truth of the statements made, and it need not allege that the report was sworn to.\[13\] Under a statute making it laceny for an officer of a trust company to become indebted to the company, guilty intent may be inferred from the mere fact of indebtedness.\[14\] Instructions must not be misleading.\[13\]

\_Receipt of deposits when bank is insolvent._See 11 C. L. 1888_--A statute making a bank official, who receives deposits knowing that the bank is insolvent, guilty of embezzlement, is constitutional.\[16\] The bank must be shown to be \[17\] actually insolvent \[18\] to the knowledge of its officers.\[19\] The deposit of a check \[20\] and its en try to the depositor's credit is a receipt of a deposit within the meaning of the state,\[21\] but such check must be drawn upon the bank in which deposited.\[22\] A deposit to meet an existing overdraft is not within the statute.\[23\] The Nevada state contemplates an actual receipt by the officer charged,\[24\] while in Wisconsin it must be shown that the accused acted for the bank.\[25\] The Missouri statute making the failure of the bank prima facie evidence of knowledge on the part of the officers applies to all banks.\[26\] Indictments under such statutes must allege facts within the exact terms of the statute,\[27\] but the character of the deposit need not be alleged.\[28\] Instructions must not comment on the evidence.\[29\]

deposits by insolvent bank when assets

penishable where actual receipt was by realizable in reasonable time were greater

receiving teller. Id. Indictment charging

that accused was president of an incorpor-

19. In a prosecution under Code 1906,

t 1169, making it a crime for an employee

proving teller, received a de-

of a bank to receive deposits knowing or

post knowing that bank was insolvent, does

having good reason to believe the estab-

ind charge accused with receiving deposit

lishment to be insolvent, without informing

under St. 1907, p. 414, c. 189. Id.

depositor of such condition, the fact of

25. Indictment under St. 1898, & 4541, for-

knowledge of insolveve or his having

good reason to believe therein must be

when bank is unsafe or insolvent, that

tablished, and if nonexistence of such

charged receiving of deposits of money and

material elements were due to employe's

negligence, such employe cannot be con-

yielded. Stewart v. State \[Miss.\] 49 S 615.

That bank was insolvent and accused was

the bank on deposit, sufficiently shows that

is ignorant of it through negligence is not

sufficient. Id. In prosecution under Code

1906, & 1168, making it a criminal offense

26. Rev. St. 1899, & 1945 (Ann. St. 1906,

for an employee of a bank to receive deposits

1st, knowing or having good reason to be

1st Devank to be insolvent, without informing

the deposit of such condition, instruction

to find accused guilty if his failure to know

of bank's condition was due to his failure

to use reasonable diligence in making

quirry as to bank's condition, if such inquiry

would have afforded him good reason to

believe bank insolvent, held error. Id.

20. Receiving check for deposit constitutes a receiving of deposits within mean-

neg of St. 1898, & 4541, forbidding receiving

of money for credit of depositor with

knowledge or good reason to know that

bank was unsafe or insolvent. Ellis v. State, 185 WIs, & 119 NVT 1110.

21. Deposit of check upon bank and en-

try of balance thereof to credit of depositor

is a receipt of a deposit within meaning

of statute relating to receipt of money by

banker knowing that bank is insolvent.

State v. Salmon, 216 Mo. 466, 155 SW 1106.

22. Evidence as to whether check was

draw on bank in which deposited or not

1814. for receiving deposits when bank is

is material upon question as to whether it

was a deposit of a check or of money, and

check itself is the best evidence for such

purpose. State v. Salmon, 216 Mo. 466, 115 SWV 1106.

23. Deposit must be such as will create

a credit, relation of debtor and creditor be-

between parties, or that of balior and ballee.

or principal and agent. Ellis v. State, 138

Wis, & 513, 119 NVV 1110.

24. Act Mar. 23, 1907 (St. 1907, p. 414, c.

189), penalizing every officer of any bank

who receives a deposit, knowing that bank

is insolvent, does not apply to act of assent

to reception of deposit. Ex parcate Rickey

\[Nev.\] 100 P.134. Word "receives" invov-

ing an affirmative act and not including an

assent to reception involving more passive

acquiescence, president of bank was not

not equivalent to allegation that it was a

draft circulating as money. State v. Smith

\[Ark.\] 120 SWV 166. Indictment for receiv-

ing deposit when bank is insolvent, under

Act Feb. 12, 1901 (Kirby's Dig. p. 1814), is

1814. for receiving deposits when bank is

insolvent, charging that deposit was

evived from person named, must be under-

stood as meaning that deposit was made

by such person for his own account and

SWV 1106.

was so accepted. Id. An indictment under

Act Feb. 12, 1901 (Kirby's Dig. p. 1814) for

receiving deposits when bank is insolvent

tween parties, or that of balior and b

## 11 13 **Cur. Law.**

### 1 \*\*The Scope of this topic is noted below.\*\*10

Footnote 10: **Always begin with the latest article on the subject. Use the latest topical index.** 13 Cur. Law. BANKruptcy SS3B.

**SS 2.**_Supersession of state laws._\[47\]See 11 C. L. 884--While the bankruptcy act operates to suspend \*\* and to emascalute \[39\] all state insolvency laws, the New Jersey statute for the relief of persons imprisoned on civil process is not a general insolvency law in conflict with the national bankruptcy act."

**SS 3.**_Ocasion for proceeding and acts of bankruptcy. A. In general._\[41\]See 9 c. L. 884--Involuntary proceedings must be commenced within four months from the time the alleged act of bankruptcy was committed." A "transfer" within the meaning of the act means any manner of disposition whatever, whether by affirmative acts or by mere acquiescence." _The words "insolvent" and "insolvency" as used throughout the bankruptcy act must be construed as defined therein." In determining the question of insolvency, within such definition, all available assets of the alleged bankrupt must be considered," the test being the insufficiency of debtor's assets, exclusive of such as he may have conveyed, transferred, concealed or removed, with intent to defraud, hinder or delay his creditors," to discharge his liabilities._\[47\]

(SS 3) _B. Disposition of properly with intent to hinder, delay or defraud creditors._\[48\]See 11 C. L. 884--The fact that a disposition of property hinders, delays or defrauds creditors, does not render such disposition an act of bankruptcy in the absence of an actual intent to accomplish such result; " but where a conveyance or transfer is made with such intent," the act of bankruptcy is complete,

guided by utterances of federal courts. eral act. Maroney v. La Barre \[N. J. Err. Stuart V. Farmers' Bank, 137 Wiss. 66, 117 & App.\] 70 A 156. NNV 820.

**SS5.**\_General orders 12 and 30 relate to practice only and do not announce any rule as to the effect of a discharge in bankruptcy. United States v. Peters, 166 F 413.

**SS6.**\_General orders Nos. 12 and 30 and 11 9a of the bankruptcy act are in part materials and should be construed together. United States v. Peters, 166 F 613.

**SS7.**\_Search Note: See note in 3 C. L. 485.

See, also, Assignments for Benefit of Creditors, Cent. Dig. SS 88; 4 Cye, 180; Bankruptcy, Cent. Dig. SS 7-9, 11-37, 134; Dec. Dig. SS 8, 11-37; 5 Cye. A.

**SS8.**\_Bankruptcy act suspends state statute as to voluntary assignments. _Pogue_ v. Rowe, 236 F11, 157, 85 NE 207. State -courts are without jurisdiction to grant relief under insolvency laws suspended by bankruptcy act. Hickman v. Parlin-Oren-dorf Co. \[Ark.\] 115 SWV 31. Merger of respite proceedings into cessation of property under La. Civ. Code, art. 3088, is unauthorized, in view of bankruptcy act. Duffy v. His Creditors, 132 La. 600, 48 S 120.

**SS9.**_Suspension of state statute as to voluntary assignments renders it inoperative in so far as it invalidates common-law assignments for the benefit of creditors, and common-law assignment ls valid unless attacked under bankruptcy law. _Pogue v._ Rowe, 236 Ill. 157, 86 NE 207. As to persons and subjects within purview of bankruptcy act._\[49\]A "transfer" within the meaning of the act means any manner of disposition whatever, whether by affirmative acts or by mere acquiescence." _The words "insolvent" and "insolvency" as used throughout the bankruptcy act must be construed as defined therein." In determining the question of insolvency, within such definition, all available assets of the alleged bankrupt must be considered," the test being the insufficiency of debtor's assets, exclusive of such as he may have conveyed, transferred, concealed or removed, with intent to defraud, hinder or delay his creditors," to discharge his liabilities._\[47\]

(SS 3) _B. Disposition of properly with intent to hinder, delay or defraud creditors._\[48\]See 11 C. L. 884--The fact that a disposition of property hinders, delays or defrauds creditors, does not render such disposition an act of bankruptcy in the absence of an actual intent to accomplish such result; " but where a conveyance or transfer is made with such intent," the act of bankruptcy is complete,

guided by utterances of federal courts. eral act. Maroney v. La Barre \[N. J. Err. Stuart V. Farmers' Bank, 137 Wiss. 66, 117 & App.\] 70 A 156.

**& A.P.J. 156.**

without regard to the question of insolvency,\[51\] though the alleged bankrupt's knowledge or lack of knowledge of his insolvency at the time of the transfer may be considered on the issue of intent.\[52\]

(SS 3) \_C. A preferential transfer while insolvent.\[53\] See 11 C. L. ass_Preference is an act whereby a creditor is enabled to obtain or does obtain a greater percentage of his claim than that obtained by other creditors of the same class.\[54\] Hence a preferential transfer by a partner of individual assets to either an individual or a firm creditor does not constitute an act of bankruptcy by the firm,\[55\] nor can a transfer of individual property by a partner to an individual creditor be made the basis of an individual adjudication against the partner, at the instance of firm creditors;\[54\] but such an adjudication may be predicated upon a preferential transfer by the partner to a firm creditor.\[57\] Intent to prefer is necessary in order to render a preferential transfer an act of bankruptcy,\[58\] but such intent may be inferred from the circumstances of the transfer,\[59\] nor is it necessary that the debtor shall have done affirmative acts in bringing about the transfer.\[60\]

(SS 3) _D. Suffering or permitting, while insolvent, the obtaining of a preference through legal proceedings.\[51\] See 11 C. L. 385--Affirmative action on the part of the debtor is not necessary to render a submission to a preference through legal proceedings an act of bankruptcy.\[62\]_

(SS 3) \_E. General assignment and the appointment of a receiver or trustee.\[53\] See 11 C. L. 385--A general assignment for the benefit of creditors\[64\] though invalid\[65\]

plation of insolvency and without present consideration, and with intent to hinder, delay and defraud their creditors. Henkel v. Selder, 163 F 553.

51. That alleged bankrupt is not insolvent at time of transfer is immaterial. In re Larkin, 163 F 100.

01. In re McLeon, 162 F 575.

01. Search Note: See Bankruptcy, Cent. Dlg. $ 72-79; Dec. Dlg. $ 58,

01. Mills v. Fisher & Co. \[C. C. A.\] 159 F 897. As to effect of preferences with reference to trustee's title to property, see post, $ 10E.

65, 56, 57. Mills v. Fisher & Co. \[C. C. A.\] 159 F 897.

58, 59. In re Tupper, 163 F 766.

60. Acqualescence in transfer by legal proceedings may constitute an act of bankruptcy even under bankruptcy act 1898, $ 3, subd. 2. In re Tupper, 163 F 766. As to allowance of preference through legal proceedings as specific act of bankruptcy, see post, this section, subd. D.

01. Search Note: See Bankruptcy, Cent. Dlg. $ 81, 82; Dec. Dlg. $ 59.

01. Here acqualescence in judgment which will constitute a lien on property may constitute act of bankruptcy under bankruptcy act 1898, $ 3, subd. 3. In re Tupper, 163 F 766. Under Bankruptcy Act 1898, $ 2, subd. 3, providing that it is an act of bankruptcy for one to suffer a creditor to obtain a preference through legal proceedings, and to fail to discharge such preference at least five days before "final disposition" of the property affected by such preference, the term "final disposition" refers to any manner of disposition whatever, including failure to take steps to discharge a judgment lien until one day before it would become final and absolute. Id.

01. Search Note: See Bankruptcy, Cent. Dig. $ 80; Dec. Dig. $ 60.

01. Canner v. Webster Tapper Co. \[C. C. A.\] 168 F 519; Griffin v. Dutton \[C. C. A.\] 165 F 826.

01. Evidence held to sustain direction to find that alleged bankrupt committed act of bankruptcy both individually and as member of partnership by making general assignment for benefit of creditors. Lennox v. Allen-Lane Co. \[C. C. A.\] 167 F 114. Evidence Insufficient to show a general assignment for the benefit of creditors with in $ 3a(4) of the bankruptcy act. Missouri-American Elee. Co. v. Hamilton-Brown Shoe Co. \[C. C. A.\] 165 F 283.

01. Canner v. Webster Tapper Co. \[C. C. A.\] 168 F 519. If intended as general assignment. Griffin v. Dutton \[C. C. A.\] 165 F 262.

01. Evidence held to sustain direction to find that alleged bankrupt committed act of bankruptcy both individually and as member of partnership by making general assignment for benefit of creditors. Lennox v. Allen-Lane Co. \[C. C. A.\] 167 F 114. Evidence Insufficient to show a general assignment for the benefit of creditors with in $ 3a(4) of the bankruptcy act. Missouri-American Elee. Co. v. Hamilton-Brown Shoe Co. \[C. C. A.\] 165 F 283.

01. Canner v. Webster Tapper Co. \[C. C. A.\] 168 F 519. If intended as general assignment. Griffin v. Dutton \[C. C. A.\] 165 F 262.

and repudiated by the creditors "" constitutes an act of bankruptcy, as does also the appointment of a receiver because of insolvency," but where the receivers is not because of insolvency, the question whether the debtor was actually insolvent or not is immaterial."88 It seems that the act of insolvency by appointment of a receiver is complete when the receivership is established."89

(SS 3) \_F. Admitting insolvency in writing and willingness to be adjudged a bankrupt."See 11'C. L. 885.--The admission must be made in some form purporting to be in pursuance to the provisions of the bankruptcy law "11 and must indicate a willingness to be adjudged a bankrupt."2 There seems to be some conflict, or at least confusion, as to the effect of the filing of a voluntary petition in bankruptcy in the name of a partnership by one or less than all of the members thereof," but it seems settled that the admission of insolvency in such case is not binding upon the nonassenting partners who come in and contest it."4 The real question in this connection, furthermore, would seem to relate rather to the necessity of an allegation of bankruptcy by the partnership."9 Whether the board of directors has the power to admit the insolvency of a corporation and to agree to its adjudication as a bankrupt depends upon their powers as conferred or limited by the various statutes, charters or by-laws." Such power, if possessed by the directors, cannot be delegated," nor can it, aside from any question of delegation by the directors, be exercised by any other officer," and if attempted to be exercised by such an officer his act cannot be validated by the ratification of the directors where they themselves have no authority to exercise such power."

SS 4. \_Persons who may be adjudged bankrupts and who may petition." Who may be adjudged bankrupt."\_See 11 C. L. 855--The bankruptcy act specifically designates who may be adjudged an involuntary bankrupt, with reference to both natural persons" and corporations," and only one within such designation can commit an act of bankruptcy " or be adjudged a bankrupt." The character of the alleged bankrupt with reference to whether within the statutory designation " must be determined as of the time the alleged act of bankruptcy was committed." The jurisdiction of the bankruptcy court, or at least its right to act, also attaches as of such date," and having so attached cannot be defeated by the subsequent acts of the debtor." A partnership may be adjudicated as a distinct entity."

\_Who may petition.\_See 11 C. L. 856--An involuntary petition may be filed only by creditors having provable claims," but if otherwise provable an unliquidated claim is sufficient," and the provability, in this connection, of a claim for breach of con tract, is not affected by the fact that the same transaction may involve also a claim for a tort arising from fraud." Any creditor holding a liquidated claim against the alleged bankrupt "33 may appear as a petitioning creditor," though he purchased the claim for the purpose of appearing as a petitioning creditor," received an independent consideration for joining in the petition," or holds his claim as assignee without financial interest therein," but a claim cannot be split and parts of it assigned to different persons in order to qualify them as petitioning creditors."

A partner may file a petition on behalf of himself and the partnership," and in such case the proceedings are voluntary as to the partnership and its creditors," but not as to the nonassenting partners,2 and the latter cannot be adjudicated against their will," nor can the partnership where it is not before the court, be adjudicated against the consent of nonassenting partners who have not been adjudicated.4 On the other hand, the nonassenting partners cannot prevent an adjudication of the partnership as an entity," except by disproving the act of bankruptcy charged 6 or by showing himself solvent and claiming his right under the bankruptcy act to close up the affairs of the partnership," and in any case, except upon disproof of the act of bankruptcy, the nonassenting partners must file their individual schedules.8

SS 5. \_Procedure for adjudication. A. In general.9--See 11 C. L. 886--A proceeding in bankruptcy is a proceeding in rem,10 equitable in its nature,11 and the filing of the petition operates as an injunction restraining all persons from intermedding with the bankrupt's property;12 but it does not deprive a creditor of the

82. Breach ef warranty. Grant Shoe Co. 2, 3, 4, 5, 6. In re Junck, 169 F 481. v. W. M. Laird Co., 212 U. S. 445, 53 Law. 7. In which event he must take upon he himself the settlement of partnership is liquidated. In re Halsey Elec. Generator Co., 163 F 118. Under Const. Cal. art. 12, $ 3, relative to liability of stockholders for debts of corporation, depositors in savings bank may file petition against a stockholder. In re Brown \[C. C. A.\] 164 F 678. Liability of directors of savings bank under Const. Cal. art. 12, $ 3, where funds of such bank have been misappropriated during his term of office, is as determined by state decisions, fixed and contractual, and the bank's depositors and creditors may join in an involuntary petition against such director. Id.

01. In re Halsey Elec. Generator Co., 163 F 118. In re Bevins \[C. C. A.\] 165 F 434. 96. Bernard v. Fromme, 116 NYS 807. Contract whereby attorney for petitioning creditors agrees, in consideration of creditor joining in the petition, to pay such creditor's claim in full is not against public policy, or as tending to defeat intention of bankruptcy act. Id.

01. Assignees are, in respect to such claims, trustees of their respective assigns. In re Halsey Elec. Generator Co., 163 F 118.

01. In re Halsey Elec. Generator Co., 163 F 118. Petition of creditor that he may be joined as petitioning creditor denied, it appearing that he had assigned a portion of his claim to one of the original petitioners. Id.

01. In re Junck, 169 F 481. 1. Answer in intervention by creditor should be stricken. In re Junck, 169 F 481.

right to sue on his claim,\[18\] nor does it of itself stay pending actions,\[14\] but where brought within four months prior to the filing of the petition\[15\] it may upon application be stayed\[16\] either by the state court\[17\] or by the court of bankruptcy,\[18\] provided the cause of action is on which is dischargeable in bankruptcy\[19\] and the judgment is not necessary to enable the plaintiff to proceed against third parties.\[20\] The granting of a stay rests in the discretion of the court,\[21\] which should consider the particular circumstances of each case,\[22\] and refusal of state court to stay action commenced therein does not deprive the bankruptcy courts of jurisdiction to grant a stay,\[23\] but the bankruptcy court has no power to stay an action pending in a state court in another district,\[24\] nor will a stay be granted where the bankruptcy proceedings have been abandoned.\[28\] The power to stay may be exercised to protect the debtor pending the determination of his discharge,\[28\] but the court may take any proper step to protect the creditor in view of the contingency of debtor's failure to secure a discharge.\[27\] Where no stay is obtained, actions may be prosecuted to judgments,\[28\] which becomes conclusive\[29\] and may be enforced against

13. Under Act 1893. Nonoutuck Silk Co. \[not required to do so, but can proceed to v. Pritzker, 143 Ill. App. 644. 14. Nonoutuck Silk Co. v. Pritzker, 143 Ill. 14.1. App. 644. Mere adjudication does not operate as stay against prosecution of a claim. Man' v. Kuhn, 130 App. Dlv. 68, 114 NYS 444. See generally, Stay of Proceedings. 15. Courts of bankruptcy will not ordinarily stay a suit in the state court which was brought more than four months prior to the filing of the petition. New River Coal Land Co. v. Ruffner Broa. \[C. C. A.\] 165 F 81. 16. Maas v. Kuhn, 130 App. Div. 68, 114 NYS 444. 17. Prescoection of dischargeable claims may be stayed upon application to state court. Maas v. Kuhn, 130 App. Div. 68, 114 NYS 444. 18. Courts of bankruptcy have jurisdiction to stay proceedings, pending bankruptcy, upon claims which are provable. In re Mueth, 165 F 506. 19. In re Mueth, 165 F 506. Actions in a state court which is in good faith based upon a claim that the bankrupt obtained property under false pretenses cannot be stayed pending bankruptcy proceedings, the liability not being one dischargeable in bankruptcy. Action for alleged deceit in obtaining money by representing that the bankrupt has no indebtedness, whereas, he is insolvent. In re Lawrence, 163 F 131. 20. An action in state court against bankrupt should not be stayed where a judgment against bankrupt is essential to right of creditor to proceed against surety. Bankrupt gave bond conditioned upon his paying any judgment obtained against him in the action. Order granting stay reversed. In re Mercedes Import Co. \[C. C. A.\] 165 F 427. 21. Matter of stay rests within the discretion of the bankruptcy court. Nonoutuck Silk Co. v. Pritzker, 143 Ill. App. 644. The power of a court of bankruptcy, in its discretion to stay a proceeding in a state court and the exercise thereof, will not be disturbed on appeal except for abuse. New River Coal Land Co. v. Ruffner Broa. \[C. C. A.\] 165 F 881. Court In which action against bankrupt is pending may stay the euit pending obtesnion of discharge, but is property not passing to the trustee.\*0 An adjudication pending an action by a receiver to recover property belonging to the bankrupt does not deprive the state court of jurisdiction of that action.\[31\] While the adjudication does not deprive the state court of jurisdiction to determine the existence of liens against the property of the bankrupt,\[32\] it should retain jurisdiction only so far as necessary to determine.'the rights of the parties before it,\[33\] and, where the actions to enforce liens are brought within four months of the filing of the petition, the bankruptcy court has power to stay them and assume exclusive jurisdiction over the property involved.\[34\] The filing of a petition not followed by adjudication does not, however, place the property of the bankrupt in custodia legis \[35\] so as to render proceedings against it in state courts void.\[35\] The order staying proceedings in the state court does not operate as a dismissal thereof.\[37\] It should be directed to the litigants only \[38\] and is, in the absence of review, conclusive,\[29\] and disobedience thereof may be punished as for contempt.\[40\] The inherent effect of bankruptcy proceedings upon liens acquired in legal proceedings is treated in a subsequent section.\[41\] It is held that the doctrine that the proceedings constitute a caveat to all the world, and operate as an injunction, is not without limitation.\[42\]

liquidated and provable in the amount of | bankruptcy court for settlement of their judgment. In re Buchan's Soap Corp., 169 |L2.48 S #49.

F 101T. Where trustee fails to stay action pending in state court, the judgment therein is binding and the claim cannot again be liquidated in bankruptcy court. Id.

http://www.fnal.gov/

http://www.fnal.

Bankruptcy courts are not courts of limited jurisdiction.44 Their jurisdiction, however, is limited territorially with reference to the bankrupt's residence or principal place of business.44 The schedules should contain a list-of all the creditors of the bankrupt,45 with the places of their residence,46 which the bankrupt must make a reasonable effort to ascertain,47 and, if not known, that fact should be definitely stated.48 A debt should be listed in the name of its present owner,49 but, where bankrupt has no knowledge of change of ownership, it is sufficient if the debt is scheduled in the name of the original owner.50 Where the schedules are sufficient on their face, they are not subject to collateral attack,51 and they cannot be regarded as self-serving declarations.52 Failure of involuntary bankrupt to file schedules within required time renders him subject to punishment for contempt.53

(SS 5) _B. Voluntary proceedings.54 See 11 C. L. 857_-A voluntary petition need not allege an act of bankruptcy,55 and a petition by one or less than all of the members of a partnership in his or their own name or names and in the name of the partnership is voluntary, so far as concerns the petitioner or petitioners and the partnership, as an entity on the one hand and the creditors on the others.56

of bankruptcy proceedings, orders sale of property of bankrupt under attachment against him. Jones v. Springer \[N. M.\] 103 P 265.

43. In re Marion Contract & Const. Co., 166 F 618.

01. Bankruptcy courts have jurisdiction to adjudge as bankrupt persons who have, for the greater portion of the preceding six months, had their principal place of business or their residence or domicic within their respective territorial jurisdiction. In re Pennsylvania Consol. Coal Co., 163 F 579.

01. Where bankrupt in schedules makes Three months and three days residence held to confer jurisdiction, being greater portion of six months. Longley Bros. v. MoScan \[Ark.\] 119 SW 268.

Corporations: The principal place of business of a corporation must be determined as a question of fact, the authority conferred by its charter not being controlling. In re Pennsylvania Consol. Coal Co., 163 F 579. Fact that foreign corpora- tion did not comply with the laws of the strict observation that is alleged to have its principal place of business as a prerequisite to its right to do business therein is immaterial. In re Perry Aldrich Co., 165 F 249.

Maine corporation whose office and place of business in Massachusetts has been in re- cevier's hands for more than three months when petition was filed held not to have had its principal place of business in Massa- chusetts for the greater part of six months preceding the filing of the petition. Id.

Facts considered and principal place of business of a corporation held to be in Pennsylvania though its coal mines are located in West Virginia and its charter designates a place in that state as its prin- cipal piece of business, and though the stance was not completed with changing the place of business to Pennsylvania.

In re Pennsylvania Consol. Coal Co., 163 F 579. Where affairs of two experiments are intermingled so that it is impossible to separate their interests, the court may en- retrain a petition against both though one of them may be located without the dis- trict. In re Alaska American Fish Co., 162 F 498,

of bankruptcy proceedings, orders sale of property of bankrupt under attachment against him. Jones v. Springer \[N. M.\] 103 P 265.

47. Lutz v. Kalmus, 115 NYS 230.

01. In re Marion Contract & Const. Co., 166 F 618.

tion of difference in ascertaining correct residence of creditor enters into the question of the sufficiency of the schedules only in so far as it affects the good faith of the debtor's statement that the creditor's address is unknown. Id. Whether he has made a reasonable effort presents a ques- then of fret. Id.

48. Where bankrupt in schedules makes positive statement that present residence of creditor is unknown, it is a sufficient compliance with bankruptcy law, though he adds there the former location of creditor, which is in fact erroneous, it appearing that he was acting in good faith.

Lutz v. Kalmus, 115 NYS 230. Bankrupt gave notes for $12,000 to a creditor.

Creditor subsequently died and notes were divided between her daughters, and bankrupt so notified, made payments to daughters from time to time. Subsequently he filed petition in bankruptcy scheduling escalate of creditor. Held schedule insufficient for discharge of debt to daughters. Fible v. Crabb, 33 Ky. L. R. 1027, 112 SW 576.

50. Debt held properly scheduled in name when petition was filed held not to have had its principal place of business in Massa- chusetts for the greater part of six months preceding the filing of the petition. Id.

Facts considered and principal place of business of a corporation held to be in Pennsylvania though its coal mines are located in West Virginia and its charter designates a place in that state as its prin- cipal piece of business, and though the stance was not completed with changing the place of business to Pennsylvania.

In re Pennsylvania Consol. Co., 163 F 579. Where affairs of two experiments are intermingled so that it is impossible to separate their interests, the court may en- retrain a petition against both though one of them may be located without the dis- trict. In re Alaska American Fish Co., 162 F 498,

of bankruptcy proceedings, orders sale of property of bankrupt under attachment against him. Jones v. Springer \[N. M.\] 103 P 265.

47. Lutz v. Kalmus, 115 NYS 230.

01. In re Marion Contract & Const. Co., 163 F 166 F 618.

01. Lutz v. Kal A voluntary petition must be based on a debt or debts not provable in a prior proceeding."77

(SS 5) _C. Involuntary proceedings."48 Jurisdiction and general consideration._ See 11 C. L. 487.-In proceedings against one or less than all of the members of a partnership, the partnership cannot be adjudicated."9 Where one or less than all of the members of a partnership file a petition in the name of the firm, the proceedings are involuntary as against the nonassenting partners."9 Where two involuntary petitions are filed in different districts, the court first obtaining jurisdiction will retain it,"61 unless manifest grounds of inconvenience be shown."92 Creditors whose claims are not provable in bankruptcy cannot contest an involuntary petition."63

by its president.\* Amendments should be allowed freely in furtherance of justice,\[71\] and when allowed relate back to the time of filing the petition,\[72\] but acts of bankruptcy committed more than four months prior to the amendment cannot be included therein when not referred to in original petition.\[73\] An answer to an application to amend must state matter germane to the proposed amendment.\[74\]

DefensesSee 11 C. L. **87** --The fact that one of the members of a firm is solvent is no defense against a petition against the firm and the insolvent members.\[75\]

EvidenceSee 11 C. C. **87** --The insolvency of the alleged bankrupt at the time of the commission of the act of bankruptcy must be established by competent evidence.\[76\]

(SS 5) \_D. Exemption of bankrupt from arrest.\[77\] See * C. L. **87** --The bankruptcy act provides for the release of a bankrupt imprisoned for debt, pending the bankruptcy proceedings,\[78\] regardless of whether or not the debt is dischargeable,\[79\] the release from arrest prior to the discharge being merely interlocutory,\[80\] and final determination of the question whether his release should be permanent being had after his discharge is granted, when it can be determined whether the debt upon which the arrest was based is or is not dischargeable.\[71\] Upon release of the bankrupt pending bankruptcy proceedings, he cannot be required to give ball.\[82\]

(SS 5) \_E. Adjudication.\[83\]\_See 11 C. L. **88** --No answer being interposed \[84\] or on the alleged bankrupt failing to comply with orders of the court relative to the pleadings,\[85\] an order of adjudication may be entered by the court, or in the ab sence of the judge from the district by the referee to whom the matter is referred by the clerk.**Reference by the clerk while the judge is within the district does not render the adjudication void.*1 Adjudication may be made without issuance of process on same day the petition is filed, where the bankrupt appears and admits the allegations of petition.\*\*The adjudication places the property of the bankrupt in the custody of the bankruptcy court,\*\*which thereafter has exclusive jurisdiction thereof.**The adjudication put the bankrupts into bankruptcy as against the world, for the purpose of administering whatever assets there may be,**${}^{91}$ **is binding upon all creditors who had notice,**${}^{92}$ **and is not subject to collateral attack,**${}^{93}$ **except for matter going to the jurisdiction of the court,**${}^{94}$ **which latter defects, however, if clearly**${}^{95}$ **and affirmatively appearing on the record,**${}^{96}$ **may be raised by creditors not entitled to contest the adjudication on its merits**${}^{97}$ **and regardless of any question of laches, waiver, or estoppel.**${}^{98}$ **The adjudication is also binding upon the bankrupt and creditors, as to all matters determined,**${}^{98}$ **but does not establish the facts upon which such adjudication is founded, no matter how necessary to the adjudication, except as against parties entitled to be heard.**${}^{1}$ **A fortiori such adjudication is not determinative of matters not necessarily determined thereby.**${}^{2}$ **The adjudication**${}^{1}$ **cannot be attacked by a creditor who has filed his claim in the proceedings**${}^{*}$ **or by one who does not offer to plead thereto.**${}^{4}$ **should not be adjudicated a bankrupt, to**${}^{672}$ **.** **Recital in order of reference that make an order adjudicating it a bankrupt.**${}^{1}$ **judge is absent from district does not af-Younge & Holland Co. v. Brande Bros. \[C. C. A.\]**${}^{1}$ **feet the jurisdiction of the court, but**${}^{1}$ **feet**${}^{2}$ **feet**${}^{3}$**.\*\* **Gliberson v. U. S. \[C. C. A.\]**${}^{1}$ **68 F is not open to collateral attack. Id.**${}^{672}$ **Deputy clerk of district court has**${}^{95}$ **Where the corporation might or might**${}^{1}$ **nor be within the act, the adjudication**${}^{1}$ **sfethere by clerk though judge is**${}^{1}$ **cannot be attacked by creditors having no** **within district, while erroneous and avoid-**${}^{1}$ **standing to contest it. In re New York**${}^{1}$ **Table on review, does not render adjudication-**${}^{1}$ **function vid or subject to collateral attack.**${}^{96}$ **Adjudication against tunnel company**${}^{1}$ **of**${}^{1}$ **not be vacated at the instance of**${}^{1}$ **of**${}^{1}$ **not be vacated at the instance of**${}^{1}$ **of**${}^{1}$ **not be**${}^{1}$ **of**${}^{1}$ **not be**${}^{1}$\*\*.

The adjudication of a partner operates to dissolve the partnership but where the partnership is not adjudicated partnership assets cannot be administered under an adjudication against less than all of the members individually, unless the members not adjudicated consent to such administration.6

**SS 6.**_Procedure after adjudication_,7--See 11 C. L. 389--The court has power in its discretion to refer the proceedings to any referee within its territorial jurisdiction having due regard to the convenience of the parties.8 After adjudication of a partnership upon the petition of one or less than all of the partners, the nonjoining partners may be compelled to file individual schedules.9

**SS 7.**_Protetion and possession of the property pending the appointment of trustees; receivers_.10--See 11 C. L. 389--The appointment of a receiver is authorized only in cases where it is absolutely necessary for the preservation of the estate,11 and, where the necessity therefor does not appear, a receivers cannot be predicated upon the mere consent of the bankrupt 12 particularly where the appointment is opposed by intervening creditors,13 but, being made, it cannot be attacked in a collateral proceeding 14 by parties not interested otherwise than as adverse claimants of property in his possession.18 A receiver being appointed the district court of another district has power to appoint an ancillary receiver where necessary to preserve property of the bankrupt located therein.16 A referee has power to appoint a receiver pending adjudication,17 but this power should be exercised only in cases of absolute necessity where no other means of protection is obtainable 18 and then only upon due notice.19 An unauthorized appointment will not be permitted to delay or affect the trial of the issues between the petitioning and intervening, opposing creditors.20 The application for the appointment of a receiver should be based on pleadings alleging its necessity.21 The receiver is not invested with the title to the property of the bankrupt,21 he is a mere custodian 23 entitled only to possession of such property as is an asset of the estate.24 He may, however, take possession of premises leased by the bankrupt.25 He must in such 15 Claimants of property in the hands of receiver, whose only interest consists of their claim of the ownership of such property, cannot contractly attack the official status of the receiver or the proceedings leading to his appointment. Ross v. Stroh \[C. C. A.\] 165 F 628.

**SS 4.**_R_. Bankruptcy Act. **SS 1.**\_In re Dunseath & Sborn Co., 168 F 973.

**SS 53; 16 L. R. A. (N. S.) 341; 10 Ann. Cas. 174.**_E_. 165 742.

See, also, Bankruptcy, Cent. Dig. **SS 148-163**; Dec. Dig. \*\*SS 101-117.

**SS 6.**\_In re V Western Inv. Co., 170 F 677.

**SS 7.**_In re Junek, 169 F 481; 1n re Solomon, A.J. 165 F 861. Showring of facts rendering_

**SS 7.**_I_. 10.\*\*\_Search Note: See Bankruptcy, Cent. Dig. **SS 148-163**; Dec. Dig. \*\*SS 101-117.

**SS 11.**\_Fault & Co. v. Steiner \[C. C. A.\] 165 F 861; Dunlap Hardware Co. v. Huddleston \[C. C. A.\] 167 F 433. Appointment on application of creditors joined in by the bankrupt, no objection being made thereto. In re Huddleston, 167 F 428.

**SS 7.**\_Fault & Co. v. Steiner \[C. C. A.\] 165 F 432.\_The court has power in its discretion to refer the proceedings to any referee within its territorial jurisdiction having due regard to the convenience of the parties.8 After adjudication of a partnership upon the petition of one or less than all of the partners, the nonjoining partners may be compelled to file individual schedules.9

**SS 7.**_Protetion and possession of the property pending the appointment of trustees; receivers_.10--See 11 C. L. 389--The appointment of a receiver is authorized only in cases where it is absolutely necessary for the preservation of the estate,11 and, where the necessity therefor does not appear, a receivers cannot be predicated upon the mere consent of the bankrupt 12 particularly where the appointment is opposed by intervening creditors,13 but, being made, it cannot be attacked in a collateral proceeding 14 by parties not interested otherwise than as adverse claimants of property in his possession.18 A receiver being appointed the district court of another district has power to appoint an ancillary receiver where necessary to preserve property of the bankrupt located therein.16 A referee has power to appoint a receiver pending adjudication,17 but this power should be exercised only in cases of absolute necessity where no other means of protection is obtainable 18 and then only upon due notice.19 An unauthorized appointment will not be permitted to delay or affect the trial of the issues between the petitioning and intervening, opposing creditors.20 The application for the appointment of a receiver should be based on pleadings alleging its necessity.21 The receiver is not invested with the title to the property of the bankrupt,21 he is a mere custodian 23 entitled only to possession of such property as is an asset of the estate.24 He may, however, take possession of premises leased by the bankrupt.25 He must in such 15 Claimants of property in the hands of receiver, whose only interest consists of their claim of the ownership of such property, cannot contractly attack the official status of the receiver or the proceedings leading to his appointment. Ross v. Stroh \[C. C. A.\] 165 F 628.

Footnote 18: An exception of the bankrupt, in which the bankrupt is not allowed, is to be made, is made, is made, is * 13Cur. Law. BANKruptCY SS 7.

case pay a reasonable rental for the period he is in possession \[24\] which rental is determined without regard to the unexpired lease of the bankrupt.\[27\] A receiver may in a proper case when authorized by the court continue the business of the bankrupt \[28\] in which event he may adopt the assignable contracts of the bankrupt \[29\] and may be authorized by the court to borrow money \[30\] and issue receiver's certificates therefor.\[31\] Where the receiver continues the business after he is satisfied that it can be conducted only at a loss, he will be surcharged \[32\] and as it is the duty of the receiver to account for all assets coming into his possession \[33\] he may 'also be surcharged with the value of property not accounted for.\[34\] Charges' of misconduct against the receiver cannot be predicated on acts done pursuant to the orders of the court.\[35\]

When a court of bankruptcy has, through its officers, such as referees, receivers, or trustees, taken possession of property as belonging to the bankrupt, it has ancillary jurisdiction to determine adverse claims thereto \[36\] and its possession cannot be disturbed by process from another court.\[37\] Property in the hands of a bankruptcy receiver as such \[38\] cannot, therefore, be seized upon a writ issued from a state court; \[39\] but a receiver may be sued as an individual \[40\] or in his official capacity,\[41\] the power to sue him as receiver, however, being limited to cases wherein leave of the court appointing him has been obtained,\[42\] except in cases arising out of some act or transaction connected with carrying on the business of the bankrupt.\[43\] The power of a receiver to sue does not extend beyond actions which may be brought within the territorial limits of the district in which his appointment

- 26In re Youdelman-Walsh Foundry Co., \[tion such amounts. Claimant asserted lien 166 F 381. Fact that bankrupt was in \[which was contested and found invalid.\]

- 29Contract for delivery of oneupon credit to bankrupt held adoptable by receiver where he offers to pay cash on delivery. In re Niagara Radiator Co., 164 F 102.

- 30, 81In re Restein, 162 F 986.

- 32In re Consumers' Coffee Co., 162 F 784. Where a receiver continued the business of a bankrupt as a going concern.

- 33After he is satisfied that it can be operated only at a loss, he will be surcharged with the loss sustained from the time that it satisfactorily appears that it can be operated only at a loss. Id. Can be surcharged with such loss only as is sustained after he is satisfied that the business cannot be operated except at a loss. Id.

- 33In re Consumers' Coffee Co., 162 F 786.

- 34Proceeds of sale of stock and flxtures, for which he did not account. In reConsumers' Coffee Co., 162 F 786.

- 35The time he went into possession and which were used up in continuing the business. Id.

- 35Order of sale of property against which claims for items' were preferred required receiver to pay lienholders amount of their claims out of the proceeds subject to right of persons interested to quests 13Cur. L.-99.

- 36In re Consumers' Coffee Co., 162 F 786.

- 37In re Consumers' Coffee Co., 162 F 786.

- 38In re Consumers' Coffee Co., 162 F 786.

- 34In re Consumers' Coffee Co., 162 F 786.

- 35The time he went into possession and which were used up in continuing the business. Id.

- 38In re Consumers' Coffee Co., 162 F 786.

- 34In re Consumers' Coffee Co., 162 F 786.

- 35The time he went into possession and which were used up in continuing the business. Id.

- 38Order of sale of property against which claims for items' were preferred required receiver to pay lienholders amount of their claims out of the proceeds subject to right of persons interested to quests 13Cur. L.-99.

- 39In re Consumers' Coffee Co., 162 F 786.

- 40In re Consumers' Coffee Co., 162 F 786.

- 41In re Consumers' Coffee Co., 162 F 786.

- 42Subrit on contract for storage of machinery belonging to estate stayed. In reKalb & Berger Mfg. Co. \[C. C. A.\] 165 F 895.

- 43Subrit in state court against receiver in his official capacity when brought without ileave may be stayed unless it arises out of some act or transaction connected with carrying on business of bankrupt. Contract for storage of machinery belonging to state held not carrying on business of bankrupt. In reKalb & Berger Mfg. Co. \[C. C. A.\] 165 F 895.

- 450 BANKruptcy 8. 13 Cur. Law . was had,44 the remedies for the protection of property of the bankrupt located without the district being available only to an ancillary receiver appointed by the court of the district in which the property is located.45 The bankruptcy court cannot take cognizance of a dispute between the bankrupt and the receiver concerning unallowed government claims, the allowance of which is discretionary with the officers of the government,45a nor can the court, where such officers are not parties, make a binding order excepting them from the operation of an injunction restraining all persons from turning the bankrupt's property to anyone except the receiver.45b

- 8. \_Creditors' meetings; appointment of trustee; removals.46 See 11 C. L. 88 Notice of the first meeting of creditors should be given all creditors,47 and failure to do so may be made the basis of an order setting aside the proceedings had at the meeting.48 The trustee is ordinarily elected by the creditors of the bankrupt 49 and should be a resident of the district wherein the proceedings are pending.50 His removal from the district does not, however, justify his removal as trustee, where the change of residence does not interfere with the performance of his duties.51 The fact that a creditor is an employee of a bankrupt 62 or a stockholder,53 or director of the bankrupt corporation,54 does not deprive him of his right to vote for the trustee, and the fact that one of three trustees of the bankrupt may be made defendant in a suit by the remainder does not disqualify him.58 The adjournment of the election of the trustee so as to hear objections' to claims otherwise entitled to vote rests in the discretion of the referee.56

- 44. Receiver appointed in one district cannot maintain action in another district to receive a bases of the bankrupt 62 or a stockholder,53 or director of the bankrupt corporation,54 does not deprive him of his right to vote for the trustee, and the fact that one of three trustees of the bankrupt may be made defendant in a suit by the remainder does not disqualify him.58 The adjournment of the election of the trustee so as to hear objections' to claims otherwise entitled to vote rests in the discretion of the referee.56

- 45. In re Dunseath & Son Co., 168 F 973. 45a. Before a reward claimed by the alleged bankrupt from the treasury department is paid over, the bankruptory court cannot determine the right to possession thereto as between the alleged bankrupt and his receiver. In re Ghazal, 16 F 602. 45b. A receiver was appointed pending determination of the issue of bankruptcy and an order issued requiring all persons to turn property over to the receiver. The alleged bankrupt claimed a reward from the treasury department, which was allowed and turned over to the collector to be paid to the claimant. Held that the bankrupt court had no jurisdiction on a motion by the alleged bankrupt, to which neither the secretary of the treasury nor the collector were made parties, to make Ca., 164 F 275. 45b

- 55. That one of three trustees of bankrupt corporation is director thereof and may be made defendant in suit by trustees over to the receiver. In re Ghazal, 163 F 602. Disputes between the alleged bankrupt and the receiver as to the right to possession of rewards claimed by the bankrupt from the treasury department cannot be determined on a motion to except the secretary of the treasury from the operation of an order restraining the turning over of property to any one but the receiver. Id.

- 13Cur. Law. BANKPRUPTCY SS 9.

\_Examination of bankrupt. See * C. L. \*\*\*.--The bankrupt may be compelled to appear for examination \[87\] and to produce \[88\] and submit his books of account,\[89\] though they contain evidence tending to incriminate him,\[90\] the court, however, protecting him against their use in criminal proceedings.\[61\] The issuance of a writ of habeas corpus ad testicandum for the presence of a bankrupt who is in custody rests in the discretion of the trial court;\[92\] which should be exercised according to the circumstances of each particular case.\[68\] Any creditor may examine the bankrupt \[64\] as to matters relating to his property and indebtedness,\[68\] regardless of whether or not his claim has been filed.\[69\] The bankrupt must answer all questions clearly \[87\] and truthfully,\[88\] and may be punished as well for testifying evasively,\[99\] as where he testifies falsely,\[70\] though he may not be punished for testifying falsely as to immaterial matters\[71\] resulting in no injury to the creditors or the estate,\[71\] nor should he be punished for giving false testimony which he afterwards corrects by testifying truthfully.\[71\]

SS 9. \_Compositions.\[74\] See 11 C. L. \*\*\*.--A composition settlement entered into in good faith and for the best interest of the creditors, and confirmed by the court,\[78\] operates to discharge all debts listed in the proceedings,\[76\] and exhausts the jurisdiction of the court over the assets of the bankrupt.\[71\] On application to approve a composition agreement, the court is concerned only with such property as comes into the estate as an asset for distribution.\[78\] The composition will not be set aside at the instance of a creditor who, through error, participated therein on the basis

- 157In re Sorkin, 166 F 831.
- 158In re Harris, 164 F 292.
- 159Bankrupt punished for contempt in failing to obey orders of referee requiring him to appear for examination and submit his books of account. In re Sorkin, 166 F 831.
- 160In re Harris, 164 F 292.
- 161F 292.
- 162F 292.
- 163F 292.
- 164F 292.
- 165F 292.
- 166F 293.
- 166F 30.
- 167F 31.
- 168F 32.
- 169Bankrupt punished for contempt in failing to obey orders of freedom. In re Sorkin, 166 F 831.
- 160In re Harris, 164 F 292.
- 161F 33.
- 161F 34.
- 162F 35.
- 163F 36.
- 164F 37.
- 165F 38.
- 166F 39.
- 167F 40.
- 168F 41.
- 169Bankrupt punished for contempt in failing to obey orders of freedom. In re Sorkin, 166 F 831.
- 160In re Harris, 164 F 292.
- 161F 30In re Harris, 164 F 292.
- 162F 31.
- 163F 32.
- 164F 33.
- 165F 34.
- 166F 35.
- 166F 36.
- 167F 37.
- 168F 38.
- 169Bankrupt punished for contempt in failing to obey orders of freedom. In re Sorkin, 166 F 831.
- 160In re Harris, 164 F 292.
- 161F 39.
- 161F 30In re Harris, 164 F 292.
- 162F 31.
- 163F 32.
- 164F 33.
- 165F 34.
- 166F 35.
- 166F 36.
- 167F 37.
- 168F 38.
- 169Bankrupt punished for contempt in failing to obey orders of freedom. In re Sorkin, 166 F 831.
- 160In re Harris, 164 F 292.
- 161F 39.
- 161F 30In re Harris, 164 F 292.
- 162F 31.
- 163F 32.
- 164F 34.
- 165F 35.
- 166F 36.
- 167F 37.
- 168F 38.
- 169Bankrupt punished for contempt in failing to obey orders of freedom. In re Sorkin, 166 F 831.
- 161F 39.
- 160In re Harris, 164 F 292.
- 161F 30In re Harris, 164 F 292.
- 162F 31.
- 164F 32.
- 165F 33
  of a part of his claim only \[79\], nor will it, on the ground of fraud, be set aside at the instance of a creditor who under a secret agreement has received an unlawful preference \[80\], nor will a composition be set aside where subsequent proceedings in bankruptcy have been instituted against the bankrupt and it appears that the interests of the innocent creditors can best be protected therein \[81\]; but preferential notes of bankrupt fraudulently given in pursuance of a composition agreement are void as between the parties \[82\] and are not rendered valid by the fact that they were given after the settlement was effected \[83\]. A composition settlement made by one partner in behalf of the partnership and himself and the partnership does not release the remaining partners as to debts upon which they were severally liable \[84\]. Where the evidence supports the adjudication, a clause of a composition agreement providing for a provisional order will not be approved \[84\].

SS 10. \_Property and rights passing to the trustee. A. Particular kinds of property \[85\]. See 11 C. L. 396--\_Except in so far as the rights of creditors have become fastened thereon under provisions of state laws \[86\], the trustee is by operation of law \[87\], vested with the title \[88\] and right to possession \[89\] of all transferable \[90\] or distributable \[91\] assets owned by the bankrupt \[92\] prior to the adjudication \[93\] and within the

79. In absence of fraud. In re Cooper Bros., 166 F 832. In absence of fraud, creditor who consented to composition settlement on basis of part of his claim cannot, after settlement, obtain relief as to re-ma:order thereof. Id.

01. Claimment who paid for goods shipped to another on bankrupt's credit and charged the payment to bankrupt's account held to ones made on composition of former proceedings. In re Sacharoff. 163 F 664.

01. In re Sacharoff, 163 F 664. Note given creditor by bankrupt to induce creditor to consent to composition offer whereby such creditor-receives secret preference. Dicks v. Andrews \[Ga.\] 64 SE 788.

01. Note dated in advance and left with third party to be delivered to creditor after composition. Dicks v. Andrews \[Ga.\] 64 SE 1788.

01. Bankrupt firm was liable to bank, both jointly and jointly and severally. Composition offer by one partner for himself and partnership was accepted and confirmed, bank expressly reserving all other rights.

Held bank entitled to prove claim against estate of remaining partner, less amount received 'under composition agreement. In re Coe., 169 F 1002.

84a. In re Linderman, 166 F 593.

85. Search Note: See note in 7 C. L. 398, 399; 10 Ann. Cas. 243.

See, also, Bankruptcy, Cent. Dig. **SS 193**-239, 625, 656-678; Dec. Dig. **SS 137**-149.

86. See post, **SS 10C**, 10D.

01. In re Burke, 168 F 994. No other act than his appointment and qualification is required to vest tile in trustee, and he need not intervene in pending action by or against bankrupt in order to be entitled to fruits of such action if bankrupt be successful. Kessler v. Herklotz, 132 App. Div. 278, 117 NYS 45.

01. Hansen Mercantile Co. v. Wyman, Partridge & Co., 105 Minn. 491, 117 NW 926.

01. Bankrupt's possession of property is vested by operation of law in trustee. In re Burke, 168 F 994.

01. Trustee is vested with all property which, prior to filing petition, bankrupt could by any means have transferred. Han-

01. In absence of fraud. In re Cooper Bros., 166 F 832. In absence of fraud, creditor who consented to composition settlement on basis of part of his claim cannot, after settlement, obtain relief as to re-ma:order thereof. Id.

01. Claimment who paid for goods shipped to another on bankrupt's credit and charged the payment to bankrupt's account held to those action of bankrupt to be accompanied of his acceptance of goods shipped, it appearing that at the time of shipment claim-ant mailed bills of lading to bankrupt and thereby parted with any title he may have had. In re Kessler & Co., 165 F 508. Fact v. Andrews \[Ga.\] 64 SE 788.

01. Note dated in advance and left with third party to be delivered to creditor after composition. Dicks v. Andrews \[Ga.\] 64 SEE 1788.

01. Bankrupt firm was liable to bank, both jointly and jointly and severally. Composition offer by one partner for himself and partnership was accepted and confirmed, bank expressly reserving all other rights.

Held bank entitled to prove claim against estate of remaining partner, less amount received 'under composition agreement. In re Coe., 169 F 1002.

84a. In re Linderman, 166 F 593.

85. Search Note: See note in 7 C. L. 398, 399; 10 Ann. Cas. 243.

See, also, Bankruptcy, Cent. Dig. **SS 193**-239, 625, 656-678; Dec. Dig. **SS 137**-149.

86. See post, **SS 10C**, 10D.

01.

court's jurisdiction,"4 the trustee's title thereto relating back to the time of the filing of the petition."5 This includes life insurance policies having a surrender value "# under which beneficiaries may be changed at the will of the insured,"5 except as otherwise provided by the local laws,"6 also rewards allowed by the proper officials of the federal government but not paid over,"7 unexpired leases of the bankrupt," membership in stock exchanges,2 as well as a cause of action in favor of the bankrupt whether arising upon contract " or for unlawful taking or detention of " or injury to property of the bankrupt,"4 also rights under contracts of the bankrupt " and the funds growing out of the execution thereof." He may take

113 NYES 609. Brick plant erected on leased premises held trade fixture and removable by trustee, notwithstanding lease providing that additions, improvements, etc., should be surrendered to leased, stockholders and directors of leased assee being the same and money used in erected of plant being furnished by creditor. Monticello Brick Co. v. Traveler \[C. C. A.\] 167 F 482. Claimant held not to have title to property purchased with borrowed money, but merely a claim against bankrupt for money loaned with which to purchase such property. In re Sasman, 167 F 419. Reselessian after bankrupte, on ground that credit was obtained on false representations of solvency denied, it appearing that creditor did not rely entirely upon representation and was guilty of laches after learning of their falsity. In re Sweeney \[C. C. A.\] 168 F 612.

**93. Property acquired by bankrupt after adjudication does not pass to trustee. Life estate in property devised to bankrupts. Hackett's Trustee \[Ky.\] 118 SW 377.**

**94. Statutory transfer to assignee in bankrupte in Ireland held without effect in Arizona. In re Delehany's Estate \[Ariz.\] 95 P 109.**

**Comity: Involuntary assignment in Ireland to bankrupty assignee recognized in Arizona, as between bankrupt and assignees in absence of local creditors, so far as concerned personality, but not recognized as to reality, the assignment not being acknowledged or required by laws of state. Mills v. Fisher & Co. (C. C. A.) 159 F 897.**

**95. In re Niagara Radiator Co., 164 F 102.**

**96. Partly paid up life insurance policies with usual contingencies and provisions for changing beneficiaries and as to surrendering policies and _receiving benefits_ thereof are treated as assets of a bankrupt. In re Whelphey, 169 F 1019. In New York a policy payable to bankrupt's wife If living at time of his death, under which bankrupt may change beneficiaries without her consent, which provides for payment to him when he reaches a specified age and has a present cash surrender value, is properly of bankrupt's estate to the extent of the surrender value at time of filing petition. In re Wolff, 165 F 984. Where part of premium has been paid by wife, trustee entitled to surrender value less proportion thereof that payments by wife bear to entire premiums paid. Id. An insurance policy payable to bankrupt's estate and having a cash surrender value passes, unless re- deemed. to the trustee. under Act 1898.**

**97. In re Wolff, 165 F 984.**

**98. Relative rights of creditors and beneficiaries are controlled by statute. See Rev. Laws, 118, 873. Bailey v. Wood \[Mass.\] 89 NE 149.**

**99. Reward by secretary of treasury for information leading to seizure of smuggled goods made but not paid over is property of claimant and passes to his trustee in bankrupte. In re Ghazal, 169 F 147.**

**1. Trustee may adopt unexplored lease as an asset of the estate. In re Rubel, 166 F 131.**

**92. Wrede v. Gilley, 61 Misc. 530, 113 NYES 609.**

**93. Hansen Mercantile Co. v. Wyman, Partridge & Co., 105 Minn. 491, 117 NWP 926.**

**94.** Stulatory transfer to assignee in bankrupte in Ireland held without effect in Arizona. In re Delehany's Estate \[Arriz.\] 95 P 109.\*\*

**95.** Country: Involuntary assignment in Ireland to bankrupty assignee recognized in Arizona, as between bankrupt and assignees in absence of local creditors, so far as concerned personality, but not recognized as to reality, the assignment not being acknowledged or required by laws of state. Mills v. Fisher & Co. (C. C. A.) 159 F 897.\*\*

**95.** In re Niagara Radiator Co., 164 F 102.\*\*

**96.** Partly paid up life insurance policies with usual contingencies and provisions for changing beneficiaries and as to surrendering policies and _receiving benefits_ thereof are treated as assets of a bankrupt. In re Whelphey, 169 F 1019. In New York a policy payable to bankrupt's wife If living at time of his death, under which bankrupt may change beneficiaries without her consent, which provides for payment to him when he reaches a specified age and has a present cash surrender value, is properly of bankrupt's estate to the extent of the surrender value at time of filing petition. In re Wolff, 165 F 984.\*\*

**97.** In re Wolff, 165 F 984.\*\*

**98.** Trustee held to have succeeded to rights of bankrupt under executory contract by virtue of adoption thereof by re- they examine beneficiaries without her consent, which provides for possession of property rented by the bankrupt but must pay rent therefor.8 He does not however take title to property of third parties in possession of bankrupt,9 nor is he vested with any rights in property previously transferred by the bankrupt 10 unless such transfers are void under the provisions of the bankrupty act 11 or as made in fraud of creditors.12 Money advanced by a creditor with a view to a compromise settlement between the bankrupt and his creditors does not pass to the trustee.13

Footnote 12: http://www.stat.uc.edu/~hub/

\_Property fraudulently conveyed.14--The power of the trustee to attack fraudulent conveyances, whether made by bankrupt or through third persons,15 is conferred by the bankruptcy act 12 as well as by the laws of many of the states.17 The

Footnote 25: http://www.

cause of action accrues to the trustee upon his appointment,\[18\] and the return of an execution nulla bona is not essential to its maintenance.\[19\] The trustee cannot avoid a fraudulent transfer participated in by the sole creditor of the bankrupt,\[20\] or any transfer made in good faith and for a present consideration.\[21\] The fact, however, that the transfer was made to pay an honest debt does not validate it if in fact made with intent to defraud creditors,\[22\] which intent may be inferred from circumstances surrounding the transaction.\[23\] The bill in an action by a trustee to set aside a fraudulent transfer should allege that the property of the bankrupt is insufficient to pay his debts in full.\[24\]

(SS 10) B. _Nature of trustee's title in general and rights remaining in bankruptcy.\[25\] See 11 C. L. 392_-Except as to transfer made in fraud of creditors\[26\] and those rendered invalid by the provisions of the bankruptcy act\[27\] and as to rights vesting in trustee by virtue of the fact that he represents the general creditors of the bankrupt estate,\[28\] the trustee is vested with no better title than that held by the bankrupt at the time of the filing of the petition\[29\] or upon the date of the

empower trustee to attack as fraudulent a chattel mortgage given by the bankrupt but not recorded for a year nor up to five days before the filing of the petition, the bankrupt remaining in possession of the stock mortgaged. In re Hickerson, 162 F 345. Trustee may sue under Rev. Laws 1902, c. 118, f 73, to recover from beneficiaries and assignees of insurance such amounts as bankrupt may have paid in premiums in fraud of his creditors. Bailey V. Wood \[Mass.\] is NE 149. In such an action, recovery may be had though it be not present-ly enforceible and may, by reason of the contingent nature of the rights of beneficiaries or assignees who may never receive anything on the policles, never become enforceible, the trustee having right, despite contingent nature of defendants' liability, to have hla claim against them settled. See Rev. Laws 1902, c. 159, s. cl. 7, relative to creditor's bills. Id. In such a suit insurance company is not a necessary party, and trustee may protect himself either by making company liable or by giving statutory notice. Id.

18. Action by trustee to set aside a fraudulent conveyance of property by bankrupt is not a cause of action arising before the adjudication in bankruptcy or appointment of trustee, under Code Civ. Proc. 8 3268, subd. 4, authorizing defendant in such action to demand security for costs. Riker v. Gwynne, 116 NYS 10.

01. Riker v. Gwynne, 116 NYS 10.

01. Crefitor held legal title as security for loan and transferred to defendant who paid balance due on loan. Parker v. Travers \[N. J. Err. & App.\] 71 A 612. Fact the conveyance was made in payment of an honest debt is immaterial if transfee participated in procuring transfer to defraud creditors of transferror. Id.

01. In re Farmers' Supply Co., 170 F 502. Mortgage given by bankrupt to secure accomodation Indorsers held given in good faith and not in contemplation of, or in fraud of, bankruptcy act nor with intent to hinder, delay and defraud creditors. Id.

01. Parker v. Travers \[N. J. Err. & App.\] 71 A 612. Evidence held sufficient to show that transfer was made to hinder, delay and
    adjudication,\* nor are his rights in the contracts of the bankrupt greater than were those of the bankrupt.\[31\] He does not take title as against creditor exercising the right to reseind a sale for fraud.\[32\] The bankrupt retains title, free from the rights of creditors whose claims are provable,\[33\] to all property not available to the trustee. Property held in trust for bankrupt, not passing to the trustee, is not by conveyance to bankrupt after his discharge rendered subject to debts thereby discharged, though trustees purposely delayed the conveyance.\[34\] When pending bankruptcy proceedings property of the bankrupt is sold as perishable by order of court in attachment proceedings, a bona fide purchaser without notice at the attachment sale takes a good title, and the trustee's only resort is to the proceeds of such sale.\[35\] The trustee's discharge terminates his authority over the property.\[36\]

(SS 10) \_C. The trustee takes title free from liens.\[37\] See 11 C. L. 380--The trustee takes title to the bankrupt's property free from all liens created within four months of the filing of the petition,\[38\] and where recordation is essential to the existence of the

553. No title to property held in trust by bankrupt. Ferguson v. Bauernfeind \[Vis.\] himself in such position that he could not 121 NW 647. Transaction held a lease to pay theretor, and immediately after delivery disclosed to his creditors his insolvent conselosor to reclaim property covered by lease - from trustee. McEwen v. Totten \[C. C. A.\] 164 F 837. Trustee held to have acquired no rights under levy made by bankrupt on - cash register leased to judgment debtor, the bankrupt having knowledge of character of - judgment debtor's possession and that cash register was held by him under conditional sale contract. In re Greek Manufacturing & Enterprising Co., 167 F 424. Assignments and pledges held with authority of officers of corporation and binding on trustee. In re Cincinnati Iron Store Co. \[C. C. A.\] 167 - 486. Where a corporation takes property subject to existing chattel mortgages and subsequently is adjudicated bankrupt, the trustee cannot question the validity of the mortgages because of defects in recordation - thereof. In re Columbia Fireproof Door & - Term Co., 168 F 159. Under Code Civ. Proc. - & 2469, title to a judgment debtor's property - & lien, the four months's period commenees to run only from the date of recordation.\[89\] His title, however, is subordinate to any valid liens \[40\] acquired more than four months prior to the time the petition is filed,\[41\] or any lien acquired within four months of the filing of the petition, but at a time when the bankrupt was solvent.\[42\] There is some conflict in the state courts as to the inherent effect of bankruptcy proceedings upon liens attaching within four months prior thereto, it being held on the one hand that the liens \[43\] are ipso facto destroyed, and on the other that the trustee alone can invoke the provision of the act relative to the vacation of liens,\[44\] and such would also seem to be the effect of the holdings that the trustee is abrogated to liens already obtained by creditors.\[45\] Local laws are controlling on the question as to what constitutes a lien to which the trustee is subrogated.\[46\] Where a lienor releases his lien in order to enable the bankrupt to dispose of the property, he is liable to the estate for any loss thereby incurred by the creditors.\[47\]

ruptcy takes no title. Wrede v. Clark, 117

NYS 5, rvg. Wrede v. Gilley, 61 Mise, 530,

113 NYS 609. Rule applied as against creditor

lien has been transferred. Copper Belle

claiming property under alleged conditional

Min. Co. v. Costello \[Ariz.\] 100 P 807.

sale contract. Reardon v. Rock Island Flow

Mortigage may hold as against trustee in

Co. \[C. C. A.\] 168 F 654. Garushment held

bankruptcy, even though he takes possess-

within provision vacating liens acquired

sion of boat within four-month period,

within four months. Longley Brovs, V. McCann \[Ark.\] 119 SW 268. Garushment pro-

commeenement of such period. Woods v.

ceedings under Act June 4, 1991, 82, P. L. Klein \[Pa.\] 72 A 523. Equitable Item of

421, by subcontractor or material man, held

railroad company on unlimited coal for ad-

within provision of bankruptcy act invalidating

in liens obtained within four months' period

by "legal proceedings." Fairland v. Smed-

Ed. ....

ley Const. Co., 36 Pa. Super. Ct. 17.

39. Where record is essential to validity of

chatell mortgage as against creditors, time

runs from date of record. In re Hickerson,

162 F 345. Purchase contract not recorded

until within few months of bankruptcy un

der which vendor exercised right to take

possession of business upon nonpayment of

instalment of purchase price held invalid as

against trustee representing creditors whose

claims were created before recordation of

contract. McElvain v. Hardesty \[C. C. A.\] 168 F 31. Reardation of bill of sale exec

cuted for more than four months prior to

bankruptcy after bankruptcy has intervened

is unavailing. In re Burtlarge Brovs, 169 F 1006.

40. Agreement by bankrupt giving bank

Item on proceeds of sale of cattle in

consideration of advances to be used in purchase

of cattle held not invalid as against trustee

because not recorded. Gardner V. Planners'

Nat. Bank \[Tex. Civ. App.\] 118 SW 1146.

41. In re Maher, 169 F 997. Creditor commeneed garushment proceeding more than

four months prior to bankrupt

Garushse

fed more than enough to satisfy claim

suit. Bankrupt gave bond to dissolve

rishment depositing $1,000 with sureties to

protect them against loss. Held creditor

acquired llem under Laws Ga. 19 Ct. p. 55. Id.

That judgment filed more than four months

prior to bankruptcy was stayed by super-

cedeas does not render it ineffective as

against bankruptcy proceedings. Stay does

not operate to vacate judgment. Booker

v. Bythe \[Ark.\] 118 SW 401. As against

bankruptcy on intermediate attachment

and judgement, lien of attachment is created

when levy is made. Jackson v. Valley Tie

& Lumber Co., 108 VA. T14, 82 SE 964. Bankruptcy proceedings do not affect the prior

llem of a mortgage on property covered by

10C.

117

lien, the four months's period commenees to run only from the date of recordation.\[89\] His title, however, is subordinate to any valid liens \[40\] acquired more than four months

prior to the time the petition is filed,\[41\] or any lien acquired within four months of

the filing of the petition, but at a time when the bankrupt was solvent.\[42\] There

is some conflict in the state courts as to the inherent effect of bankruptcy

proceedings upon liens attaching within four months prior thereto, it being held on the one hand that the hens \[43\] are ipso facto destroyed, and on the other that the trustee alone can invoke the provision of the act relative to the vacation of liens,\[44\] and such would also seem to be the effect of the holdings that the trustee is subrogated to liens already obtained by creditors.\[45\] Local laws are controlling on the ques-

\*tion as to what constitutes a lien to which the trustee is subrogated.\[46\] Where a

lienor releases his lien in

## 10.1 **Summary**

### 10.1 **Summary**

The _Summary_ of the 13 Cur. Law. BANKruptCY SS 10E. 459

(SS 10) _E. Preferential transfers and payments. \[67\] See 11 C. L. \[80\] --Transfers or payments made by an insolvent \[68\] of or out of his assets \[69\] nor exempt from execution \[60\] or otherwise unavailable to the trustee, \[61\] within four months prior to the filing of the petition in bankruptcy, \[62\] with intent to prefer, \[63\] and to a creditor having reasonable cause to believe the bankrupt insolvent or having knowledge of such insolvency \[64\] or that a preference was intended, \[65\] and the effect whereof is:_

57. Search Note: See notes in 7 C. L. 406; by the trustee. Vitzthum v. Large, 162 F 8 Ann. Cas, 280. \[65\]. See, Also, Bankruptcy, Cent. Dig. SS 247- 641; Dec. Dig. SS 158-218; 5 Cyc. 346, 347. \[63\]. See, Dig. SS 158-218; 5 Cyc. 346, 347. \[64\]. See, Dig. SS 158-218; 5 Cyc. 346, 347. \[65\]. See, Dig. SS 158-372, 415. \[66\]. See, Dig. SS 158-218; 5 Cyc. 346, 347. \[67\]. See, Dig. SS 158-218; 5 Cyc. 346, 347. \[68\]. See, Dig. SS 158-372, 415. \[69\]. See, Dig. SS 158-372, 415. \[70\]. See, Dig. SS 158-372, 415. \[71\]. See, Dig. SS 158-372, 415. \[72\]. See, Dig. SS 158-372, 415. \[73\]. See, Dig. SS 158-372, 415. \[74\]. See, Dig. SS 158-372, 415. \[75\]. See, Dig. SS 158-372, 415. \[76\]. See, Dig. SS 158-372, 415. \[77\]. See, Dig. SS 158-372, 415. \[78\]. See, Dig. SS 158-372, 415. \[79\]. See, Dig. SS 158-372, 415. \[80\]. See, Dig. SS 158-372, 415. \[81\]. See, Dig. SS 158-372, 415. \[82\]. See, Dig. SS 158-372, 415. \[83\]. See, Dig. SS 158-372, 415. \[84\]. See, Dig. SS 158-372, 415. \[85\]. See, Dig. SS 158-372, 415. \[86\]. See, Dig. SS 158-372, 415. \[87\]. See, Dig. SS 158-372, 415. \[88\]. See, Dig. SS 158-372, 415. \[89\]. See, Dig.

BANKruptY SS 10E.

13 Cur. Law.

itor's knowledge of debtors .insolvency. \[ Creditor of bankrupt corporation, who as Grannt v. Powers Lry Gods Co. \[S. D.\] 121 \[\]Treasure thereof made payment to himself NPV 95. Creditor taking possession of all while bankrupt was obviously insolvent, of bankrupt's pr.perty in payment of his held to have reasonable cause to believe debt held chargsable with knowledge of preference was intended. Evans V. Glankrupt's insolvent condition. McElvain ridge, 137 Wis, 218, 118 NPV 808. Evidence v. Hardesty \[C. C. A.\] 169 F 31. Vendor of business took promissory notes for all but ground to believe that preference was intended, it appearing that his claim was that the cash payment represented vendees' paid in full by transfer of only remaining cashre assets. Contract of sale provided for resideration of business to vendor upon non- carried on under extraordinary circumvent-payment of any note. Contract was not tamedes and concealed from other creditors. recorded until within four months of bank- Whitwell v. Wright, 115 NYS 48. Creditor rupture. Held that, at time of recordation employed as bookkeeper by bankrupt held and subsequent taking of possession by vendor, latter had reasonable cause to be. \[\]Treasure bankrupts insolvent. Id. Representative of creditor examined bankrupt's books and found assets largely in excess of debts. \[\]Treasurement of a week later bankrupt's stock was destroyed by fire, but fully covered by insurance, part of which was transferred to creditor. Held reasonable cause for belief that preference that creditor had no knowledge of bankrupt's insolvent condition. In re Neill: Pinckney-Maxwell Co., 170 F 481/ Mere grooft that creditor was anxious about his claim and desired security does not estab- to collect debt, together with statement of insolvent condition. Sharpe v. Allender IC. \[\]Treasurement of a week later bankrupt's stock was destroyed by one creditor receives one-third of his of agreement not to record chatel mort- cigaign with the result that other creditors get nothing held to raise conclusive pre-credition of bankrupt's insolvent condition. \[\]Treasurement of a week later bankrupt's apparent need of money and unusual character of trans-fefe into slow reasonable cause for transfer to believe preference was intended. Brewster v. Offt tamede Co., 164 F 124. Transaction whereby one creditor receives one-third of his claim with the result that other creditors get nothing held to raise conclusive pre-sumption that preference was intended by bankrupt. Id. Bankrupt's apparent need of money and unusual character of transfefe into slow reasonable cause for transfer to believe preference was intended. In re Bailey, 166 F 982. \[\]Treasurement of a week later bankrupt to prefer to find reasonable cause to believe that evidence was intended. Getts v. James-ville Wholesale Grocery Co., 163 F 417. \[\]Treasurement of a week later bankrupt is neither to give to one creditor a larger percentage of his claim than is received by other creditors of the same class,\[66\] are voidable at the instance of the trustee.\[67\] The mere fact that the creditor was aware of the bankrupt's insolvent condition does not render the transfer preferential \[68\] unless the circumstances are such that a preference would be the natural result of the transfer,\[60\] in which event evidence of express intent is unnecessary.\[70\] Facts which would put a reasonable man upon inquiry may be considered in determining whether the creditor had reasonable cause to believe that a preference was intended,\[71\] and the creditor is chargeable with such knowledge as reasonable inquiry would disclose \[72\] though it has been proper. Blyth & Fargo Co. v. Kastor account it was owing first corporation, de-\[Vyo\]. 97 T P 921. \[68\]. Effect of alleged preference must be sojvesty and an intent to prefer. Held a to give creditor a greater percentage of his debt than any other preferred creditor. V. National Herkimer County Bank, 163 F Blyth & Fargo Co. v. Kastor \[Vyo\]. 97 P 920. \[71\]. Transfer by insolvent whereby one creditor receives a larger percentage of his claim than other creditors of same class omnitites preference. Kahn & Bro. v. Bledsoe \[OKL\] 98 P 921. Agreement made by bankrupt and principal creditors at time 0.541, 876, 30 Stat. 564 (U. S. Comp. St. when both bankrupt and creditors believed it solvent, whereby business was transferred to third party to operate for benefit of creditor which could in no manner reset where property is situated are void suit in preference being obtained by any creditor, held not preferential. Gill v. Bell's Knitting Mills, 128 App. Div. f 691, 113 NNS 90. \[67\]. Evidence held to show that chattel enterprise with record until few days before bankrupt of mortgager was a preferential transfer. In re Hickerson, 162 F 1345. \[Transfer of property to accomodation maker of note to bankrupt to protect him against loss, within four months of bankrupt, constitutes preference. In re Bailey, 166 F 982. Transfer of property to accommodation maker of note to bankrupt, in apparent pursuance of previous agreement that amount of note would be taken in trade, held a preference, properly transferred being different from that ordinarily used by accommodation maker and in larger quantities than necessary for his present use. Id. Evidence held to sustain finding that trustee appropriated funds of estate to his own use and that payment by trustee to himself as trustee within four months of his own bankruptv was preferred. Block v. Rice, 167 F 932. Payment made by bankrupt to his brother two days before bankruptv, in re payment of loan made for specific purpose and to be returned. If not used for that purpose, held preferential, the bankrupt, though not using funds for purpose designated, having mixed them with his general funds and are appropriated them to other uses. In re Hearney, 167 F 995. \[72\]. Payments made by bankrupt to his attorney, with the four-month period, for services previously rendered, so far as their preferential character is concerned, stand upon the same ground as the claims of other creditors. In re Shlebler & Co., 163 F 545. \[Note by corpora- tion to another corporation, both having officers and directors in common. Second corporation indorsed note and discounted it at defendant bank. Subsequently second corporation, whilis both were insolvent, paid note and deducted sum thereof from -162 BANKRUPTCY $ 10E. 13 Cur. Law.

held that the mere fact that creditor knew of the existence of such conditions do not establish knowledge of an intent to prefer. \[74\]

The four months period is computed from the time of payment \[74\] or transfer, \[75\] or, where recordation is necessary, from the time the instrument evidencing the transfer is recorded, \[76\] and the theory that the transfer was pursuant to a previous agreement is unavailable where such agreement was merely conditional and never became operative in law. \[77\] A transfer made to secure a debt previously otherwise secured is not preferential, \[78\] nor can the setting off of mutual debts as between the bankrupt and his creditor \[79\] in good faith \[80\] or a transfer, by way of security, \[81\] or conveyance, \[82\] made for a present consideration, or the repayment of

cause to belleve bankrupt insolvent he is \[Lynn Camp Coal Co., 168 F 998, Seiler of charged only with such information as \[Lynn Camp Coal Co., 168 F 998, Seiler of could be obtained by reasonable inquiry, \[Lynn Camp Coal Co., 168 F 998, Seiler of\] In re Wolf Co., 164 F 448. Not charged with knowledge which could be ascertained by \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Coal Co., 168 F 998, Seiler of\], or \[Lynn Camp Co., 168 F 998, Seiler of\], made for a present consideration, or the repayment of

cause to belleve bankrupt insolvent he is \[Lynn Camp Coal Co., 168 F 998, Seiler of\], charged only with such information as \[Lynn Camp Co., 168 F 998, Seiler of\], could be obtained by reasonable inquiry. \[Lynn Camp Co., 168 F 998, Seiler of\], who accepts \[Lynn Camp Co., 168 F 998, Seiler of\], who accepts \[Lynn Camp Co., 168 F 998, Seiler of\], could be obtained by reasonable inquiry. \[Lynn Camp Co., 168 F 998, Seiler of\], who accepts \[Lynn Camp Co.

.3 Cur. Law. BANKRUPTCY SS 11B. 463

funds held by bankrupt in trust,88 be assailed as preferential, but it is not necessary that the favored party have a claim provided against the bankrupt's estate in order to create a preference.84 In determining whether a bankrupt is insolvent other causes of action in the trustee for the recovery of alleged preferential payments cannot be considered.85 The trustee's right to the property may be based solely on a state law,88 as where a state statute renders individual property of a partner equally liable for partnership debts and a partner in a bankrupt firm has made a preferential transfer.87 Demand by the trustee is not a condition precedent to his right to recover property covered by preferential transfer,88 but, unless assailed by him, the transfer will stand.89 The validity of securities challenged as preferential may be determined before they have been converted into money.90

SS 11. \_Collection, reduction to possession and protection of property. A. Discovery.91_See S C. L. 386

(SS 11) \_B. Compelling surrender by bankrupt.92_See 11 C. L. 397--Bankruptcy courts have summary jurisdiction to compel the surrender of property withheld by the bankrupt.93 The correct proceedings to compel the bankrupt to surrender property is by petition,94 making definite averments upon the subject 95 and offering a definite issue,90 to which petition the bankrupt is entitled to reply,97 and upon the issue thus raised both parties have the right to offer evidence.98 In the absence of fraud or concealment, the court should not order a surrender which appears to be physically impossible,98 even though such impossibility arises after the filing of the report and findings showing the bankrupt's possession.1 The pro-new consideration for mortgage based on partnership creditors to avoid preference disaIfrmance of sale of goods to bankrupt for misrepresentations and new sale thereof creditor being only individual creditor and therefor entitled on distribution in assimiled. Blyth & Fargo Co. v. Kastor IVyo. 97 P 921. 82. Transfer of property by bankrupt held to have been made pursuant to contract therof and to constitute a bona fide law. Id. 88. Moody v. Chicago Title & Trust Co., though payment therefor was made before delivery. Mills v. Virginia-Cardiina Lumber Co. \[C. C. A.\] 164 F 168. Dellivery of property by bankrupt held made pursuant to contract whereby title thereof passed to purchaser who had made advance payments thereon, and not to constitute a preference. Id. 83. Ferguson v. Bauernferind \[Wis.\] 121 NW 647. 84. Contingent liability as guarantor for bankrupt is sufficient. Moody v. Chicago Title & Trust Co., 138 Ill. App. 233. 85. Other causes of action to recover preferential transfers cannot be considered in determining insuffciency of bankrupt's estate to pay his debts. Coer v. Bradley's Bank of Mystic \[Iowa1\] 11 NW 614. Evidence of such commencement of action theorem indamissible. Id. 88. Miller v. New Orleans Acid & F. Co., 211 U. S. 49, 53 Law. Ed. 300. 87. Miller v. New Orleans Acid & F. Co., 211 U. S. 49, 55 Law. Ed. 300. Trustee for bankrupt firm may assume prosecution of pending suit by firm creditors to avoid preference by partner. Id. Not necessary to show existence of other individual credits ors in order to authorize firm's trustee to prosecute suit instituted in state court by the bankrupt. 88. 89. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 98. In re Ruos, 164 F 749. 98. In re Ruos, 164 F 749. 98. In re Ruos, 164 F 749. May offer not only evidence already taken, but also such further evidence as may be relevant. Id. 99. In re Ruos, 164 F 749. 98. 1. In re Ruos, 164 F 749. After lapse of seven years from filing of report and fin1ings, it was improper to make order for ceedings to recover property concealed by the bankrupt are directed to the recovery of specific property 2 and the petition must be definite 4 and should allege that the failure to turn over the property was willful.4 Irregularities in the petition may be waived.5 The court in determining whether the bankrupt has concealed property and is withholding it from his trustee may resort to figures showing what property he had on hand prior to the bankruptcy proceedings and those showing what portion of his property has been used or disposed of,5 and charge him with any discrepancy existing between such figures.' The order must be supported by the petition,5 and evidence showing that the property is in his possession or under his control,5 and should require the bankrupt to turn the property over to the trustee,10 or to show cause why he should not be punished for contempt.11 It must specify the property to be turned over 12 as to amount and character 18 as well as the location thereof.14 It has been held, however, that a general description of the property is sufficient.15 The order should not as an alternative require the bankrupt to pay the value of the property,16 though it may specify the value thereof for the purpose of indicating the extent of the property to be turned over.17 As already suggested in connection with the terms of the order, failure of the bankrupt to comply with the order may be punished as for contempt of court,18 or under the provisions of the bankruptcy act.19 A petition by bankrupt to review the * 13 Cur. Law. BANKruptcy SS 11D.

- order involves the same question as a citation for contempt. \[20\] While the bankrupt must be given an opportunity to be heard, \[21\] the proceedings are not within the sixth amendment of the federal constitution \[22\] and ex parte affidavits may be used. \[23\] The court should be satisfied that the refusal to comply with the order was willful, \[24\] but a mere denial under oath of control of the property will not purge the alleged contemnor. \[25\] When the trustee is unable to prove in contempt that the failure of the bankrupt to turn over property was willful, he may pursue any civil remedy afforded by the law. \[26\] (SS 11) _C. Property in possession of officer appointed by state courts. \[27\] ...See \[11\] c. L. \[97\]_--\_The bankruptcy court may enforce the trustee's title and right of possession as against a receiver appointed by a state court. \[28\] (SS 11) _D. Summary proceedings against third persons. \[29\] ...See 11 C. L. \[97\]_--\_The power of courts of bankruptcy summarily to compel the restitution of property in the hands of third persons \[30\] is limited to property held by such persons under a merely colorable claim of right \[31\] as distinguished from an adverse claim thereto preferred in good faith, \[32\] the remedy in the latter case being in a plenary action against the adverse claimant \[33\] whose right to have the matter so determined is not waived by appearance in the summary proceedings, \[34\] but the court has jurisdiction in all cases to determine whether or not the claim is real or merely colorable \[35\] and to decide upon the right to immediate possession as between third persons and the receiver from whom such property was taken, \[36\] and, where the claim appears to be without merit or legal foundation, the property should be treated as belong- c. 541, SS 2 (U. S. Comp. Stat. 1901, p. 3420).
- In re Cole \[C. C. A.\] 163 F 180.
- 20. In re Adler, \[170 F 634.
- 21. In contempt for failure to obey order to turn property over to the trustee that record should show that an issue was made
- In some way on the question of contempt
- and that the alleged contemnor had an opportunity to be heard with reference thereto. In re Cole \[C. C. A.\] 163 F 180.
- 22, \[23. In re Cole \[C. C. A.\] 163 F 180.
- 24. In re Cole \[C. C. A.\] 163 F 180. Evidence held insufficient to show that bankrupt had control of property and that reveal to turn it over was willful. Id.
- 25. In re Lasky, \[163 F 99.
- 26. In re Cole \[C. C. A.\] 163 F 180. Any civil remedy for collection of judgment from debtor who is insolvent or claims to be so. Id.
- 27. Search Note: See Bankruptcy, Cent. Dig. 1 225-229, 237; Dec. Dig. 1 144.
- 28. Heecox v. Rollestone \[C. C. A.\] 164 F 823.
- 29. Search Note: See note in 5 Ann. Cass.
- 304: 11 Id. 932.
- See, also. Bankruptcy, Cent. Dig. 1 148-155, 164-184, 624; Dec. Dig. 1 106-117.
- 30. Where third party, ruled to show cause why he should not turn certain property belonging to bankrupt over to trustee of bankrupt, answers that he has no such property in his possession, referee has no power summarily to try issues thus joined. In re Gibson \[Ok1\]. 98 P 923.
- 31. In re Holbrook Shoe & Leather Co., 165 F 973.
- 32. Where third person prior to bankruptcy obtains property of bankrupt which he claims in good faith as owner, referee has no jurisdiction to determine his right thereto. In re Walsh Bros., 163 F 352.
- 13 Cur. L. \[... 30\].
- 33.

ing to the bankrupt.\[37\] The court has no jurisdiction over property of a third person mortgaged to secure the bankrupt's debts,\[38\] except to see that its proceeds are applied on the debt proved,\[39\] nor can the court require repayment by an attorney for a creditor of money by him collected from the bankrupt and paid over to the creditor.\[40\] A decree ordering restitution of property is conclusive in a proceeding to punish for failure to comply therewith.\[41\] The bankruptcy court has jurisdiction to make a call upon stockholders of a bankrupt corporation.\[42\] One joining in a petition in bankruptcy as a creditor cannot afterwards in contempt proceedings, based on his refusal to turn over property, claim to sustain the relation of bailor with reference to the property upon which his claim as creditor was predicated.\[43\]

(SS 11) _E. Actions to collect or reduce the property to trustee's possession.\[44\]_ See 11 C. L. 898--Except in cases of fraudulent conveyances,\[45\] the trustee can recover only such property as the bankrupt could have contracted and collected personally at the time when his rights passed to the trustee.\[46\] An action to recover a preference is not a proceeding in bankruptcy.\[47\] Creditors, acting in pursuance of a common plan to obtain property before the appointment of a receiver, are jointly liable for the value of the property so taken,\[48\] and, where property, preferentially transferred, cannot be restored in kind, the trustee may recover its value.\[49\] The trustee may, with the approval of the court, compromise any controversy arising in administration of the estate on such terms as he deems best for the interest of the estate.\[50\] The trustee of a tenant in common is not authorized to sue for par-

**SS7.** Surrender to court or trustee should be required. In re Holbrook Shoe & Leather as a balice. Id. Co., 165 F 973. Where property in possession of receiver is taken by adverse claim-

**A.** In re Munger Vehicle Tire Co. \[C. C.\] and sold, referee has power to order claimant to turn proceeds of sale to trustee regardless of whether property was taken with or without consent of receiver. In re Rose Shoe Mfg. Co. \[C. C.\]. L168 F 33. Where third party holds property at time of bankrupt merely as agent or ballee of the bankrupt. referee has power summarily to require him to turn it over to trustee. In re Walsh Bros., 163 F 352. Evidence held to justify finding that property held by defendant corporation belonged to bankrupt and that corporation was organized principally to take over assets of bankrupt for purpose of hindering, delaying and defradrading creditors and to justify order of referee requiring defendant to turn over property to trustee. In re Holbrook Shoe & Leather Co., 165 F 973.

**SS8.** In re Graves, 163 F 358. Failure of holder of mortgage to submit property to court for valuation does not deprive him of right to prove his claim for deficiency Id. Fact that creditor sets forth in his proof of claim that claim is secured by mortgage on property belonging to third party does not give bankruptcy court jurisdiction over mortgaged property. Id.

**SS9.** In re Graves, 163 F 358.

**40.** Attorney collecting money on claim placed in his hands before he is retained by bankrupt is, in absence of fraud, justify fled In paying it to his client, though then employed by estate. In re Martin & Co. 167 F 236.

**41.** In re Strobel, 163 F 380. Contemont cannot escape by showing that in priqion proceeding he, by mistake as to his legal tition,"1 in the absence of a showing that partition is necessary to fully protect the rights of creditors."22

_Jurisdiction._ See 11 C. L. 399--The jurisdiction of the bankruptcy court as to rights claimed under the bankruptcy law is exclusive."33 The district court has jurisdiction of an action by a trustee in bankruptcy of a corporation against several defendants to recover stock subscriptions."44 Actions for the recovery of preferential payments or transfers are legal in their nature,"55 and can be brought in equity only when embracing some feature peculiarly within the province of courts of equity."56 They may be brought in either the state courts 57 or the courts of bankruptcy,"58 and when brought in the former are governed by the state laws."69

_Limitations and laches._ See 11 C. L. 398--The trustee's laches in suing is not available on appeal where it was not raised below."60

_Parties._ See 11 C. L. 399--The trustee has power, to the exclusion of the bankrupt and the creditors,"1 to sue for the recovery of assets belonging to the estate of the bankrupt."62 Where, in an action to recover property seized by the sheriff after institution of bankruptcy proceedings and sold, the trustee waives the tort and sues the attaching creditor in assumpist, the sheriff is not a necessary party."63 The wife and children of the bankrupt are necessary parties to a proceeding by the trustee to reach land devised in trust for the bankrupt and his wife and children."64 One of three trustees may be sued by the remainder for matter occuring prior to bankruptcy creating liability to creditors of the bankrupt."65 A trustee in bankruptcy for a partner cannot maintain an action for partnership funds so long as the partnership remains unsettled."66

_Pleading._ See 11 C. L. 399--Where property is seized under execution after the filing of the petition and sold, the trustee may waive the tort and sue in assumpist."67 A petition by the trustee asserting the bankrupt's right to property by devise must show that the petition in bankruptcy was filed subsequently to the death of the testator."68 A complaint, containing only general allegations, is sufficient as against a general demurrer,"69 but where the allegations as to proceedings leading to the

ments and the payment into estate for distribution among creditors of $25,000. In re L:Inderman, 166 F 593.

51. Sale of bankrupt's interest may be had without partition. Hobbs v. Frazier \[Fla.\] 47 S 929.

01. Hobbs v. Frazier \[Fla.\] 47 S 929.

01. Admiralty court, having jurisdiction of action in rem before institution of bankruptcy proceedings and having sold vessel, has no jurisdiction to determine the rights of the parties further than admiralty requires and cannot distribute proceeds to creditors of bankrupt. The William B.

Kibbee, 164 F 658.

54. Skillin v. Magnus, 162 F 688.

01. Trustee seeking to recover preferential payments has an adequate remedy at law, and cannot sue in equity. Detroit Trust Co. v. Old Nat. Bank \[Mich.\] 15 Det. Lge. N. 828, 118 NV 729.

56, 57. Detroit Trust Co. v. Old Nat. Bank \[Mich.\] 15 Det. Lge. N. 838, 118 NV 729.

58. Plenary action by trustee to recover preferential transfer. McElvain v. Hardesty \[C. C. A.\] 169 F 81.

01. Proceedings to recover preference. Detroit Trust Co. v. Old Nat. Bank \[Mich.\] 15 Det. Lge. N. 938, 118 NV 729.

01. Grant v. Powers Dry Goods Co. \[S. D.\] 121 NW 95.

01. Trustee alone has power to sue for recovery of property. Schnurman's Ex'x v.

appointment of the trustee are indefinite as to the time and place of such proceedings they are put in issue by a denial on information and belief directed thereto," and such a denial should not be stricken in such a case.\[71\] Credit given the bankrupt after receiving preferential payments may be offset against the trustee's cause of action to recover such payments,\[72\] but only to the extent that such payments are antecedent.\[78\]

_Evidence.\[86\]_ **11 C. L. 400--A** creditor receiving payment from the bankrupt prior to the filing of the petition is under the protection of the presumption that the payment was not preferential,\[74\] and the burden is on the trustee to show all the elements of a voidable preference.\[75\]

The records of the bankruptcy proceedings are admissible,\[74\] but the trustee is required to produce only so much thereof as is necessary to prove the adjudication.\[71\] The adjudication is not conclusive as to the insolvency of the bankrupt at the time of the alleged preferential payment or transfer \[78\] unless such preferential transfer or payment is expressly made the basis thereof,\[79\] nor can the insolvency of the bankrupt at the time of the alleged preferential payment be established by the schedule of the bankrupt filed in subsequent bankruptcy proceedings,\[80\] though the schedules are admissible to show the bankrupt's present insolvent condition.\[81\] The admissibility of testimony is governed by general rules limiting it to such as is competent,\[82\] relevant\[83\] and material,\[84\] conclusions of the witness being excluded.\[85\]

received by sheriff and that proceeds there-

tion on which adjudication was based was

of were paid to judgment creditor. Id.

70, 71. Dittemore v. Cable Mill. Co.

71. In re Larkin, 168 F 100.

72, 73. Price v. Derbyshire Coffee Co., 128

73. 47. 112 NYS 830.
01. 46. 48. 48.

13 Cur. Law. BANKRUPTCY SS 11E. 469

The weight to be given testimony depends upon the character thereof,8\* and the sufficiency of evidence must be determined with reference to the evidence adduced in the particular case.87 General testimony as to bankrupt's financial condition at the time of the transfer is insufficient to establish his insolvency.88 The sufficiency of the testimony to establish the various elements of a voidable preference is elsewhere treated.89

\_Trial and judgment.88e 11 C. L. 400_Instructions to the jury should not be misleading,90 should be based on the evidence,91 and should limit testimony to the issues to which it is relevant.82 The findings should support the judgment,93 and should not grant recovery of more than the creditor received by way of the preferential payment.94 Where the findings are inconsistent, a specific finding controls.95 Where the trustee intervenes in an action by a creditor to recover assets assigned by the bankrupt, he is not bound by a dismissal by the creditor.95

tent of mortgage assailed. Id. Evidence of disposition of property from which money preferentially paid was raised held admisible on issue of value of such property. that evidence established insolvency of grant v. Powers Dry Goods Co. (S. D.) 121 NBV 95. Evidence of bankrupt's habits held admissible as tending to show what would have been discovered by inquiry. Id. 84. Testimony of bankrupt that at time of transfer he had not enough money to play his bills held inadmissible as tending to confuse jury on question of insolvency. 82. Where testimony is relevant only as trenous because followed by inquiry whether he knew he was insolvent which was answered in affirmative. Blyth & Fargo Co. v. Kastor \[Wyo.\] 97 P 921. Admission of immaterial conversation between bankrupt and his agent held harmless error. Grant v. Powers Dry Goods Co. (S. D.) 121 NNV 95. 85. Testimony of wife of bankrupt that she had conversations with her husband from which she concluded they had more debts than assets and told him so held inadmissible for purpose of showing insolvency, it being a mere conclusion. Blyth & & & Fargo Co. v. Kastor \[Wyo.\] 97 P 921. Admission of immaterial conversation between bankrupt and his agent held harmless error. Grant v. Powers Dry Goods Co. (S. D.) 121 NBV 95. 85. Testimony of wife of bankrupt that she had conversations with her husband from which she concluded they had more debts than assets and told him so held inadmissible for purpose of showing insolvency, it being a mere conclusion. Blyth & & Fargo Co. v. Kastor \[Wyo.\] 97 P 921. Admission of immaterial conversation between bankrupt and his agent held harmless error. Grant v. Powers Dry Goods Co. (S. D.) 121 NBV 95. 85. Testimony of wife of bankrupt that she had conversations with her husband from which she concluded they had more debts than assets and told him so held inadmissible for purpose of showing insolvency, it being a mere conclusion. Blyth & & Fargo Co. v. Kastor \[Wyo.\] 97 P 921. Admission of immaterial conversation is secretary thereof made payment to himself at time when bankrupt was obviously insolvent supports judgment for recovery of payment though there is no specific finding that he had reasonable cause to believe bankrupt insolvent. Evans & Clarke, 137 Wis., 218, 118 NBV 803. 94. A. held legal title and equity in one-third of certain property which he conveyed to owner of remander, subject to marriage. Property destroyed by fire and transferee collected insurance money and paid incumbrance. Held that, upon setting aside the conveyance in bankrupt, the transferee could be held to account only for one-third the amount left after discharge of the mortgage. Parker v. Travers \[N. J. Err. & App.\] 71 A 612. Where at time of receiving preferential transfer creditor paid bankrupt's difference between value of property transferred and his debt, he cannot be held liable for value of entire property transferred. McElwain v. Har-desr \[C. C. A.\] 169 F 31. Where transfer of business to creditor was held preferntial, it was error to allow recovery by trustee of value of good will, the evidence tending to show that, at time of transfer, business had no good will. Id. 95. Specified finding as to date of alleged preferential payment controls conflicting finding merely recapitulating notes of bankrupt with their dates of payment. Evans V. Claridge, 137 Wis. 218, 118 NBV 803. 88. After reversal of judgment for creditor. Tharp v. Tharp's Trustee \[Ky.\] 119 SV 814.

470

BANKRUPTCY SS 11F. 13 Cur. Law.

\_Costs.\_See * C. L. 391_Trustee is entitled to costs upon setting aside a conveyance as fraudulent.97 A trustee is not liable for the costs of an action by or against the bankrupt when he has not intervened therein or where he had the approval of the federal court to such intervention.98

(SS 11) \_F. Claims not reduced to possession by the trustee.99_See 11 C. L. 400 The fact that the trustee does not reduce property to his possession cannot strengthen claims of third parties thereto 1 or deprive creditors of the right to proceed against it after termination of bankruptcy proceedings.2

'SS 12. \_Protection of trustee's title and possession._See 11 C. L. 400_--A court of bankruptcy may restrain proceedings by a landlord to oust the trustee where such action would result in serious injury to estate,4 on the other hand, the trustee cannot obtain relief as against a mortgage foreclosure sale resulting in a deficiency judgment against the bankrupt, where he has not acted with due diligence and the granting of relief would result in injury to innocent parties.5 The state courts have no jurisdiction of an action in replevin against a trustee in bankruptcy.9

\_Rights of trustee in actions pending by and against bankrupt.\_See 11 C. L. 400 The trustee may be substituted as a party plaintiff to actions brought by the bankrupt and pending at the time of his appointment.7 but the trustee should not be substituted in a pending suit by or against the bankrupt until he has obtained permission from the federal court.8 The effect of bankruptcy on pending actions is treated in a previous section.9

\_Sulis against trustee._See 11 C. L. 400_--The trustee may be sued in state courts for the recovery of money wrongfully paid over to him,10 without the consent of the bankruptcy court.11 The district courts as a court of bankruptcy has jurisdiction of an action to create or restore a lien on property, the title to which is in the trustee.12

97. Parker v. Travers \[N. J. Err. & App.\]

71 A 612.

98. Not liable where defendant did not bring case to final trial relying upon the responsibility of trustee for costs. Kessler v. Heriklotz, 132 App. Div. 278, 117 NYS 45.

01. Search Note See Bankrupt, Cent. Dig. SS 350; Dec. Dig. SS 250.

01. Fact that bankrupt who gave a deep which was in fact a mortgage failed to schedule equity in property does not vest in mortgage for the title thereto. Horn v. Rates \[KY.\] 114 SW7 763.

01. Where bankrupt failed to schedule equity in property to which he gave deed which was in fact a mortgage, his creditors after termination of bankruptcy proceeding could enforce their claims against such equity. Horn v. Rates \[KY.\] 114 SW7 764.

01. Search Notei See Bankruptcy, Cent. Dig. SS 233, 235, 317-344, 410-468; Dec. Dig. SS 136, 209-218, 277-306; 5 Cyc. 345, 317, 318.

01. Trustee may be required to give bond to protect lindlord from loss. In re-Schwartzman, 167 F 399.

01. Motion by trustee for order vacating judgment sale and deficiency judgment on mortgage guaranteed by bankrupt and to permit him to assert invallity of guaranty denied where such relief would result in injury to innocent parties and trustee is guilty of unexplained laches. Freehold Const. Co. v. Bernstein, 60 Misc. 363, 118 NYS 368.

01. Comerl Iron & Metal Co. v. Couch \[N. H.\] 73 A 301. See, also, ante, $ 7.

01. Farrell v. Atlantic C. L. R. Co. \[S. C.\]

64 SE 226. Refusal of court in reversing judgment and ordering new trial to require substitution of trustee of plaintiff adjudge bankrupt after rendition of judgment held not error where the court held that on new trial trustee could make appli-

71 A 612.

8. Not liable where defendant did not bring case to final trial relying upon the responsibility of trustee for costs. Kessler v. Heriklotz, 132 App. Div. 278, 117 NYS 45.

1. Search Notei See Bankruptcy, Cent. Dig. SS 350; Dec. Dig. SS 250.

1. So held where money in hands of agent of bankrupt, claimed by plaintiff, was by such agent paid over to trustee. Gardner v. Planters' Nat. Bank \[Tex. Civ. App.\] 118 SW7 1146.

1. Under Act Cong. Aug. 13, 1888, c. 846, 8, 25 Stat. 436 (U. S. Comp. St. 1901, p. 582).

1. Acerlur v. Planters' Nat. Bank \[Tex. Civ. App.\] 118 SW7 114.

1. Criminshaw v. International Shift & Collar Co., 165 F 797. Bill, in equity in action against trustee in bankruptcy to 13 Cur. Law. BANKruptCY SS 13. 471

## 13 Management of the property and reduction to money

See 11 C. L. 401 A solvent member of a firm which has been adjudicated bankrupt may, at his election, administer the estate under the bankruptcy law\[14\]. The trustee may adopt un-expired leases of the bankrupt or may ignore them entirely\[15\]. The referee should not, without the express sanction of the court, authorize the continuance of the bankrupt's business where transactions of great magnitude are involved\[16\], nor should he, without such sanction, authorize the issuance of trustee's certificates\[17\]. The trustee is, chargeable with all the property passing to him as such\[16\], and objections to his accounting and attempts to charge him with property not accounted for may be disposed of by summary proceedings\[10\].

_Sale of property_\[15\] C. L. 401. The court may order a sale of property subject to existing liens thereon \[20\] or, in a proper case, discharged of such liens\[21\], but in the latter event the lien is transferred to the proceeds\[22\]. Creditors filing claims are chargeable with notice of the sale of the bankrupt's property where the record shows that due notice was mailed to all creditors by the referee\[23\]. The sale should be held in the manner authorized by the court\[24\]. The rights of the purchaser are governed by the conditions as they exist at the time of the sale\[25\], the trustee being able to pass no better title than he received from the bankrupt \[26\] of which fact the purchaser is chargeable with notice\[27\], and where the purchaser seeks to avail himself of a release of which he has no notice, he must show diligent inquiry\[28\]. The sale is governed by the rules applicable to judicial sales generally\[29\], under which the order of confirmation exhausts the jurisdiction of the court over the property\[50\], and the validity of the title passed depends upon the validity of the order of confirmation\[31\]. Recitals in the trustee's deed do not prove facts set forth therein\[82\].

13 Search Note: See Bankruptcy, Cent. Current rates, without notice, is suffleently Dig. SS 192, 345-347, 349, 350, 352, 356-380; 410-417, 465, 572, 573; Dec. Dig. SS 246-276.

14 In re Solomon, 168 F 140.

15 Election must be made within reason- able time after appointment. In re Fubbel, 25, Bankrupt held leasehold on property 168 F 131. See, ante, SS 10A.

16 Bray v. Johnson \[C. C. A.\] 166 F 57.

17. Bray v. Johnson \[C. C. A.\] 166 F 57.

01. Trustee properly charged with property coming into his possession which, without order of court, he turned over to creditor asserting lien thereon. In re Mogore \[C. C. A.\] 166 F 689. Trustee authorized to conduct business of bankrupt held properly charged with sums paid by third parties for work done by employees of the trustee as such. Id.

01. Cannot be construed as plenary suit in equity. In re Moore \[C. C. A.\] 166 F 689.

01. Ex parte City of Anderson \[S. C.\] 63 SE 354. Where no mention of liens is made in order of sale, only a sale subject to existing liens is authorized. Id.

01. Where the facts warrant, the referee may order a sale of really discharged of liens. In re Minaers' Brew. Co., 162 F 327.

01. In re Minaers' Brew, Co., 162 F 327.

Referee hears claims upon the proceeds and determines their validity, extent, and relative priority. Id.

23. Bank proved claim. Mortgage applied for foreclosure sale, and notice of sale sent to all creditors. Held bank chargeable with notice. West. Lumber Co. v. Lyon \[Tex. Civ. App.\] 116 SWP 655.

01. Order requiring receiver to sell at public or private sale, within this discretion, at

## 14 Claims against estate and proof and allowance

A. Claims provable.\*\*\[**35**\] See 11 C. L. 401--The filing of a petition in bankruptcy rests in a creditor an equitable estate in so much of the property of the bankrupt as the amount of his claim bears to the entire amount of provable claims,\[**34**\] the status of his claim, when the petition is filed, fixing his right to share in the distribution of the estate.\[**35**\] Claims provable include absolute liabilities,\[**36**\] incurred prior to the filing of the petition,\[**37**\] and based on contract \[**38**\] or judgment,\[**39**\] and which are liquidated \[**40**\] or capable of liquidation before the time for filing claims expires.\[**41**\] Whether a secured debt may be proved as an unsecured claim depends upon whether the security comes within the doctrine of subrogation,\[**42**\] but a creditor whose security is held void may prove it as an unsecured debt.\[**43**\] A claim for an amount due on the bankrupt's subscription to the stock of an insolvent corporation \[**44**\] as well as a claim for

## 15 A.

Claims against estate and proof and allowance

A. Claims provable.\*\*\[**35**\] See 11 C. L. 401--The filing of a petition in bankruptcy rests in a creditor an equitable estate in so much of the property of the bankrupt as the amount of his claim bears to the entire amount of provable claims,\[**34**\] the status of his claim, when the petition is filed, fixing his right to share in the distribution of the estate.\[**35**\] Claims provable include absolute liabilities,\[**36**\] incurred prior to the filing of the petition,\[**37**\] and based on contract \[**38**\] or judgment,\[**39**\] and which are liquidated \[**40**\] or capable of liquidation before the time for filing claims expires.\[**41**\] Whether a secured debt may be proved as an unsecured claim depends upon whether the security comes within the doctrine of subrogation,\[**42**\] but a creditor whose security is held void may prove it as an unsecured debt.\[**43**\] A claim for an amount due on the bankrupt's subscription to the stock of an insolvent corporation \[**44**\] as well as a claim for

## 16 A.

Claims against estate and proof and allowance

A. Claims provable.\*\*\[**35**\] See 11 C. L. 401--The filing of a petition in bankruptcy rests in a creditor an equitable estate in so much of the property of the bankrupt as the amount of his claim bears to the entire amount of provable claims,\[**34**\] the status of his claim, when the petition is filed, fixing his right to share in the distribution of the estate.\[**35**\] Claims provable include absolute liabilities,\[**36**\] incurred prior to the filing of the petition,\[**37**\] and based on contract \[**38**\] or judgment,\[**39**\] and which are liquidated \[**40**\] or capable of liquidation before the time for filing claims expires.\[**41**\] Whether a secured debt may be proved as an unsecured claim depends upon whether the security comes within the doctrine of subrogation,\[**42**\] but a creditor whose security is held void may prove it as an unsecured debt.\[**43**\] A claim for an amount due on the bankrupt's subscription to the stock of an insolvent corporation \[**44**\] as well as a claim for

A. Claims provable.\*\*\[**39**\] See 11 C. L. 401--The filing of a petition in bankruptcy rests in a creditor an equitable estate in so much of the property of the bankrupt as the amount of his claim bears to the entire amount of provable claims,\[**34**\] the status of his claim, when the petition is filed, fixing his right to share in the distribution of the estate.\[**35**\] Claims provable include absolute liabilities,\[**36**\] incurred prior to the filing of the petition,\[**37**\] and based on contract \[**38**\] or judgment,\[**39**\] and which are liquidated \[**40**\] or capable of liquidation before the time for filing claims expires.\[**41**\] Whether a secured debt may be proved as an unsecured claim depends upon whether the security comes within the doctrine of subrogation,\[**42**\] but a creditor whose security is held void may prove it as an unsecured debt.\[**43**\] A claim for an amount due on the bankrupt's subscription to the stock of an insolvent corporation \[**44**\] as well as a claim for

A. Claims provable.\*\*\[**45**\] See 11 C. L. 401--The filing of a petition in bankruptcy rests in a creditor an equitable estate in so much of the property of the bankrupt as the amount of his claim bears to the entire amount of provable claims,\[**46**\] the status of his claim, when the petition is filed, fixing his right to share in the distribution of the estate.\[**35**\] Claims provable include absolute liabilities,\[**36**\] incurred prior to the filing of the petition,\[**37**\] and based on contract \[**38**\] or judgment,\[**39**\] and which are liquidated \[**40**\] or capable of liquidation before the time for filing claims expires.\[**41**\] Whether a secured debt may be proved as an unsecured claim depends upon whether the security comes within the doctrine of subrogation,\[**42**\] but a creditor whose security is held void may prove it as an unsecured debt.\[**43**\] A claim for an amount due on the bankrupt's subscription to the stock of an insolvent * 13 Cur. Law. BANKruptCY $ 14A.

damages for breach of contract occasioned by the adjudication " is provable, as are, also, claims for money paid for stock subscription in a corporation organized to take over assets of bankrupt corporation to defraud its creditors, where in subsequent bankruptcy proceeding holding corporation is required to turn its property over to the trustee,\[46\] but a claim for unearned rent is not," nor one based on the obtention of property by false pretenses.\[48\] A creditor whose claim is based on a judgment for a deficiency, entered in foreclosure proceedings against property of a third party mortgaged to secure the bankrupt's debt, can prove only the excess of the mortgage debt above the market value of the property " regardless of the amount for which the property was sold." A contract liability rendered unenforcible by failure to comply with local statutory regulation cannot be made the basis of a claim in bankruptcy,\[51\] but the fact that a debt represents money loaned to a bankrupt to enable him to make a preferential payment does not render a claim based thereon invalid.\[52\] Partnership debts are provable against the partnership estate " and, where the liability thereon is joint and several, against the estates of the individual partners,\[54\] but a claim against the estate in favor of a bankrupt partner, while provable,\[55\] cannot be paid except from the surplus remaining after other creditors are paid in full." Unliquidated claims may be liquidated by means of a hearing before the referee " or by plenary suit brought before any court having jurisdiction " or by permitting action pending in any court to proceed to judgment." A surety on the note of the bankrupt may prove the note, though he has not yet paid it." The allowance of claims is within the exclusive jurisdiction of the bankruptcy court and cannot be questioned collaterally.\[51\]

- 45 Claimant held entitled to damages for able in bankruptcy. In re Monticello Bruck breach of contract occasioned by adjudication in bankruptcy. In re National Wire corp., 164 F 631.
- 46 Where stockholders of bankrupt corporation participated in organization of corporation to take over property of bankrupt for purposes of defrauding its creditors and purchased and paid for stock of new corporation and in subsequent bankruptcy to proceeding corporation was required to turn its property over to the trustee, such stockholder is a creditor to the extent of money paid for the stock. In re Holbrook Shoe & Leather Co., 165 F 973.
- 47 An unearned instalment of rent can' not be proven in bankrupty though liquidated. In re Rubel, 166 F 131. Unscrued rent upon lease for specified term cannot be proven as claim in bankruptcy.
- 48 Claim for damages for obtention of property by false pretenses or representations are not provable. Maxwell v. Martin, 130 App. Div. 80, 114 NYS 349.
- 49 Where a creditor whose claim is secured by mortgage on property of a third party obtains title thereto on foreclosure and files his claim for the deficiency, claim should be allowed only at the balance due after deducting from the entire debt the value of the mortgaged property. In re Graves, 163 F 358.
- 50 Property sold at foreclosure for $15.-
- 600 Value of the property proven at $18,000. Held creditor entitled on to prove his debt less the $18,000. In re Graves, 163 F 358.

BANKruptcy SS 14B.

13 Cur. Law.

(SS 14) _B. Proof of claims._\[62\] See 11 C. L. 402--Proofs of claim must be filed within the time required by law,\[63\] unless the time is extended for good cause shown,\[64\] but where the filing thereof is delayed by litigation between the trustee and the creditor,\[65\] and the claim has in such litigation been held an unsecured debt,\[66\] the creditor may be permitted to participate in the assets of the bankrupt, though no proof of his debt has been filed in the bankruptcy proceedings.\[67\] The proof of claim must set forth the consideration supporting the debt\[68\] and state sufficient facts to enable the trustee to investigate the justice and legality thereof.\[69\] Proof of an unsecured debt may be amended so as to show claimant's right to priority,\[70\] and a creditor may be permitted to withdraw his claim in order to avail himself of other remedies.\[71\] Proving a debt against a bankrupt estate operates as an absolute extinguishment of the debt only upon condition that a discharge be granted,\[22\] and a creditor does not waive rights against parties secondarily liable by proving his claim in the bankruptcy proceedings,\[73\] nor does the filing of a claim for damages for false pretenses waive the right of action to recover damages therefor\[74\] or the right, in any case, to proceed in another court,\[75\] and, when done by inadvertence, the proving of a claim as an unsecured debt does not waive a right of priority inherent therein.\[70\] The fact that a debt proved by one party is in fact owned by another is immaterial.\[71\]

presentation of claim, bankruptcy court

obtained complete jurisdiction over parties,

subject-matter and demand. Carr v. Barnes

period for filing proofs of claim and re-

\[No. App.\] 120 SVV 705. Could not be questioned in later proceeding by creditor

litigated he could participate only as a against bankrupt after discharge had been

general creditor, it is held that his claims

refused. Id.

62 Search Note: See Bankruptcy, Cent.

Ith enecessary for him to file formal proofs.

Dig. is 501-507; 517, 519-564; Dec. Dig.

63. In re Strobel, 163 F 787. Proofs of claim cannot be received after a final order

in composition has been made. In re

Cooper Bros, 166 F 932.

64. In re Peck \[C. C. A.\] 168 F 48. Court

cannot extend time for filing claims so as

to permit proof by creditor who neglected

to file because misled by schedules as to

extent of bankrupt's assets. Id.

65. A creditor will not be barred from

participation in distribution among credit-

ors by reason of the fact that litigation

whereby he endeavored to secure greater

rights in the bankrupts properly extended

beyond the time for filing proofs of claims.

In re Strobel, 163 F 787. Where litigation

as to right of a creditor to a lien upon

certain property of the bankrupt and own-

ership of another portion extended beyond

the time for filing claims and resulted in a

holding that as to his claims he could participate only as a general creditor, he will

not be barred from participating in the

dividends by reason of his delay in filing

his proofs of claim. Id. creditor who upon

suit of trustee is forced to surrender preference may prove claim which was attempted to be liquidated by the preferential payment, though time for filing claims

has expired. In re Otto F. Lange Co., 170

F 114.

66. In re Strobel, 163 F 787.

01. Where a creditor as to one'part of his

claim persisted upon his rights under a

chatel mortgage which was held void and as to another part claimed ownership of

presentation of claim, bankruptcy court

property in possession of the bankrupt and

obtained complete jurisdiction over parties,

the ensuing litigation extended beyond the

subject-matter and demand. Carr v. Barnes

period for filing proofs of claim and re-

\[No. App.\] 120 SVV 705. Could not be questioned in a holding that as to the claims

tioned in later proceeding by creditor

digated he could participate only as a against bankrupt after discharge had been

general creditor, it is held that his claims

refused. Id.

were sufficiently before the court to render

it unnecessary for him to file formal proofs.

Ith en F strobel, 163 F 787.

68. Claim based upon a promissory note.

In re Coventry Evans Furniture Co., 166 F

516. "Value received" recited in note which

is made a part of the proof held an insufficient statement of consideration. Id.

69. General statement that note is supported by consideration insufficient. In re

Coventry Evans Furniture Co., 166 F 516.

70. Claim for priority on claim, which

from its nature is entitled thereto under

state law, is not such an amendment therefor

of as is forbidden under $7n of the Bank-

rupts Act. In re Ashland Steel Co. \[C. C. A.\] 108 F 679.

71. Creditor properly permitted to with

draw proof so as to avail himself of waiver

of exemptions in note given him by bankrupt, upon which proof of debt was based.

In re Strickland, 167 F 867.

72. Carr v. Barnes \[Mo. App.\] 120 SV 13 Cur. Law. BANKruptcy $ 14D. 475

(SS 14) \_C. Contest of claims. 18- See 11 C. L. 403--\_Where the proof of a claim complies with the requirements of the law, the burden of overthrowing the claim is on the trustee or contesting creditors, 79 but where it is insufficient, the burden is on the claimant to establish it by proof 80 or to correct his proof by amendment. 81 Where the claim is sufficiently established by proof, failure to amend is immediate. 82 Claims filed by relatives of the bankrupt should be closely scrutinized. 83 In any case only such claims as are based on valid 84 and bona fide debts 85 against the bankrupt estate 86 should be allowed.

(SS 14) \_D. Surrender of preferences and effect thereof. 87- See 11 C. L. 403--\_Preferential payments 88 received by a creditor must be surrendered 89 as a condition

by inadvertence or mistake. In re Ashland Steel Co. IC. C. A.J. 168 F 679; Ohio Valley Bank Co. v. Mack \[C. C. A.J. 168 F 155. 77. That a creditor who loaned money to a bankrupt himself borrowed the money from a bank, giving his note and pledged the mortgage of the bankrupt as collateral, holes not affect his right to prove the debt in his own name. Ohio Valley Bank Co. v. Mack \[C. C. A.J. 168 F 155. 78. Search Note: See Bankruptcy, Cent. Dlg. $$ 525-527; Dec. Dig. $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$$$ $$ $$ $$ $$ $$$$ $$ $$ $$$$ $$ $$ $$$$ $$ $$$$ $$ $$$$ $$ $$$$ $$ $$$$ $$$$ $$$$ $$$$ $$$$ $$$$$$ precedent to the right to prove the claim," but after such surrender the creditor is entitled to come in upon equal basis with the other creditors," and, where the suit to avoid the preference is brought in the bankruptcy court, the matter may there finally be adjudged by requiring the creditor to surrender merely the difference between his lawful share of the estate and the amount of the preference with interest." Where a creditor is required to return preferential payments, his proof of claim may be increased to the extent of payments returned though time for filing claims has elapsed."

(SS 14) _E. Secured creditors._" See 11 C. L. 400--A creditor holding valid security" may, where the property is administered by the bankruptcy court and sold, assert his lien in the bankruptcy court " against the proceeds of the sale," and, where he does not appear at the hearing of the petition for an order to sell, he cannot complain that the property was sold below its appraised value for a sum less than the amount of his mortgage." Extinguished liens " or liens rendered invalid by failure to record evidence thereof 1 cannot be asserted, but the signing of a liquidation agreement as to an unsecured claim does not operate to extinguish the lien of a secured claim held by the same creditor." A surety who by paying as voluntary surrender. In re Otto F. Lange holders of chattel mortgages consented to Co., 170 F 114.

90. In re Friedman, 164 F 131; In re entshepherd, 165 F 363. Surety on note of bankrupt who has paid it and become sub-rogated to rights of holder, and who has in the state courts cannot be determined unreasonable, cannot prove his claim based on such notes until he surrenders preference.

have asked the referee to proceed with the Kahn & Bro. v. Bledose \[OKL\] 85 P 821.

91, 92 Page v. Rogers, 211 U. S. 575, 53 Law. Ed. --.

93. A proof of claim may be Increased after lapse of time for filing where such increase is occasioned by a requirement that the creditor return preferential payments. In re Shiebler, 165 F 83.

01. Search Note: See Bankruptcy, Cent.

Dig. $51 501-501; Dec. Dlg. $10.

95. Mechanic's lien held defective on its face and not to confer priority on claimant.

01. The reason why the claim is not a mis-recherment of the creditor is that the creditor is not a mis-recherment of the creditor is not a mis-recherment of the creditor.

01. A proof of claim may be Increased after lapse of time for filing where such increase is occasioned by a requirement that the creditor return preferential payments. In re Shiebler, 165 F 83.

the debt of his principal becomes subrogated to creditor's lien may assert it in bankruptcy proceedings.\* A creditor in the absence of facts raising an estoppel * may assert his lien though he has proved his debt as an unsecured claim.\* The presentation of a claim by a judgment creditor as unsecured does not necessarily waive the rights vested in a receiver appointed in proceedings supplementary to such judgment.\* Formal amendments to lien claims may be allowed,\* but amendments materially changing the position of claimant and affecting the status of the remaining creditors are not permissible.\*

(SS 14) \_F. Set-off.\*\_See * C. L. 376. Mutual debts may be set off !0 notwithstanding either is secured,11 but after the bankrupt has assigned his claim against the creditor, it cannot be offset against the creditor's claim against the bankrupt.12 (SS 14) G. \_Priorities.13--\_See * C. L. 408--\_Creditors are classified according to the percentage to which they are entitled.14 Preference is given to wages,15 taxes,16 bankrupt and took security there hold to have relinquished his security by signing liquidation agreement as an unseured creditor on debt arising out of another transaction. In re Cycleopen Co. \[C. C. A.\] 167 F 971. Signature held placed en liquidation agreement as unsecured creditor and not to embrace indebtedness for which he held security. Id. **3.** Accommodation indersers of notes of business to bankrupts to operate for a year contracted that, upon termination of term, endorsement, who upon maturity paid them, check advancing half the funds necessary for that purpose, may as joint petitioners since of surrender by corporation, expora-assert the mortrage lien in subsequent bankruptcy proceedings. In re Farmers' end of term corporation paid bankrupts difrence less sums owing by bankrupts to who pays debt after it has been proved in corporation on account of unpaid Insurance, bankruptcy is subrogated to creditor's precentages, etc. Held such items were rights and may in the latter's name assert right to vendor's lien. Sessler V. Paducah

Instelleries Co. \[C. C. A.\] 168 F 44.

- Filing of claim as unsecured debt and voting for trustee does not, under doctrine of estoppel, bar a claim for priority in-herent in such claim, where creditors were not injured thereby and voting thereof did not affect election of trustee. In re Ash- land Steel Co. \[C. C. A.\] 168 F 679. One which had not matured held to be funds who is secured by a lien on property to which the bankrupt has no claim is not a payment, and not a deposit against which secured creditor within the meaning of the note could be set off. Irish v. Citizens' bankruptcy act, $ I. County of Coles v. Trust Co., 163 F 880. Bank to whom payments were made by depositor with intent secured by lien on building of owner held not to be such secured creditor of bankrupt at time of payment, to have a right of set-off, but, as to notes which were not due, to be liable to the trustee. Id.

- Creditor may assert vendor's lien under Art. 3227, Rev. Civ. Code Louisiana, not- withouting he has proved his debt as one without security. Sessler v. Paducah Dis- thankrupt is not affected by fact that note is secured by chattel mortrage. Hooks v. Gia Valley Bank & Trust Co. \[Ariz.\] 100 P Proc. $ 2469, takes title to judgment debtor's property. Wrote v. Clark, 117 NYS F. vreg. Wrede v. Gilley, 61 Misc. 530, 113 NYS 609. Lien was not waived where claim of creditor did not state that he did or did not survive his lien and where receiver had been appointed in proceeding in aid of execution issued on judgment. Wrede v. Clark, 117 NYS 6. Such presentation was considered as notice that judgment had been obtained and a receiver appointed, and not an election of remedy to proceed alone in bankruptcy court. Id.

- In re Miners' Brew. Co., 162 F 327.

costs of legal proceedings against property of bankrupt prior to bankruptcy, and rendered void thereby,\[17\] and to certificates representing money borrowed by the receiver under authority of the bankruptcy court,\[18\] and also to claims for money borrowed by receiver for which certificates were authorized but not issued.\[19\] A trust creditor is entitled to priority only to the extent that he can show that the trust funds or property into which it was converted passed into the hands of the trustee.\[20\] Rents\[21\] and debts due the state\[22\] are given priority to the extent provided local laws, which also govern questions between the trustee and mortgagee of property belonging to the bankrupt as to the application of rents pending foreclosure.\[28\] A town supervisor who deposits funds with the bankrupt, without requiring that they be kept separate from other deposits, is not entitled to priority.\[24\] Claims inherently entitled thereto may be given priority, though it is not claimed until a year after adjudication.\[23\]

Kahn & Bro. v. Bledsoe \[Okl.\] 98 P 92I. Cefic property. IG. Bankrupt mingled Proceditors entitled to the same percentages are in the same class. Id. ment under contract requiring him to hold proceeds in trust, with his own funds. salesman are wages, within $ 64b of the healthowner entitled to recover such funds in full to the extent only to which he can show that they or property into which they were converted increased the assets of es- at regular wages to play at theaters or * 427.

For a fair comparison, the results of the previous section are in agreement with the results of the previous section.\[24\]

In re Industrial Cold Storage & Ice Co., 163 F 390. Water rent due a municipal, which is leveled and made a lien as a tax, is a tax within the spirit of $ 64a of the bankruptcy act. Id.

17. Costs of attachment dissolved by bankruptcy proceedings held, under $ 64b of bankruptcy act and Pub. Laws R. I., p. 61, c. 984, $ 4, to be entitled to priority. In re Troquis Mach. Co., 166 F 62. Peres of sheriff for levies of attachments on prop., early of bankrupt within four months of filling petition, which levies were thereby reendered void, should be paid out of bankrupt's estate, where such attachments were issued in proceedings regular under laws of state wherein execution was issued. In re Schmidt & Co. \[C. C. A.\] 165 F 1006.

01. Parties holding receiver's certificates issued to raise money for purpose of preventing deterioration of property are en- tiled to priority of payment out of pro- ceeds of sale of such property. In re Alaska Fishing & Development Co., 167 F 875.

01. A receiver was authorized to borrow $10,000 for the purpose of continuing the bankrupt's business and to issue certificates thereto. He issued certificates for $5,000 which were purchased by a snverty com- on the mortgage debt, where the mortgage pany, with whose knowledge he contracted indebtedness in excess of the authorized amount for which he issued no certificates. Subsequently he paid $1,000 on the certificate issued to the surety company. Held that the holders of the debts for which no certificates are issued are entitled to participate, to the amount of $6,000 in the bankrupt's assets on the same footing as the remaining $4,000 for which certificates were issued. In re Restein, 162 F 986.

01. In re Brunsing, 169 F 668. Depostit of employe with bankrupt as security held to pay for repairs made by the recordable only upon showing that it or property into which it was converted passed to trustee. Id. Need not identify the spe-, and the results of the previous section are in agreement with the results of the previous section.\[24\]

01. Where a lease required the lease to make all repairs and the landford was compiled to pay for repairs made by the board of health which constituted a lien, the landford is entitled to prove the claim against the estate of the lessee only as an unsecured claim, but not as rent entitled to priority. In re Schonacker Piano Forte bankruptcy proceedings held, under $ 64b of bankruptcy act and Pub. Laws R. I., p. 61, c. 984, $ 4, to be entitled to priority. In re Troquis Mach. Co., 166 F 62. Peres of sheriff for levies of attachments on prop., early of bankrupt within four months of filling petition, which levies were thereby reendered void, should be paid out of bankrupt's estate, where such attachments were issued in proceedings regular under laws of state wherein execution was issued. In re Schmidt & Co. \[C. C. A.\] 165 F 1006.

01. Parties holding receiver's certificates issued to raise money for purpose of preventing deterioration of property are en- tiled to priority of payment out of pro- ceeds of sale of such property. In re Alaska Fishing & Development Co., 167 F 875.

01. A receiver was authorized to borrow $10,000 for the purpose of continuing the bankrupt's business and to issue certificates thereto. He issued certificates for $5,000 which were purchased by a snverty com- on the mortgage debt, where the mortgage pany, with whose knowledge he contracted indebtedness in excess of the authorized amount for which he issued no certificates. Subsequently he paid $1,000 on the certificate issued to the surety company. Held that the holders of the debts for which no certificates are issued are entitled to participate, to the amount of $6,000 in the bankrupt's assets on the same footing as the remaining $4,000 for which certificates were issued. In re Restein, 162 F 986.

01. In re Brunsing, 169 F 668. Depostit of 13 Cur. Law. BANKIPUPTCY $ 14H. 479

(SS 14) \_H. Expenses of the proceedings. 20--See 11 C. L. 404--The costs of bankrupty proceedings cannot be assessed against the exemptions of the bankrupt 27 nor against a mortgage creditor attempting to enforce his lien against the property of the bankrupt. 28 Attorney's fees should be fixed by the referee 29 in accordance with the extent of the services rendered 30 and the results accomplished, 81 the allowance thereof 22 and also the compensation of the receiver 33 resting largely in the discretion of the court, but no allowance can be made to the attorney for the bankrupt for services in securing the bankrupt his exemptions. 84 Where two petitions are filed, one of which is insufficient, fees should be allowed only to the attorney filing the sufficient petition, 35 and after an attorney is appointed counsel for the receiver, he cannot further represent the petitioning creditors and is entitled to no fee therefor. 36 Proceedings to test the propriety of payments to an attorney for services rendered before payment, as well as those to be rendered in the bankruptcy proceedings should, unless an issue is raised, be in the form of a motion to fix the allowance and for an order directing the return of the balance. 37 The compensation of the referee is limited by law 38 but an improper allowance can be attacked only in direct proceedings. 39 The trustee is not chargeable with occupation of premises leased by the bankrupt by the purchaser of the bankrupt's property located therein, 40 and a claim against him for wrongful detention of such property cannot be allowed until liquidated. 41 The receiver does not take under the lease of the bankrupt, 42 and hence water rents cannot, under a provision therein making them payable by the tenant, be allowed as an expense of the proceeding. 43

to priority under state law. In re Ashland \[ to prevent loss to creditors owing to apolentent of receiver under insufficient petition they are joined, the attorney fee should be allowed to the attorneys who presented the sufficient petition. In re roceedings against exemptions of bankrupty but help improper. In re Huddeston, 167 F 428. Costs of administration cannot be assessed against bankrupt's homesetead cxemption. Dunlap Hardware Co. v. Huddeston \[C. C. A.\] 167 F 433. 28. Mortgage creditor who files his claim for purpose of enforcing lien on proceeds of sale of mortgaged property cannot be compelled to pay a proportionate share of costs of bankrupty proceedings. Mills v. Virginia-Carolina Lumber Co. \[C. C. A.\] 164 F 168. 29. In re Stoddard Bros, Lumber Co., 169 F 190. 30. In re Huddeston, 167 F 428, afd. Dunlap Hardware Co. v. Huddeston \[C. C. A.\] 167 F 433. 31. Three hundred dollars to attorneys for bankrupt held proper where their servuesues added largely to value of estate. In re Huddeston, 167 F 428, afd. Dunlap Hardware Co. v. Huddeston \[C. C. A.\] 167 F 433. 44. Attorney for mortgage, who was permitted to sell mortgaged property and hold proceeds subject to order of court, is upon disallowance of security of mortgage entitled to fee out of proceeds only in so far as his services were directed to conserving them. In re Claussen & Co., 164 F 300. 28, 33. Dunlap Hardware Co. v. Huddles-ton \[C. C. A.\] 167 F 428. 34. In re O'Hara, 166 F 384. 35. Where two petitions in bankrupty are filed but only one of them sufficiently allege an act of bankrupty, and, in order to prevent loss to creditors owing to apolent of receiver under insufficient petition they are joined, the attorney fee should be allowed to the attorneys who presented the sufficient petition. In re Southern Steel Co., 169 F 702. 36. Where two sets of petitions are filed and attorneys filling one set become attorneys for receivers appointed by the court, their engagement as attorneys for petitioning creditors ceases and they are entitled to no fee therefor. In re Southern Steel Co., 168 F 702. 37. In re Shiebler & Co., 163 F 545. 38. In re Sweeney \[C. C. A.\] 168 F 612. 38. Connot be allowed compensation of special master. Id. Reference is entitled to commission only on amount actually disbursed to creditors by trustee, and not to commission on funds handled by trustee in carry-ing on bankrupt's business. Barry v. Johnson \[C. C. A.\] 169 F 57. 39. Order fixing referee's compensation based on Improper construction of bankrupty act not appealed from, Is, as to sums paid thereunder, conclusive on appeal from allowance made on same basis to referee's successor. Id. 40. In re Rubel, 166 F 131. 41. Claim against trustee and receiver for damages for wrongful detention of property leased to bankrupt is not provable until properly liquidated. In re Rubel, 166 F 131. 42. In re Youdelman-Walsh Foundry Co.. 166 F 381. 43. Where lease provides for payment of water rent and taxes by bankrupt but landford did not take security to protect himself, the taxes and water rent cannot be paid as an expense of receiver's afd'in
On re-examination of a claim not pressed in good faith, costs are taxable against the claimant," but he should not be required to pay an attorney's fee to the trustee's counsel." \[11\]

(SS 14) _I. Expenses of receivers and assignees appointed prior to bankruptcy proceedings._\[11\] See 11 C. L. 405

SS 15. _Distribution of assets; dividends._\[12\] See 11 C. L. 405\_--Dividends must be paid out of funds in the hands of the trustee," \[11\] to the party entitled thereto," \[11\] and those paid on collateral, a note of the bankrupt given to secure his debt should be applied toward the payment of the debt secured thereby." \[11\] Where a partnership and its members are adjudged, partnership property should first be applied to partnership debts and individual property first to individual debts. \[12\]

SS 16. _Exceptions._\[13\] See 11 C. L. 403\_--All questions relating to what is exempt under local laws are excluded from this section, only those relating to the claiming and loss of exemptions under the bankruptcy law being treated here." \[13\] The rule that the bankrupt is allowed the exemptions prescribed by the state laws in force at the time of the filing of the petition \[11\] pervades the whole bankruptcy act and must be read into every section," \[13\] and so, also, with reference to exemptions under the acts of congress." \[11\] The bankrupt is entitled therefore to his exemptions," \[11\] unless he waives them," \[13\] but an allowance cannot be made to his widow out of partnership

- 13 Cur. Law. BANKruptcy SS 16.

property. \[59\] While the bankruptcy court has no jurisdiction over exempt property, \[60\] even though it is subject to specific debts of the bankrupt, \[61\] it has exclusive power to determine claims to exemptions, \[62\] and in doing so will follow local laws as construed by the state courts \[68\] and the procedure prescribed therein. \[64\] The bankruptcy court is not controlled, however, as to the time or manner in which the claims for exemptions are to be preferred. \[65\] The bankrupt usually claims his exemptions in his schedules, \[66\] an extension of time for the filing of which operates to extend the time for claiming exemptions. \[67\] Schedules may be amended so as to permit the bankrupt to claim his homestead exemption, \[68\] and the fact that the amendment is not so designated is immaterial. \[69\] Where the right to exemptions is doubtful, they will not be allowed unless application therefor is seasonally made \[70\] in compliance with the requirements of the bankruptcy law, \[11\] but where the bankrupt fails to claim his homestead exemption, his spouse or any member of his family having homestead rights may do so. \[72\] The right to exemptions must be determined as of the date they are claimed, \[73\] and, where the property is sold, the bankrupt may assert his claim for exemptions against the proceeds, \[74\] but if by agreement the exempted property is sold with other property, at less than the value placed thereon in the inventory, the bankrupt is entitled only to his pro rata share of the proceeds. \[75\] Claims for exemptions in property purchased with partnership

re Highfield, 163 F 924. Waiver of exemptions in accordance with state exemption laws will be recognized. Constitution of Georgia, 16 5914, 51515, 51916, and Georgia Code, 1895, 8 2863, construed. Citizens Bank v. Hargraves \[C. C.\] 164 F 613. Heid that bankrupt. having waived his exemptions in mortgage, was not entitled, as against mortgage, to exemption of 3300 from fund arising from sale of property covered by mortgage and sold by trustee by consent of parties. Id.

59, Probate court of Texas has no power to make allowance to widow of deceased partner out of partnership assets. In re Dupert, 165 F 749. After adjudication and appointment of trustee, surviving partner has no power to consent to an allowance by the probate court from the partnership assets to the widow of a deceased partner. Id.

60. In re Highfield, 163 F 924.

01. That homestead may be subjected to specific debts of bankrupt does not give bankrupt court jurisdiction to administer it. In re Maxacon, 170 F 356. Waiver of homestened exemption as to specified debts does not justify a refusal by the bankruptcy court to allow the homestead exemption. In re Batten, 170 F 688.

01. In re McCrary Bros., 169 F 485. Where property of bankrupt has been sold and he asserts claim of exemptions against proceeds, bankruptcy court has jurisdiction to determine rights thereto and between him and other claimants. In re Highfield, 163 F 924. While the bankruptcy court has no jurisdiction over property claimed as exempt, it may, once the right to exemptions has been established, determine whether or not it can be asserted. Id.

01. In determining bankrupt's claim to exemptions, bankruptcy court will follow state statutes as interpreted by the supreme court of the state. In re McCrary Bros., 189 F 485. Validity of exemptions presents a question of state and not one or federal law. Bailey v. Wood \[Mass\] 89 N 147.

13 Curr. L- 3L.

64. In determining claims to exemptions, the bankrupt court may follow the pro-edure prescribed by state laws. Blood v. Hargraves \[C. C.\] 165 F 785.

01. In re Culwell, 165 F 828.

01. Claim of exemptions held suffClient, when made in bankrupt's schedules. In re O'Hara, 162 F 325. Bankrupt cannot be denied his exemptions because he did not, prior to adjudication, designate the property claimed pursuant to the statute of his state, where he properly compiled with the state statute immediately after adjudication and in his schedules claimed the property as exempt. In re Culywell, 165 F 785.

01. In re O'Hara, 162 F 325.

01. Claim for exemptions omitted through oversight. In re Maxacon, 170 F 356.

01. Claim for homestead in real property filed after schedules containing no claim for exemptions are filed, held sufficient request to be permitted to amend. In re Maxacon, 170 F 356.

01. Denied where exemption was not claimed in schedules and application to amend schedules is made after payment of first dividend. In re Jennings & Co., 166 F 639.

01. In re Jennings & Co., 166 F 639.

01. In re Maxacon, 170 F 356.

01. Bankrupt absorbing from business in state of Pennsylvania and seeking position in another state at the time of claiming exemptions held not a resident of Pennsylvania-vania as to be entitled to exemptions al-valued under its laws. In re O'Hara, 162 F 325.

01. In re Highfield, 163 F 924. Creditors who fail to object to sale of bankrupt's property with understanding that * 482 BANKruptCY $ 17. 13 Cur. Law. funds are governed by local laws.74 The trustee acquires no title in the exempt property and no interest in it,77 or in the money that may be allowed in lieu of such exempt property,78 nor has he any power to administer exempt property as though it were an asset of the estate,79 but he may except to the allowance of a statutory exemption 80 on the ground of the bankrupt's fraud.81 Where the debttor's property is subject to a lien superior to his right of exemption, such lien cannot be affected by selling of a part of the property as exempt,82 except to such extent as the nonexempt property may be required to be exhausted before subjecting that set apart as exempt.83

- 17. _Death of bankrupt pending proceedings.84 See 0 C. L. 374_--The death of the alleged bankrupt intermediate the filing of petition and the adjudication does not abate the proceedings.85
- 18. _Referees, proceedings before them, and review thereof.86 See 11 C. L. 406_ The power to appoint or remove referees rests in the district court,87 and the exercise thereof cannot be controlled by the circuit court of appeals.88 Such power may be exercised by one judge of the district court, though there is in the same district another judge of such court with equal powers.89 A referee may also be appointed in chambers 90 at any place where the judge may be and have authority to act.91 Proceedings may be referred to the referee by general order 92 or upon special issues,93 his power depending upon the order of reference 94 which is conclu 13 Cur. Law. BANKruptry $ 19.

sive as to the power conferred,\[95\] but a proceeding cannot be referred to him as special master.\[96\] An adjudication and order of general reference will supersede the authority of special referee.\[97\] It is the referee's duty to take all evidence submitted \[98\] and to report it,\[99\] except where it is so palpably incompetent, irrelevant and immaterial that compelling its production or permitting its introduction would constitue abuse of process,\[1\] and where he refuses to do so, the proper remedy is by application successively to the reviewing courts.\[2\] The weight to be given the findings of the referee depends upon the character thereof;\[3\] if they represent deductions from established questions of fact, they are not entitled to much weight,\[4\] but, if on questions of fact\[5\] and based on conflicting evidence\[6\] and their correctness depends upon the credibility of the witnesses,\[7\] they should not be disturbed unless clearly erroneous. Points made, but not pressed at the hearing before the referee, will be deemed waived.\[8\] The referee has no power to change his own orders.\[9\] He cannot commit for contempt,\[10\] but contempt proceedings for refusal to obey his orders must be based on his certificate.\[11\]

SS 19. _Modification and vacation of orders of bankruptcy court; new trial.\[12\]_ See 11 C. L. 497--A motion to vacate an adjudication\[13\] may be made by a general creditor\[14\] or by a receiver appointed at the instance of the creditors\[15\] for lack of jurisdiction,\[18\] but the court is not necessarily ousted of jurisdiction by proof on petition to vacate, that the debtor is not subject to adjudication,\[17\] and should not, upon such proof, be dismissed without determining an issue raised as to the

95. An order of the court requiring referee to hear and determine claims against the proceeds of a sale of reality clear of lines is given to correct previous testimony. In re that behalf. In re Miners' Brew. Co., 162 F 327.

01. In re Sweeney \[C. C. A.\] 168 F 612.

01. In re Ruos, 164 F 749.

01. First Nat. Bank v. Abbott \[C. C. A.\] 165 F 852. Court can consider legality of ruling-excluding evidence only when the rejected evidence is taken and reported. Id.

Masters and referees and the District Court should take and report evidence which they deem incompetent and immaterial as well as that deemed competent and admissible so that the appellate court can determine whether there is sufficient relevant and complement evidence to sustain the decree. Missouri-American Elleo. Co. v. Hamilton-Brown Shoe Co. \[C. C. A.\] 165 F 283.

1. Missouri-American Elleo. Co. v. Hamilton-Brown To Brown Wehne Co. \[C. C. A.\] 166 F 283;

1. First Nat. Bank v. Abbott \[C. C. A.\] 165 F 852.

1. Appeal does not afford remedy. First Nat. Bank v. Abbott \[C. C. A.\] 165 F 852.

1. In re McCrary Bros., 168 F 485.

1. In re McCrary Bros., 169 F 485: In Reanoke Furnace Co., 166 F 944; Ohio Valley Bank v. Mack \[C. C. A.\] 163 F 155.

1. In re Braselton, 169 F 960.

1. Where based on conflicting evidence and involving the credibility of the witnesses,\[16\] they should not be disturbed except on most cogent evidence of mistake or miscarriage of justice. Ohio Valley Bank Co. v. Mack \[C. C.\] 169 F 586.

1. Receivers of corporation appointed at once are based on conflicting evidence and involve the credibility of the witnesses and

1. Receivers of corporation appointed at instance of creditors may, if not guilty of laches, move to vacate an adjudication entered as a matter of course, no defense being interposed. In re Hudson River Elec. Co., 167 F 986.

1. In re New England Breeders' Club \[C. C. A.\] 169 F 586.

1. In re New England Breeders' Club \[C. C. A.\] 169 F 586. Objection that debtor is not subject to adjudication. In re New England Breeders' Club \[C. C. A.\] 169 F 586; In T Hudson River Elec. Co., 167 F 986.

1. In re Hudson River Electric Co., 167 F 986; In the New England Breeders' Club \[C. C. A.\] 169 F 586.

48$\\sharp$ BANKrupTCY $ 20. 13 Cur. Law.

laches of the petitioner asking for such dismissal \[18\] and without determining the extent to which other creditors will be prejudiced by dismissal.\[19\] An adjudication will not be vacated on grounds which, if presented prior to adjudication could have been removed by amendment,\[20\] and, if otherwise sufficiently supported, the adjudication is not affected by statement in the order of incompetent matter considered by the court.\[21\] Granting of leave to a creditor, after adjudication, to file petition contesting adjudication rests in discretion of court.\[22\] The petition for vacation must be verified.\[23\] A trustee duly elected has power to appear and answer a petition for the dismissal of the bankruptcy proceedings for want of jurisdiction.\[24\]

The granting of new trial after the denial of a petition for adjudication rests in discretion of trial court,\[25\] and upon granting a new trial the court may allow amendments to the petition showing other and further acts of bankruptcy.\[26\]

$\\lx@sectionsign$ 20. _Appeal and review in bankruptcy cases.\[27\] See 11 C. L. 407_--The provisions of the bankruptcy act are determinative of the mode of reviewing administrative orders,\[28\] with reference to whether by appeal,\[28\] by petition to revise,\[30\] or by writ

**18.** In re New England breeders' Club \[C. \[ only by appeal. Postlethwalte v.: Hicks \[C. C. A.\] 169 F 586; In re Hudson River Elec. C. A.\] 165 F 897. Decision of district court Co., 167 F 986.

**19.** In re New England breeders' Club \[C. \[ in hands of trustee is reviewable on appeal. C. A.\] 169 F 586.

**20.** In re Marion Cont. & Const. Co., 166 F 168 F 857. Where a creditor answers trustee's petition to sell, claiming chatel mortgage likens as the subject-matter of the petition, he may appeal from an order holding bankruptcy held incompetent and reference thereon in the order of adjudication treated as surplusage. Young & Holland Co. v. Brande Bros. \[C. C. A.\] 162 F 662.

**22.** In re Marion Cont. & Const. Co., 166 F 618.

**23.** In re Pennsylvania Consol. Coal Co., 163 F 579. Where a petition by several creditors for vacation of bankruptcy proceedings is properly verified by one of them, it should not be dismissed for insulinClient verification. Id.

**24.** In re Pennsylvania Consol. Coal Co., 163 F 579. See, also, New England breeders' Club \[C. C. A.\] 169 F 586. And see post, $ 20.

Creditor moving to vacate could not complain where answer of trustee was same as that of general creditors. In re Pennsylvania Consol. Coal Co., 163 F 579.

**25.** Z6. Correro & Co. v. Barton \[C. C. A.\] 166 F 1019.

**27.** Search Note: See note in 7 C. L. 425.

See, also, Bankruptcy, Cent. Dig. $\\lx@sectionsign$ 914-930; Dec. Dig. $\\lx@sectionsign$ 439-468.

**28.** Under Bankruptcy Actly 1, 1898 (30 Stat. 544, c. 541, U. S. Comp. St., 1901, p. 3418)

**31.** A trustee duly elected has power to appear and answer a petition for the dismissal of the bankruptcy proceedings for want of jurisdiction.

**29.** Only independent and plenary proceedings which concern bankrupt's estate arising between trustee and claimant asserting same, or which concern interests adverse to bankrupt or his general creditors as distinguished from administrative orders and decrees in the ordinary course of bankruptcy proceedings, are appealable under $ 24a of the bankruptcy act. Brady v. Bernard \[C. C. A.\] 170 F 576. Decision of the district court allowing or rejecting claim can be reviewed.

of error.\[31\] It is held that an appeal cannot be treated as a petition to revise," especially where questions of fact are involved,\[38\] but a contrary practice is indicated by some of the decisions\[34\] and has been recently indulged, though with an express caution against such indulgence being treated as a precedent.\[35\] Where an order denying a petition to vacate the adjudication is not properly brought up for review, the appellate court will not remand with order to dismiss the bankruptcy proceedings for lack of jurisdiction unless such lack of jurisdiction affirmatively appears on face of record,\[36\] but where for want of specification of errors a re-visory petition is dismissed, but the evidence casts a doubt upon the decision below, the dismissal will be without further proceedings in the lower court.\[47\] A petition to revise will not be dismissed for lack of a formal order or decree in the court below.\[38\] An appeal to the supreme court may in a proper case be allowed from the circuit court of appeals,\[39\] but the circuit court of appeals will not, in advance of its decree " nor of its own motion,\[41\] determine whether the case is one in which an appeal may be allowed. A federal question sufficient to sustain an appeal to the federal court is involved in a decision of a state court as to the right of a trustee in bankruptcy to sue to avoid a transfer rendered preferential by a state law,\[42\] and, also, in such court's decision as to the conditions upon which such preference may be avoided at the instance of the trustee.\[43\] An appeal without supersedeas will not stay proceedings,\[44\] and hence cannot be made the basis of an answer to a rule to compel bankrupt to file schedules.\[45\] An appeal from an order adverse to the trustee must be taken by the trustee,\[46\] but, where he refuses to do so upon request, the court may at the instance of a dissatisfied creditor order

**31.** Adjudication following trial by jury \[213 U. S. 126, 53 Law. Ed. --, following held reviewable by writ of error and not by appeal. Lennox v. Allen-Lane Co. \[C. C. A\] Construction of bankruptcy act was held 167 F 114. Order punishing disobedience as for contempt must be reviewed by writ of error. In re Cole \[C. C. A\] 163 F 180. A mere interlocutory order of the circuit court of appeals will not prevent the issnance of a wrt of error from supreme court to bankruptcy court. Affirmance or order overriding motion to dismiss held to be interlocutory order. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445, 53 Law, Ed. --,

**32.** Where appeal has been erroneously taken, it cannot be treated as a petition for review as the provisions of SS 24a and 25b of the bankruptcy act are mutually exclusive. Brady v. Bernard \[C. C. A.\] 170 F 576.

**33.** Where consideration of facts is involved, an appeal cannot be treated as petition for revision. Gaudette v. Graham \[C. C. A.\] 164 F 311.

**34.** See Gaudette v. Graham \[C. C. A.\] 164 F 311.

**35.** Where objection that order was not ap-peable was not raised and assignments presented questions of law as adequately as petition to revise could have done. In re Rose Shoc Mfg. Co. \[C. C. A.\] 168 F 139.

**36.** Brady v. Bernard \[C. C. A.\] 170 F 576.

**37.** Ross v. Strent \[C. C. A.\] 165 F 628.

**38.** That no formal order or decree was entered by the district court is not a ground for dismissal of petition to revise. In re Sweester, 168 F 1018.

**39.** Knapp v. Milwaukee Trust Co. \[C. C. A.\] 162 F 675. An appeal lies to the federal supreme court from the judgment of a circuit court of appeals, where the construction of the bankruptcy act is directly involved. Hurley v. Atchison, etc., R. Co.,

###### Abstract

The study of * 13Cur. Law. BANKREMPTCYS 22A.

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  must be made within the time required by law "15 and failure to do so is equivalent to a denial thereof," and, as to debts scheduled, bars a discharge in a subsequent proceeding." Failure to make timely application for discharge cannot be cured by vacating the adjudication and entering a new one," though for good cause shown, the time may be extended for a limited period." After the return day, an appearance by a creditor in the proceedings will be permitted only upon good cause shown."

\_The specification of objections.\_See 11 C. L. 408--The specification must allege facts sufficient to come within one of the grounds for the refusal of a discharge," and should specify with particularity the manner in which the bankrupt offended," but may be amended," and, whre the record shows that the bankrupt kept no books of account, a general objection on that ground is sufficient." The objections will be held sufficient unless attacked by demurrer on motion " and may be based on a nondischargeable debt if it is provable in the proceedings."

\_Hearing, evidence and burden of proof.\_See 11 C. L. 408--The objections may be referred to the referee " who may consider only competent evidence " actually introduced " and must pass upon all the grounds of objection advanced." The burden is on the opposing creditors to clearly establish the grounds of objection." The referee cannot pass on the sufficiency of the specification of objections " nor can the creditors object to his refusal to do so."

\_Vacation of discharge.\_See 11 C. L. 408--A discharge can be vacated only for mat * 13Cur. Law. BANKruptCY SS 22B. 489

ters coming to the knowledge of the creditor after it was granted."1 The petition for the vacation of a discharge should be specific in its allegation."5

(SS 22) \_B. Grounds for a refusal."8-See 11 C. L. 400.\_The discharge may be withheld so as to permit creditors to enforce their claims against assets not recoverable by the trustee," and the discharge may be stayed as to debts scheduled in prior bankruptcy proceedings." The discharge of an honest debtor is favored by the law "8 and is the main object of the bankruptcy act," hence, a bankrupt is ordinarily entitled to his discharge unless some statutory objection thereto is sustained by the evidence," but, where the grounds of objection presented would justify the vacation of a discharge if granted, they will operate to bar the discharge though not specified in the act.3 Among the grounds for refusal of a discharge are commission of a crime against the provisions of the act," destruction of, or

- 94Creditors held guilty of laches, it ap-
- 2In re Brockman, 16S F 1015. Indulpearing that they had knowledge of matters urged as ground for vacation, and before discharge commenced suit attacking to bankruptcy, does not present ground for them, which was abandoned. In re Mauzy, 16S F 900. The burden is on the moving credit to show that he has not been
- 2Where, on application for discharge, guilty of laches. Id. Failure of creditors
- 95to take steps to have bankrupt examined
- 96I important on question whether they
- 97I observe guilty of laches barring relief by way
- 98I observe though they present no grounds for refusing the discharge under 14C. In

failure to keep, books of account with intent to conceal financial condition,\* obtention of property or credit by false statements,\* and transfer or concealment of property with intent to defraud creditors.\* The burden is on the bankrupt to ac-

goods or for their proceeds, and failed to

that failure to do so was with intent to

surrender or schedule such property or its

conceal financial condition. In re Schachter,

proceeds to the trustee. Seigel v. Cartel

170 F 683. Failure of partnership to keep

\[C. C. A.\] 164 F 691. Intentional concealment of financial condition is ground for

condition of the firm operates to prevent

the discharge of the partners thereof ex-

and records so as to conceal financial

compt as to partners who had no knowledge

dition was presumed to be intentional. In

re Goldsich, 164 F 882. Where an applica-

(Id.), the latter, however, having the bur-

tion for discharge is resisted on the ground

that bankrupts aided and assisted in a

rance of the wrongdong (Id.). A partner

transfer of their property to a creditor by

means of the foreclosure of a chattel mort-

false financial statement made by another

gage previously given by them, the question whether such acts are sufficient to bar

thered is not concluded thereby on his

their discharge depends upon the validity

of the foreclosure. In re Olansky, 163 F

428. Where a determination of the ques-

588, rvg. In re Hardie & Co., 143 F 67.

tion whether the bankrupts fraudulently

concealed property from their trustee

gating $3,000 on books held to be in

pends upon whether a foreclosure of a

therance of intent to conceal financial

contailed mortgage under which they assisted

dition of partnership, though record thereof

the mortgage in obtaining possession of

their property is valid, a discharge will

vast pocketbook, financial statements

not be granted until the validity of the

made from regular books and not in-

chattel mortgage is determined in an ap-

cluding such borrowed money. In re

propriate proceeding. Id. That bankrupt,

Pomerantz, 168 F 444.

when he made a general assignment

Frawed upon or detriment to creditors is

benefit of his creditor, failed to turn over

not essential to this ground of objection.

to assignee rent of farm belonging to bank-

In re Schachter, 170 F 683. Failure to make

rapits father prohibut bankrupt was by his

father permitted to receive as a gift, does

not present a valid objection to discharge.

In re Sonber, 169 F 727. Bankrupt denied

discharge where he failed to list in sched-

ceditors. In re Hanna \[C. C. A.\] 168 F

ules his equity in property which he had

conveyed to his wife for purpose of

frauding creditors. In re Gullbert, 169 F

149. Concealment of assets by one part

ner without the knowledge or consent of

the other will not deprive other member

of right to discharge. In re Schachter, 170 F 683.

F 683.

Failure to keep books: Evidence held

sufficient to sustain master's finding of

failure to keep books of account. In re

Murray, 162 F 983.

Intent to conceal: In order that the

destruction of his books by a bankrupt may

be a valid ground for a refusal to

discharge, they must be destroyed with intent

to conceal his financial condition. In re

Murray, 162 F 983; In re Brockman, 168 F

1015. More negligence in keeping books

and failing to make entries therein, in the

absence of intent to conceal financial condition does not warrant a refusal to discharge. In re Haskell, 164 F 801. Discharge

denied for failure of books to account for

shrinkage of $10,000 worth of assets in 13

months, failure being held an intentional

omission. In re Brod, 166 F 1011. Payments to bankrupt's relatives, aggregating

fales financial statement made by another

65,000 made shortly before bankrupt

not entered on books of account held in ab-

sence of explanation to justify finding of

failure to make entries for purpose of

coaling financial condition. In re Haskell,

164 F 201. Failure of firm to make entry

showing purchase of goods unsuitable to

their business held to raise presumption

that failure to do so was with intent to

conceal financial condition. In re Schachter,

proceeds to the trustee. Seigel v. Cartel

170 F 683. Failure of partnership to keep

books with intent to conceal the financial

ment of financial condition is ground for

condition of the firm operates to prevent

the discharge of the partners thereof ex-

and records so as to conceal financial

cept as to partners who had no knowledge

direction was presumed to be intentional. In

thered and did not participate therein

re Goldsich, 164 F 882. Where an applica-

(Id.), the latter, however, having the bur-

don of showing their innocence or ignoro-

that bankrupts aided and assisted in a

rance of the wrongdong (Id.). A partner

transfer of their property to a creditor by

who did not participate in a materially

means of the foreclosure of a chattel mortgage

false financial statement made by another

member of the firm and had no knowledge

then hired is not concluded thereby on his

ap- 13 Cur. Law. BAXRUPTCY SS 22C. 491

count for property not scheduled but shown to have been in his possession shortly before bankruptcy,8 and the credibility and reasonableness of his explanation is for the court, in its judicial discretion, to determine." A discharge will not ordinarily be refused on account of transactions more than four months prior to the institution of the bankruptcy proceedings.10

(SS 22) \_C. Liabilities released and use of discharge.11--See 11 C. L. 410--The discharge operates to release the bankrupt from all provable claims 12 as against creditors whose claims were properly scheduled 13 or who had notice or actual knowledge of the bankruptcy proceeding,14 except, among others, liability for wilful and malicious injury to person or property 15 and claims growing out of the bankrupt's fraud,16 although the claimant may not have objected or persisted in an objection to the discharge,17 or may have proved his claim in bankruptcy and received dividends thereon.18 A debt discharge in one bankruptcy proceeding cannot be discharged in a subsequent proceeding,19 though the bankrupt made no application for discharge in the first proceeding.20 The burden is on the bankruptcy to his wife for purpose of defrauding Johnston v. Bruckheimer, 63 Misc. 248, 116 his creditors and therefore not entitled to discharge. Id. **S, 9.** Siegler V. Cartel \[C. C. A.\] 164 F 691. **16.** Discharge granted notwithstanding alleged fraud and neglect of bankrupt in failing to turn over all his property in in-solvency proceedings under state laws more than four months prior to institution of bankruptcy proceedings. In re Boner, 169 F 172. **11.** Search Note: See notes in 15 A. S. R. \*\*212; 23 Id. 112; 38 Id. 787; 94 Id. 556; 2 Ann. Cas. 268; 3 Id. 65, 168, 800; 5 Id. 771; 7 Id. 972; 9 Id. 646. **266**, 144-914, Prine. & S. 294; Dec. Dig. **113**,-Baker v. Hooks \[Ga. App.\] 64 SE 573. \*\*Claim for amount due on bankrupt subscription to stock of insolvent corporation is dischargeable. Barker v. Mozer \[Cal. App.\] 101 F 438. A. sold horse to B., retaining title thereto. B. traded the horse to C. Subsequently B. filed petition in bankruptcy and was discharged. Thereafter A. recovered the horse from C. Held C.'s claim against B. on his warranty of title was not provable at date of adjudication nor release by discharge. Baker v. Hooks \[Ga. App.\] 64 SE 573. **13.** Discharge in bankruptcy operates to discharge only as against such creditors whose claims are properly scheduled. Lutz v. Kalmus, 115 NYS 220. **14.** Lutz v. Kalmus, 115 NYS 230. **15.** Thompson v. Judy \[C. C. A.\] 169 F 553. Amendment of bankruptcy act where-by 5 17a(2) was amended so as to except liabilities for malicious injury instead of judgments therefor held only to change the act to the extent of excepting claims for malicious injury whether judgment was rendered upon it or not. Id. Did not operate to remove judgments for malicious injury from the exception. Id. In determining whether a judgment of a state court is for malicious and willful injury to the person, the bankruptcy court may look into the facts upon which the judgment is based. United States v. Petere, 166 F 618. Claim for damages for false imprisonment held not released by discharge in bankruptcy. **20.** In re Schnabel, 166 F 883. **17.** * 492 BANKruptCY SS 23. 13 Cur. Law.

rupt to show that a particular debt was discharged," but the discharge in bankruptcy will release liabilities not shown to be for willful or malicious injury.21 In a proper case the discharge may be set aside and amended so as to include a claim not capable of being scheduled at the time of the adjudication.22 Discharge of a tenant does not sever the relation of landlord and tenant or release the tenant from liability for rent to accrue.24

The discharge of the bankrupt does not satisfy the debt, but merely releases the debtor of his legal obligation to pay.25 The defense of discharge is, therefore, personal to the bankrupt and may be waived.26 A plea of discharge in bankruptcy, sustained by sufficient proof, ordinarily entitles the defendant to a judgment of nil capiat,27 and only in rare cases will a judgment against the bankrupt with a stay of execution be given instead,28 but a discharge will ot prevent the entry of a judgment against the bankrupt where necessary to enable the creditor to proceed against parties secondarily liable.29 In New York the bankrupt may in a proceeding based on his discharge obtain an order canceling all discharged judgments of record.30 Where the bankrupt is not discharged, the creditor is remitted to his former rights and remedies, subject to the adjudication of the issues over which the bankruptcy court had jurisdiction.31

- 493 A Amendment and reopening; grounds and effect.32 See 11 C. L. 493
- 494 C. L. 495 The giving of
- 495 BANKruptcy 496 A. 497 A. 498 A. 499 A.

false \[34\] or vague and misleading testimony in bankruptcy proceedings \[35\] and the fraudulent concealment of property from the trustee \[36\] on a conspiracy to do so \[37\] constitute offenses against the bankruptcy act, which cannot be retrieved by afterwards disclosing the property \[38\] or testifying truthfully \[39\] nor does a general description of assets in the schedules of the bankrupt constitute a defense to a charge of fraudulently concealing specific property from the trustee.\[40\] A corporation bankrupt may be guilty of concealing its assets.\[41\] Third persons aiding the bankrupt to that end are_equally amenable to the provisions of the bankruptcy law.\[42\] A valid adjudication is essential to prosecution of the bankrupt.\[43\] The indictment must sufficiently allege the offense charged \[44\] and must be found within the time limited by law,\[45\] but, where it charges a conspiracy to_commit a crime under the bankruptcy act, it is not limited by the provisions of that act.\[40\] The schedules filed by the bankrupt cannot be introduced by the prosecution \[47\] but may be admitted at the instance of the bankrupts.\[48\] The admissibility of testimony generally is governed by rules applicable to criminal prosecutions.\[49\]

**34.**: **Kern v. U. S. \[C. C. A.\] 169 F 617.**

Bankrupt willfully testifying falsely throughout examination held guilty of contempnt. In re Gikkin, 164 F 71.\*\*

**35.**: **Bankrupt willfully answering questions so as to give no information and disclaimments knowledge of matters obviously within his knowledge held guilty of contempt. In re Gikkin, 164 F 71.**

**36.**: **Kern v. U. S. \[C. C. A.\] 168 F 617.**

Bankrupt is punishable for concealing his assets from the trustee, under Rev. St. \[50\], 3433. John-son v. U. S. \[C. C. A.\] 168 F 69. There could be no such concealment where it was charged that trustee was a party conspira-tor to alleged concealment. Id. The failure of a bankrupt to list property in his schedules does not constitute the offense of concealing from the trustee property belonging to the estate. Offense consists of a continuous concealment of property during the whole course of the bankruptcy proceedings. Johnston v. U. S. \[C. C. A.\] 168 F 30. To prove continuous concealment of property by a bankrupt, it is not necessary to take up each moment of the bankrupt's life while the proceedings lasted. Id. \[51\], 3676, to conceal property from the trustee in violation of the Bankruptcy Act (Act July 1, 1898, e. 541, 30 Stat. 544; U. S. Comp. St. 1801, p. 3418). Id.\*\*

**35.**: **Indictments must be found in once a continuous concealment of property during the whole course of the bankruptcy proceedings. Johnston v. U. S. \[C. C. A.\] 168 F 30. To prove continuous concealment of property by a bankrupt, it is not necessary to take up each moment of the bankrupt's life while the proceedings lasted. Id. \[52\], 3676, to conceal property from the trustee in violation of the Bankruptcy Act (Act July 1, 1898, e. 541, 30 Stat. 544; U. S. Comp. St. 1801, p. 3418). Id.**

**36.**: \*\*Lid.

**13** Cur. Law. BASTARDS $ 3.

**Status making the putative father liable, and enforcing such liability by imprisonment, are a proper exercise of the police power.**" Proceedings under the\*\* **bastardy act are generally said to be civil in character.**" but are anomalous and partake of the nature of both civil and criminal proceedings,**" and have been held not within a grant of jurisdiction over criminal cases**" or within a rule that a magistrate loses jurisdiction in criminal cases by an unauthorized continuance even at defendant's request,**" and, on the other hand, statutes relating to appellate procedure in civil cases have been held inapplicable.**" Action to compel the support of a bastard cannot be maintained by a married woman.**" While the proceeding is in part at least for the public benefit,**" the mother may by a fair settlement preclude herself from further claim.**" Appearing and going to trial without objection waives formal defects in the warrant**" or complaint.**" The child may be exhibited to jury to show resemblance to the putative father,**" but where such evidence is not admitted, an attorney cannot comment on child's resemblance to father in his argument,**" and such error cannot be cured by objection to argument.**" It is proper to show intercourse with other men at or about the time of conception.**" The period of gestation is a matter to be considered by the jury.**" Self-serving declarations of the prosecutri are inadmissible.**" Evidence of the good character of defendant is admissible.**" Relatrix is not a party to a prosecution for bastardy, but only a witness,**" and may not take an appeal**" and is not required to make an affidavit on appeal,**" but the state may adopt and ratify such appeal as its own.**" The proof must be clear and satisfactory,\*\*" and a conviction, resting substantially upon uncorroborated testimony of the mother, which in **78**. Warrant was not issued as prescribed, but no question was raised as to its insufflingency before examining magistrate. Heide-245; Dec. Dig. $ 8, 19-94; 5 Cryc. 644-675; 3 A. & E. Enc. P. & P. 266.

**69**, Land v. State, 84 Ark. 199, 105 SVW 90.

**70**. Proceedings to recover lying in expenses and certain monthly payments for support of child. Wimberly v. State \[Ark.\] 119 SVW 66s. Affiliation proceeding a civil action. Heidemann v. Novon \[Neb.\] 119 SVW 257.

**71**. Not clausible with either civil or criminal cases in general sense of those terms. It has characteristics of both. and rules of practice therein are applicable as feature happens to be civil or criminal. Goyke v. State, 186 Wis. 557, 117 NVV 1027.

**72**. Exclusive jurisdiction is in municipal court under Laws 1895, 24, and transfer to circuit 'court for prejudice not allowed. Goyke v. State, 186 Wis. 557, 117 NVV 1027.

**73**. Heidemann v. Novon \[Neb.\] 119 NVW 257.

**74**. Code Civ. Proc. $ 1237, not applicable. People v. Cuklin, 60 Misc. 414, 113 NYS 581.

**75**. Velech v. Cilburne \[Miss.\] 49 184; 184. People v. Griffin, 142 Ill. App. 588.

**76**. Land v. State, 84 Ark. 199, 105 SVW 90.

**77**. State v. Meier \[Iowa\] 118 NWV 792.

**78**. Sentiment of bastardy proceedings is **smf-** element consideration for promasory note. Griffin v. Chrisiwisser \[Neb.\] 120 NWV 909. It is no defense to such note that guardian of Infant marker made unlawful agreement not to prosecute father for rape, unless infant knowingly participated in such unlawful agreement. Griffin v. Chrisiwisser \[Neb.\] 120 NWV 909.

**79**. Warrant was not issued as prescribed, but no question was raised as to its insufflingency before examining magistrate. Heide-245; Dec. Dig. $ 8, 19-94; 5 Cryc. 644-675; 79. Failure to state that child, if born alive, would be a bastard. Collister v. Ritzknupt \[Neb.\] 120 NWV 489.

**80**. Land v. State, 84 Ark. 199, 105 SVW 90:

**81**. Attorev took child in his arms and commented on reeemblance it bore to defendant. State v. Meier \[Iowa\] 118 NVV 792.

**82**. State v. Meier \[Iowa\] 118 NVV 793.

**83**. State v. Meier \[Iowa\] 118 NVV 792.

**84**. There was **evidence** that relator had had had sexual intercourse with three other men.

**85**. Heid error to instruct jury that there was some evidence that relator had had intervenourse with other men and tell them purpose of such testimony. Id.\*\*

**86**. Period of gestation of child differed from length of time between birth of child and date of intercourse. Collister v. Ritzknupt \[Neb.\] 1 connection with her contradictory statements makes it very uncertain whether justice has been done, will be reversed.92

Footnote 9: Always begin with the latest article on the subject. Use the latest topical index.

**SS 4.**\_Legitimation, recognition, and adoption.92-See 11 C. L. 416--An illegitimate child may be legitimated by recognition and adoption,94 or by the intermarriage-of its father and mother,95 and the father may legitimatize a child without the consent of its mother.96 When adoption takes place, all the reciprocal responsibilities and duties between a father and a legitimate child obtain between them,97 and it acquires the legal status of a legitimate child from birth,98 and thereafter has the settlement of the father.99 Less exact proof is required of a legitimatizing marriage fifty years back and between slaves,1 and the declarations of those who knew the parties are admitted.2 Statutory legitimation affects only those within the terms of the statute.5

**Beneficial Associations; Beneficialaries; Betterments, see latest topical index.**

**BETING AND GAMIING.**

_The scope of this topic is noted below.4_

\*\*SS 1.**The Offense and Criminal Prosceen- 8 2. Penalties and Selzure of Implements, 500.**

**A. The Offense, 496.**

**B. Indictment or Information and Trial**

**Procedure, 499.**

**SS 1.**_The offense and criminal prosecutions. A. The offense.5 See 11 C. L. 417_

The terms "gaming" and "gambling" in the administration and interpretation of criminal laws are usually regarded as synonymous.6 A banking game of chance is one in which the banker or exhibitor is interested in the result of the play.7 A "device or apparatus for gambling" is a device or apparatus designed for carrying on the actual gambling, for determining whether the player is to win or lose.6 The use of an article as a gambling device determines its illeality,9 but in some

\*\*92.\*\*Act of intercourse alleged by plain- 92 that issue of slaves whose parents weretill, and place where it was consummutated as testified to by plaintiff, did not seem reasonable. Webb v. Hill, 115 NYS 267.

\*\*93.\*\*Senenen Notei See note in 1 L. R. A. (N. S.) 773.

See. also, Bastards, Cent. Dig. $$ 13-18; Dec. Dig. $$ 19-14; $ Cyc. $$23-654, $$68-639; 3 A. & E. E. Enc. (L. (2ed.) $$95.

\*\*94.\*\*Father publicly acknowledged the child as his own, received it as such, with the consent of his wife, into his family, and otherwise treated it as though it were legitimate. Allison v. Bryan \[Okl.\] 97 P 282.

\*\*95.\*\*Parents believed their first marriage was valid, and subsequently learning it was void, as wife had husband living, they had a second marriage. Inhabitants of Wellington v. Corinna \[Me.\] 71 A $$89.

\*\*96.\*\*Under $ 36, art. 2, c. $$ ($ 3795), Wilson's Rev. & Ann. St. 1903. Allison v. Bryan \[Okl.\] 97 P 282.

\*\*97.\*\*He is charged with its support and is entitled to its custody, service, and earnings. Under $ 36, art. 2, c. $$ ($ 3795). Wilson's Rev. & Ann. St. 1903. Allison v. Bryan \[Okl.\] 97 P 282.

\*\*98.\*\*Allison v. Bryan \[Okl.\] 97 P 282.

\*\*99.\*\*Inhabitants of Wellington v. Corinna \[Me.\] 71 A $$89.

\*\*1, 2.\*\*Dunn v. Garnett \[Ky.\] 112 SVW $41.

\*\*3.\*\*Laws 1879, p. 136, c. $$ 73, making legiti- 92.

\*\*10.**Gaming devices are not noxious per se.** states the keeping of certain devices is an offense whether they are kept for gambling purposes or not.\[10\] To be illegal a game must be within the statute \[11\] and must be played for a wager \[12\] which may, however, be made without express agreement.\[13\] The New York statute as to recording bets applies only to persons engaged therein as a business.\[14\]

\_Validity of regulations.\[8\]_See 11 C. L. 418_--The extent of the power of municipalities to regulate or prohibit gaming depends on the terms of their charters and the general laws under which they act.\[15\] An ordinance providing that any one found in a gambling house shall be punished by fine is not a proper exercise of the police power.\[16\]

\_Cards and other table games.\[8\]_See 11 C. L. 418_--The statutes of different states usually penalize playing cards \[17\] or dice,\[18\] for gain, keeping a gaming table and bank,\[19\] keeping a pool table in connection with a dram shop,\[20\] or keeping gambling devices.\[21\] Playing cards is an offense under the Texas statute unless played at a private residence occupied by a family.\[22\]

\_Racing and race tracks.\[8\]_See 11 C. L. 419_--Promoting and aiding in operating a betting book upon a horse race is generally prohibited.\[23\] The receiving of a sum

Illegal use must be proven. State v. Derry \[10\] fusing to allow him to conduct such business. Levy v. Kansas \[C. C. A.1\] 168 F 524. \[11\]. Note error to refuse to charge that evidence must show beyond a reasonable doubt that defendants kept such device "for the purposes alleged in the information." People v. Leach, 143 Ill. App. 442. \[12\]. Betting upon game of golf not a crime. People v. Sheriff of Nassau County, 60 Misc. 326, 112 NYS 154. \[13\]. Under Ballinger's Ann. Codes & St. $ 1268 (Pierce's Code & St. $ 1885), to constitute a crime, the game of chame must be played for gain. State v. Burns \[Wash.\] 102 P 856. Not an offense, under Laws 1903. B, 63, e. 51, when game is played in place which is not a gambling resort. Id. \[14\]. Whether Isser in ten min game paid did not depend upon express agreement. Taylor v. State \[Tex. Cr. App.\] 115 kV 87. \[15\]. Pen. Code, $ 351, does not make bet, upon result of game of golf recorded on card, a crime. People v. Sheriff of Nassau County, 60 Misc. 326, 112 NYS 154. \[16\]. Where statutes did not denounce playing cards as unlawful unless carried on in view of public highway or street, an ordinance penalizing the playing of cards for money in any and all places within the corporate limits of a city, which had no special power to suppress gambling, was not warranted. Town of Marksville v. Worthey \[La.\] 49 S 11. Fact that city had "power to remove all nuisances" did not give it the power to suppress card playing for money otherwise than provided by statute. Id. Where city in its special charter was given power to restraint or prohibit keeping of billiard and pool tables, etc., within its borders, passed ordinance making it unlawful for any person to engage in operating and running pool room, billiard room, etc., one who had state license to operate such had no right to operate same in such city. City of Corinth v. Crittenden \[Miss.\] 47 S 525. Where the statute (Ses. Laws 1835, p. 24. 155) prohibited pool selling and bookmaking, an ordinance allowing such was in effective; therefore, one who had paid license to city had no effect to recover such license upon city re- 13 Curr. L.--32. \[17\]. The resulting of a sum of money in payment of an oral bet, made between two individuals upon a race track upon the result of a race then and there to be run, is not a crime under the New York statute.\[24\]

_Slot machines._\[See 11 C. L. 410--Slot machines, where the chances are unequal, with chances in favor of the machine, are ejusdem generis with "gambling games" specifically mentioned in the statute of New Mexico.\[28\]

_Dealing in futures_\[26\] on margins where no actual delivery is contemplated, and maintaining or keeping a place where such transactions are carried on, are generally prohibited.\[28\]. Where either party contemplates actual delivery under the contract, there can be no conviction \[27\] and where a statute provided punishment for dealing in futures, it must appear that the contract was made and consumed within the state.\[28\]

_Gaming at public places._\[See 11 C. L. 420--One who plays cards in his own house does not commit the offense of playing cards in a public place unless the playing is or can be seen from a public road.\[29\]

_Keeping a gaming place._\[See 11 C. L. 420--The keeping of a gaming house or assisting in keeping such is a statutory crime in most states,\[30\] but one merely found in a gambling house is not guilty of a crime.\[81\] A single offense is sufficient to sustain a conviction.\[32\] The keeper of a place where pool selling on horse races is carried on is a keeper of a gambling place.\[33\] The fact that the place where gambling is conducted is a private residence does not prevent it from being a gambling house.\[34\]

"Owners," as used in statute of Louisiana, 1895. art. 377, such fact must be shown; are those who conduct the betting by using "betting books," sheets, tickets and other devices, and statue includes "agents" and "employees" within its prohibitive terms and those who are interested in the bookmaker's book. State v. Scheffield \[La.\] 48 $32.

**24.** Pen. Code, $351, as amended by Laws 1908, p. 1373, c. 507, relating to pool-gelling, bookmaking, bets and wapers, etc., does not make such act a crime. People v. McLaugh-lin, 128 App. Div. 599, 113 NYS 188, afg. 60 Misc. 506, 113 NYS 306.

**25.** Slot machines are "banking games" and come within inhibition of Laws 1907, c. 64, 25, $ 1. Territory v. Jones N. M.J 99 P 388.

**26.** See 11 C. L. 419. See, also, Gambling Contracts for validity and civil remedies. 26a. Under Hurd's Rev. St. 1908, c. 38, $ 137a, it is unlawful for any person or corporation to keep any bucket shop or other place wherein is permitted pretended buying or selling of any shares of stock of any corporation on margins or otherwise. Field that when it was alleged that person kept place where was permitted pretended buying and selling of shares of stocks and bonds of "certain corporations," and evidence showed but one sale of ten shares of "Philadelphia & Teading." and corporate existence was not proved, conviction could not be sustained as static did not prohibit pretended sales of stocks issued by persons, partnerships, or associations. People v. Wirsching, 239 Ill. 522, 88 NE 169.

**27.** The understanding of one of the parties to the contract is not decisive of the question, therefore, it was error for court to so charge the jury. Salmon v. State \[Tex. Cr. App.\] 120 SWV 427.

**28.** To constitute a violation of Pen. Code 13 Cur. Law. BETTING AND GAMIing SS 1B. 499

(SS 1) _B. Indictment or. information and trial procedure._\[25\] See 11 C. L. 499

The information must charge the essential elements of the offense,\[38\] and must not charge. more than one offense against the statute, in the same count.\[37\] An indictment for running a gambling house is not necessarily open to objections for duplicity merely because some of its allegations relate to the separate offense of exhibiting gaming devices.\[38\] An indictment in the language of the statute is sufficient when the acts constituting the crime are defined by the statute.\[9\] While an information for unlawfully keeping a pool table may not be as technically accurate as good pleadings might require, it is sufficient if it charges the offense with sufficient particularity to advise the defendant with what he is charged.\[40\] An indictment which charges that the defendant "did aid, abet or assist," etc., is defective because the offense is charged in the alternative.\[41\] The name of the offense is controlled by the acts charged, and the name of the charge is immaterial,\[42\] but a material variance between the complaint and information is fatal.\[43\] Under a statute, prohibiting the playing of cards except at a private residence, an indictment is sufficient which alleges that the game was not played at a private residence,\[44\] but, if allegations are made descriptive of the place, such allegations will

\\begin{tabular}{l l} offense for one to permit any prohibited & necessary that gambling house visited be \\ game to be played on his premises, such be- & designated. State v. Bridgewater \[Ind.\] 85 \\ ing a public place. Simons v. State \[Tex. & NE 715. Need not allege that defendant \\ & went to gambling house for purpose of \\ & gambling; but burden is on defendant to \\ & 38 218-305; Dec. Dig. SS 82-106; 20 Cyc. SS89- & show excuse for going there, if any. Id. \\ & 917; 11 A. & A. & E. Panc. L (2ed.) 689, 724; & A.

be considered descriptive of the offense and must be proved as laid.\[48\] The averment of the locus in quo is a material averment, proof of which is essential to conviction.\[46\] In a prosecution for exhibiting a gambling device, the burden is on the state to show that accused was interested as banker or exhibitor,\[47\] but in a prosecution for receiving pay from the losing man in a game, it is not necessary for the state to prove such was the custom.\[48\] Where one has been convicted of gaming, he cannot set such conviction up as a bar to a subsequent prosecution for gaming with a minor, based upon the same game.\[49\] The credibility of a witness for the state may be attacked by showing his interest in a pending civil suit against accused for the recovery of money lost at gaming at the time covered by the information.\[50\] Under the Texas statute one who testifies against another in a gaming case is not an accomplice.\[51\] Where the accused is indicted for maintaining a nuisance by keeping a pool room at a certain place, the instructions should limit the conviction for keeping the nuisance at the place mentioned in the indictment.\[52\] The exclusion of testimony of witnesses that when state's witness entered that they were not engaged in playing any game,\[53\] or of evidence that prosecuting witness was some distance away when the game in question was being played,\[54\] is not such error as to authorize a reversal of the case. Where the accusation contains more than one count charging the accused with the offense of gaming, a general verdict will be upheld, it appearing that the accusation charges but the one offense of gaming.\[55\]

SS 2. \_Penalties and seizure of implements.\[56\]\_See 11 C. L. 421.\_Gaming devices cannot be destroyed by the state without proof that they were kept or used for unlawful gaming.\[57\]

Though the keeping of a gambling house is a criminal nuisance, punishable and abatable by indictment and conviction, there is no jurisdiction in equity to abate it, at the instance of either an individual or the state, unless it appears to be

**45.** Where indictment alleged that game was played in the woods, It was error for 880.

court to ignore such fact in its charge to the jury. McAllister v. State \[Tex. Cr. App.\] 116 SW 582.

**46.** Where indictment charged the keeping of a room at number 239 E. Twenty-second street, in Chicago, for gambling purposes. proof of the keeping of such a room at corner of Decarbon and Twenty-second streets, in Chicago, is not sufficient. People v. Lewis, 140 III. App. 493.

**47.** Proving merely that accused was a participant is not sufficient. Tully v. State \[Ark.\] 114 SW 520.

**48.** Though state contended it was the custom of accused to receive fees from loser, and accused contended the contrary, instruction that jury must believe from the eviction that it was the custom of accused was properly refused. Taylor v. State \[Tex. Cr. App.\] 115 SW 87.

**49.** Kirby's Dig. $\\lx@sectionsign$ 2414 held not to bar such prosecution. Sparks v. State \[Ark.\] 114 SW 1183.

**50.** People v. Peltz, 143 Ill. App, 181.

**51.** Therefore not necessary to instruct on law relating to accomplices. Riddel v. State \[Tex. Cr. App.\] 116 SW 1145.

**52.** Instruction authorizing jury to convict accused for keeping pool room any where in certain county was erroneous. Ehrlich v. Com. \[Ky.\] 115 SW 797; Bernero v. Com. \[Ky.\] 116 SW 812; Ehrlich v. Com. \[Ky.\] 116 SW 315.

Sever 115.\*\* In this section, we will use the following notation:

- \[1\] 116 SW 812; Ehrlich v. Com. \[Ky.\] 116 SW 315.

**53.** In this section, we will use the following notation:

- \[1\] 117 SW 812; Ehrlich v. Com. \[Ky.\] 118 SW 315.

**54.** In this section, we will use the following notation:

- \[1\] 118 SW 812; Ehrlich v. Com. \[Ky.\] 119 SW 315.

**55.** In this section, we will use the following notation:

- \[1\] 119 SW 812; Ehrlich v. Com. \[Ky.\] 116 SW 315.

**56.** In this section, we will use the following notation:

- \[1\] 119 SW 813; Ehrlich v. Com. \[Ky.\] 116 SW 315.

**57.** In this section, we will use the following notation:

- \[1\] 119 SW 814; Ehrlich v. Com. \[Ky.\] 116 SW 315.

**58.** In this section, we will use the following notation:

- \[1\] 119 SW 815.

**59.** In this section, we will use the following notation:

- \[1\] 120 SW 816.

**51.** In this section, we will use the following notation:

- \[1\] 121 SW 817.

**51.** In this section, we will use the following notation:

- \[1\] 122 SW 818.

**51.** In this section, we will use the following notation:

- \[1\] 123 SW injurious to personal or property rights and the injury is not otherwise adequately remediable.\[68\]

SS 3. _Recovery back of money lost._"See 11 C. L. 421.--The rule is not of universal application that, where parties voluntarily engage in a gambling transaction, the law will hold them to be in pari delicto and that there cannot be a recovery by one of the parties from the other,\[60\] but usually there is no right to recover money lost, at gaming, unless such right is conferred by statute.\[61\] A statute which provides for the recovery of money lost in a gambling transaction applies to modes of gambling which were not known at the time such statute was passed.\[42\] An action to recover money lost at gaming is an action ex contractu.\[63\] The statute of Ohio providing that a loser may recover money lost at gaming is a statute of limitations;\[64\] and another statute of the same state providing that one who loses money at gambling may have a lien for the amount of his loss on the premises where the business is carried on " does not give the loser in a bucket shop venture a lien before he brings a suit to subject.\[66\] One who has recovered a judgment in one state for money lost in "futures" may maintain an action on such judgment in another state.\[67\] Persons engaged in a gambling business to whom money has been lost may be sued jointly or severally by the loser,\[68\] and in a suit in equity to recover money lost, the defendant may also recover back money lost by him to plaintiff.\[69\] One who has been invited, persuaded, or induced, by another \[70\] or his agent,\[71\] to enter his place and there engage in a gambling game, may recover \[72\]

SSs. Preliminary injunction, inhibiting defendants from carrying on a "turf exchange" for purpose of betting on horse races, dis-solved, as lower court had no right, under circumstances, to grant such injunction. State v. Ehrlick \[TW. Va.\] $4 SE 935. But where such a fact is shown, equity will re-strain the unlawful use of the property. Xespass v. Com. \[Ky.\] 115 SWV 1131. While the chancellor may not enjoin persons from operating a poolroom anywhere, yet he may enjoin them from using the property for such purpose. Id. \[50\] Search Note: See note in 8 Ann. Cas. 189. See, also, Gaming, Cent. Dig. SS 76-107. Dec. Dig. SS SS 39-50; 20 Cyc. 954-956. \[60\] Held that, though plaintiff sought to perpetrate a fraud, he was entitled to recover money lost upon a fake fight which failed to materialize. Auxer v. Llewellyn, 145 Ill. App. 265. \[61\] Johnson v. Collier \[Ala.\] 49 S 761. \[62\] Under Code 1904, $ 2837, which was first introduced into 1 Rev. Code 1819, c. 147, $ 3, p. 562, where stock gambling was unknown, recovery may be had for money lost. McIntyre v. Smyth, 108 Va. 738, $ 2E SE 930. \[63\] Therefore defendant may set up his claim to exemptions. Johnson v. Collier \[Ala.\] 49 S 761. \[64\] Under Rev. St. $ 4270, where interval of more than six months occurs between loss of money and bringing of suit for recovery thereof, plaintiff is barred from prosecuting the action, notwithstanding defendant had made assignment for benefit of creditors, and plaintiff had presented claim for money so lost to assignee within six months of loss. Burrows v. Hussong, 12 Ohio C. C. (N. S.) 93. \[65\] Word "owner" in "I", St. $ 427, relating to gaming, includes one who is lesse as well as owner of fee. Hence, interest of leasee, of premises, who subjects same to one who, with knowledge and permission of such any money lost \[72\] in such game, and it is immaterial whether the game was fairly or unfairly conducted.\[73\] Where a city charter does not confer upon the city exclusive jurisdiction to prevent gambling houses the circuit court has jurisdiction.\[74\]

## 10.1 Bigamy.

The scope of this topic is noted below.\[76\]

The offense.\[56\]\[11\]\[12\]\[13\]\[14\]\[15\]\[16\]\[17\]\[18\]\[19\]\[20\]\[21\]\[22\]\[23\]\[24\]\[25\]\[26\]\[27\]\[28\]\[29\]\[30\]\[31\]\[32\]\[33\]\[34\]\[35\]\[36\]\[37\]\[38\]\[39\]\[40\]\[41\]\[42\]\[43\]\[44\]\[45\]\[46\]\[47\]\[48\]\[49\]\[50\]\[51\]\[52\]\[53\]\[54\]\[55\]\[56\]\[57\]\[58\]\[59\]\[60\]\[61\]\[62\]\[63\]\[64\]\[65\]\[66\]\[67\]\[68\]\[69\]\[70\]\[71\]\[72\]\[73\]\[74\]\[75\]\[76\]\[77\]\[78\]\[79\]\[80\]\[81\]\[82\]\[83\]\[84\]\[85\]\[86\]\[87\]\[88\]\[89\]\[90\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[90\]\[91\]\[92\]\[94\]\[95\]\[97\]\[98\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[90\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[

## 13 Cur. Law. Bonds & 1.

### Bonds.

The scope of this topic is noted below.\[89\]

### The Instrument; Essentials and Valid- & 3. Terms and Conditions in General; In-ity, 503.

**2. Rights of Parties and Transferees, 504. & 4. Remeileds and Procedure, 505.**

The instrument; essentials and validity.\[90\] See 11 C. L. 424.--The distinction between a common-law bond and a statutory bond is that the latter conforms to a statute while the former does not, although such conformity may have been intended.\[91\] Hence, an instrument is not valid as a statutory bond where it fails to conform substantially to the statutory requirements,\[92\] but a departure from the language of the statute in immaterial particulars will not destroy it as a statutory obligation.\[93\] On the other hand, an instrument void as a statutory bond may nevertheless be valid as a common-law obligation,\[94\] but it will not be so construed if the liabilities of the sureties be thereby enlarged,\[95\] or if the liability would be such as was not contemplated by the parties.\[96\]

_Consideration._ See 11 C. L. 424.--An alteration of a bond by one of the sureties, changing it from a joint to a joint and several bond, before delivery, does not invalidate

threats, as distinguished from extortion by public officers (see Extortion\*) and from robbery (see Robbery\*). Excludes, also, the offense of making threats without intent to extort (see Threats\*), libel and slander\*), and matters common to all crimes (see Criminal Law;*) indictment and prosecution*).

**SS.** Act March 30, 1901, $ (Laws 1901, p. 494, c. 93) held invalid under Neb. Const. art. 3, 15, relative to special legislation and also under U. S. Const. Amend. 14, $ 1, guaranteeing equal rights and protection of laws. Greene v. State \[Neb.\], 115 NUV 6.

**SS.** Treats of bonds generally. Excludes bonds in their aspect as negotiable or non-negotiable instruments (see Negotiable Instruments;*). In the peculiar connection with particular relations (see such topics as Agency, * 4: Appendices;*). Ballment, * SS 3, 3: Warehousing and Deposits;*). Excludes, also, particular kinds of bonds, such as municipal bonds (see Municipal Bonds), corporate bonds (see Corporations, * SS 16c; Railroads, * SS 12), private indemfirming bonds (see Building and Construction Contracts, * 12; Insurance, * SS 5-24; Mechanics' Liens, * 11; Public Works and Improvements, * SS 6; toxicating Liquors, * SS 6), public indemfiring and security bonds (see Surety of the Peace;*).

**SS 1.** The instrument; essentials and validity.\[90\] See 11 C. L. 424.--The distinction between a common-law bond and a statutory bond is that the latter conforms to a statute while the former does not, although such conformity may have been intended.\[91\] Hence, an instrument is not valid as a statutory bond where it fails to conform substantially to the statutory requirements,\[92\] but a departure from the language of the statute in immaterial particulars will not destroy it as a statutory obligation.\[93\] On the other hand, an instrument void as a statutory bond may nevertheless be valid as a common-law obligation,\[94\] but it will not be so construed if the liabilities of the sureties be thereby enlarged,\[95\] or if the liability would be such as was not contemplated by the parties.\[96\]

_Consideration._ See 11 C. L. 424.--An alteration of a bond by one of the sureties, changing it from a joint to a joint and several bond, before delivery, does not invalidate

threats, as distinguished from extortion by public officers (see Extortion\*) and from robbery (see Robbery\*). Excludes, also, the offense of making threats without intent to extort (see Threats\*), libel and slander\*), and matters common to all crimes (see Criminal Law;*) indictment and prosecution*).

**SS.** Act March 30, 1901, $ (Laws 1901, p. 494, c. 93) held invalid under Neb. Const. art. 3, 15, relative to special legislation and also under U. S. Const. Amend. 14, $ 1, guaranteeing equal rights and protection of laws. Greene v. State \[Neb.\], 115 NUV 6.

**SS.** Treats of bonds generally. Excludes bonds in their aspect as negotiable or non-negotiable instruments (see Negotiable Instruments;*). Non-negotiable Paper *), and in their peculiar connection with particular relations (see such topics as Agency, * 4: Appendices;*). Ballment, * SS 3, 3: Warehousing and Deposits;*). Excludes, also, particular kinds of bonds, such as municipal bonds (see Municipal Bonds), corporate bonds (see Corporation, * SS 16c; Railroads, * SS 12), private indemfirming bonds (see Building and Construction Contracts, * 12; Insurance, * SS 5-24; Mechanics' Liens, * 11; Public Works and Improvements, * SS 6; toxicating Liquors, * SS 6), public indemfiring and security bonds (see Surety of the Peace;\*).

**SS 1.** The instrument; essentials

**504**: **Bonds $\\lx@sectionsign$ 2.**

it as a joint bond, the change having been made without the knowledge of the obligee.97 Where the statute requires that the bond shall be entered into by the principal, the requirement is only met when the bond is signed by the principal or by some one authorized by him to sign his name thereto.98

_Delivery.See 11 C. L. 425_--In order that a bond may be effective, there must be an acceptance,99 but if an absolute obligation, intended to take effect upon delivery, there need be no notice of acceptance.1

**5**: _2. Right of parties and transferees._? See 11 C. L. 425

**5**: _3. Terms and conditions in general; interpretation and legal effect._?-See 11 C. L. 425\_--Bonds are to be construed in accordance with the recognized rules for the interpretation of contracts,4 and like other contracts are to be construed, if possible, so that they may have effect, and to the end that the purposes and the intentions of the parties executing them may be promoted rather than defeated.' The interpretation of the language of a bond must be confined to the usual and ordinary meaning of the words used,\* and the intention must be adjudged to be expressed in the bond itself, which is the contract of the parties and alone binds them.7 The rule that a strict construction of the bond is to be indulged in favor of the obligors is always infored for the protection of sureties, and does not apply where the action is prosecuted against the principal alone, it having been dismissed as to sureties.8 Where the undertaking of the bond is general, and the conditions are preceded by recitals, the operation of the bond will be kept within the recitals.9 In construing a statutory bond, reference must be had to the statute,10 and a mistake in naming the obligee may thus be rendered immaterial,11 but when each of two sections of equal force, in the same statute, provides for a bond and the provisions are at variance, the language of the bond must determine under which section it was given.12 A bond is not a lien on the property of the promisor in the absenceof a statute or covenant expressly making it such,13 and where there is such a statute, it must be strictly complied with in order to create the lion.14

SS 4. \_Remedies and procedure.15--\_Boe 11 C. L. 420--\_An action to enforce a penalty for the violation of the conditions of a statutory bond cannot be sustained unless the bond is in conformity with the provisions of the statute requiring its execution,16 and in such action neither the principal of estoppel nor the rule of equity, which regards that as done which ought to have been done, has any application.17 In most states a bond given for a third person's benefit is enforcible by him,18 but where a contract is made and a bond executed for the benefit of third persons not named, to enable such persons to sue on the bond, it must clearly appear, by the terms of the contract or bond, that they are of the class covered by the conditions of the bond.19 In the District of Columbia in case of a private bond under seal, a person not a party thereto, though it may have been intended for his benefit, cannot maintain a action at law thereon,20 but this rule does not preclude an action by the statutory obligee in a statutory bond given in connection with government contracts, though by mistake the bond is not made payable to such obligee.21

\_Pleading and evidence.\_See 11 C. L. 427--\_Where the facts recited in the declaration show performance on the part of the plaintiff as obligee in a bond of all its terms and conditions, a general allegation of performance is unnecessary.22 It is not necessary to set out the contract in haec verba,23 or to set out the bond,24 or to file a copy thereof,25 and, where the contract is sufficiently stated in the first count, it need not be repeated in subsequent counts.26 Where a copy of the instrument is attached to the complaint, it is immaterial by what name the instrument is called.27 Matters of evidence need not be alleged,28 and matters of defeasance need not be negatived by the plaintiff in the first instance.29 The enumeration of the various kinds of damage suffered does not render the pleading duplicitous.20 Where the plaintiff alleges and proves facts entitling him to recover on a joint bond, he is not precluded because he goes further and alleges and attempts to prove, but fails, that by a charge in the terms of the bond he is entitled to recovery as on a joint and several bond,31 nor are the defendants precluded from setting up a defense provided for a lien, "the requirements" of the former measure the obligation of the sw 811.

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

Footnote 30: The author is grateful to the anonymous referee for the support of this work.

Footnote 31: The author is grateful to the anonymous referee for the support of this work.

Footnote 32: The author is grateful to the anonymous referee for the support of this work.

Footnote 33: The author is grateful to the anonymous referee for the support of this work.

Footnote 34: The author is grateful to the anonymous referee for the support of this work.

Footnote 35: The author is grateful to the anonymous referee for the support of this work.

available as against a joint bond merely because plaintiff attempts to recover as on a joint and several bond.\[32\] A plea of non est factum raises no issue as to the amount of damages,\[32\] but only puts in issue the execution of the bond declared upon.\[24\] When such a plea is unverified, the plaintiff is not usually required to prove the execution of the bond.\[35\] The burden is on plaintiff to prove a breach.\[36\]\_Verdict and judgment.\_See 11 C. L. 426--A general verdict is an affirmative finding upon an issue as to whether bond sued on is the bond executed by the defendants.\[37\]

The right of recovery is limited by the condition of the bond,\[38\] and hence, under a bond conditioned for one's support, only such damages may be recovered, as the proof discloses that such person has suffered by reason of the violation of the conditions mentioned therein.\[39\] Interest may be allowed on the debt after it' is due, although the total sum exceeds the penalty,\[40\] but the interest which may be recovered is limited to interest from the time of breach.\[41\] Damages generally are treated in another topic.\[42\]

"Bottle" and "Can" Laws\] Bottomry and Respondentia; Bought and Sold Notes, see latest topical index.

## 10 Boundaries

The scope of this topic is noted below.\[48\]

- 1. Rules for Locating and Identifying, 506.
- 1. Establishment by Aequlescence, Esquerquer, or Adverse Possession, 516.
- 2. Bulgarian or Littoral Boundaries, 513.
- 3. Establishment by Agreement of Ad-
- 4. Establishment by Arbitration, Action joiners, 515. or Statutory Mode, 518.
- 5.1. \_Rules for locating and identifying.\[44\]\_See 11 C. L. 427--Presumptions must be indulged in favor of the accuracy of the work of the survey.\[45\] In case of dispute as to the division line between adjoining tracts, both claimed under original warrants, the first step is to ascertain, if possible, which tract was first located.\[46\] The lines and corners as actually run and established on the ground are usually controlling,\[47\] though the doctrine of practical location may be resorted to in proper

as on a joint bond, though he alleged and attempted to recover as on joint and several bond. Union Oil Co. v. Mercantile Refining * 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.1, 5.2, 5.3, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.5, 5.4, 5.5, 5.7, 5.8, 5.1, 5.2, 5.5, 5.9, 5.1, 5.2, 5.3, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.1, 5.2, 5.4, 5.5, 5.7, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.1, 5.2, 5.4, 5.5, 5.7, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.9, 5.1, 5.2, 5.4, 5.5, 5.7, 5.9, 5.1, 5.2, 5.4, 5.5, 5.

cases.48 Boundary lines are usually determined with reference to some description or plat.49 In determining the location of a boundary from the description in a deck, the general rules as to the construction of deceds apply,50 and a particular description will control a general one.51 Where the parties are mistaken as to the location of lines and corners called for in a deck, the lines must run in accordance with the intention of the parties,52 and when the evidence conflicts, the jury must determine the location of such lines.58 In other cases, also, the actual location of a line or corner is often a question of fact 54 dependent on the evidence adduced 58

determine a lost corner. Ramsey v. Morrow \[Ky.\] 118 SWV 296. Rule that in governor by lot and block number resulting in perary, and that correction back is made in case metes and bounds do not close, error line-City Reality Co. v. Newman, 128 App-being divided and lines and corners moved before being made permanent, does not apply in retracing permanent surveys to extent of moving established boundaries so as to include land not within government survey. Seebrock v. Coos Bay Ice & Cold Storage Co. \[Or.\] 102 P 175. In ejectment, evidence of such rule and map of premises involved, made on such theory, held inadmissible. Id.

48. See post, SS 4.

01. Description of land according to terminology employed in system of governmental surveys and plats necessarily refers to plats of those surveys, and conveyance according to official plats of the surveys does not include land not appearing on plat. Little v. Williams \[Ark.\] 113 SWV 340. Where lets can be readily located on the ground according to their own descripptions conforming to a plat, their boundaries will be located in accordance with such plat and cannot be affected by prior transfers by same owner, of other lots in same block under a prior plat. Toudouse v. Keller \[Tex. Civ. App.\] 118 SWV 185. Where tenements were divided by a party wall line. Kingsley v. Patterson \[Tex. Civ. App.\] and owners claimed under deceds calling for a straight line back to an alley, center line of party wall extending back to alley was true dividing line. Hastcher v. Richmond \[Tav.\] 82 NE \[Tex. Civ. App.\] 119 SWV 1166, & C. B. R. Co. \[Ya.\] 62 SE 99. Where part of military reservation actually occupied by military authorities was west of true east line to a fence and intermediate v. Boesley \[Or.\] 97 P 154. Plaintiff held not land was occupied by squatters, and United United States relinquished to city of San Fran-cisco for a street strip between east line and a point 80 feet west of east line "as established by United States authorities," line referred to as established by authorlies. Hastcher v.

under the usual rules governing its admissibility,56 weight,57 burden of proof,58 jury questions,59 instructions,50 and findings.61

ries of prior survey were certain and, covered all land claimed by plaintiff under subsequent patent, leaving nothing for him, checked number of feet from fence posts (Hackbarth v. Gordon \[Tex. Civ. App.\] 120) SW 591. On issue as to northerly terminate old finance. Keefe v. Sullivan County R. Co. of plaintiff's western boundary line, evidence held to sustain finding that, in measuring of said line of one hundred (Hackbarth v. Hobbs v. Hobbs \[N. H.\] 72 A 290. Testi- destroyed all land claimed by plaintiff under subsequent patent, leaving nothing for him, checked number of feet from fence posts (Hackbarth v. Gordon \[Tex. Civ. App.\] 120) SW 591. On issue as to northerly terminate old finance. Keefe v. Sullivan County R. Co. of plaintiff's western boundary line, evidence held to sustain finding that, in measuring of said line of one hundred (Hackbarth v. Hobbs \[N. H.\] 71 A 379.)

there held to sustain finding that, in measuring of said line of one hundred (Hackbarth v. Hobbs \[N. H.\] 72 A 290. Testi- destroyed all land claimed by plaintiff under subsequent patent, leaving nothing for him, checked number of feet from fence posts (Hackbarth v. Gordon \[Tex. Civ. App.\] 120) SW 591. On issue as to northerly terminate old finance. Keefe v. Sullivan County R. Co. of plaintiff's western boundary line, evidence held to sustain finding that, in measuring of said line of one hundred (Hackbarth v. Hobbs \[N. H.\] 73 A 290. Testi- destroyed all land claimed by plaintiff under subsequent patent, leaving nothing for him, checked number of feet from fence posts (Hackbarth v.

## 18 Cur. Law.

GUALS of other patents or decades calling for that line, reciatis of particular grant, testimony of persons who saw line or corners marked, held admissible. Thurman v. Leach \[Ky.\] 116 SWV 300. Heid competent for party to testify that line agreed on was run by a surveyor and marked and that, thereafter he took and held possession on his side. Hocker v. Keeton \[Ky.\] 116 SWV 784.

Secondary evidence: Where surveyor's many gave distances from streets referred to and streets were not at the time of surveyor located or used as indicated on map, and evidence of ascertained mounments was lacking, court could receive best evidence obtainable and could ascertain location of such stakes as were commonly recognized and used in lieu of lost or destroyed originals, and such stakes established boundary in absence of more specific evidence. Andrews v. Wheeler \[Cai.\] 103 P 144. In absence of fixed and official establishment of a corner by mounments, testimony of witness as to location of corner. A \[Tex.\] 117 SWV 110. Where parties claimed landing been present when survey was made, held insufficient. Seabrook v. Coos Bay Ice \[Acl.\] 102 P 795. On shroyd originals, and such stakes established boundary in absence of more specific evidence. Andrews v. Wheeler \[Cai.\] 103 P 144. Evidence that defendant's building encroached on gerald \[Tex.\] 115 SWV 50.

Masps, records, and documents: That petition in suit to establish boundary claimed only part of land described by patent and deed held not to render patent and deed inadmissible. Runkle v. Smith \[Tex.\] 102 P 353. Where parties claimed moved to plaintiff by an administrator, and was part of a survey described in deed as "Green's Bayou," evidence as to location of survey with reference to Green's Bayou and of probe proceedings was admissible in aid of description. McCullum v. Buckner's Orphans' Home \[Tex.\] 117 SWV 886. Where in plaintiff's declaration he referred to lines established in partition proceedings as boundaries of demanded premises, returns of partition commissioners were admissible against him to show length of lines and consequent dimensions of land divided. Hudson v. Webber \[Mc.\] 12 A 184. In trespass to try title to land claimed under ancient Spanish grant, official map of county, compiled after institution of suit, held properly admitted, against objection map could have no effect in fixing boundaries and that data on which it was made were not before court. Sullivan v. Solis \[Tex.\] 114 SWV 456. Where call in grant did not give length of the line, held proper to instruct that jury could consider plat annexed to grant in deedermining length of line. McNeely v. Laxton, 149 N. C. 327, 63 SEE 278.

Surveys: Government surveyor's field notes, giving trend of lines and distances run, held competent and material on issue of location of disputed quarter-section cor-ner. Kellogg v. Finn \[S. D.\] 119 NWV 545. Field notes do not locate lines on ground, but merely furnish data from which surveyors may locate them. International & G. N. R. Co. v. Morin \[Tex.\] 116 SWV 206.

SBV-658. Surveyor could testify to location of street lines though he did not produce
\_Monuments, courses, distances and quantity.\_See 11 C. L. 439--A monument is of no avail unless identified \[62\] and if destroyed its position must be accurately located.\[63\] If not definitely identified or located it must give way to more certain methods of locating lines.\[64\] Of two artificial monuments, the one most likely to be accurate will be adopted,\[65\] and where two natural boundaries are named in the same call, one of which cannot be found, the other controls.\[66\] Straight lines may be run from known corners in order to locate a lost one.\[67\] A starting point must be rejected if in conflict with all the other calls clearly established.\[68\] In the absence of conflict, one call is entitled to as much respect as another and uncertainty may often be avoided by reversing the calls.\[69\] An ambiguity in a call may be explained by

patent included land in controversy. Lough-\[to old fence line claimed by plaintiff as ridge v. Ball \[Ky.\] 118 SW 321.

**60. Presentation of issues instruction to**

gent, 138 Wis, 338, 117 NW 83.

**61. Findings of jury fixing boundary lines agreed as to one line held error, where**

\*\*held sulfentiently definite. McCaleb v. Camp-two lines were in dispute. Miles v. Eckert ITex. City. App.1 120 SW 1137. _Requested_

**62. Limits v. Urrutia, 9 Cal. App. 567, 99 P instructions held erroneous as ignoring a purehouse's right to recover, regardless of**

**63. Evidence held to show that northeast**

**prior boundary agreement if he had no**

**for needle to record in a certain survey and could knowledge thereof. Louisiana & T. Lumber Co. v. Dupuy \[Tex. Civ. App.\] 113 SW**

**from which to locate an angle to which**

**64. Interactions held to correctly present**

**such survey was tied. Seabrook v. Coos contentions of parties as to true location**

\*\*65. Lilis v. Drrutia, 9 Cal. App. 567, 99 P.

\*\*66. Lilis v. Drrutia, 9 Cal. App. 567, 99 P.

\*\*67. Wight be established by the best available evidence. Brew v. Nugent, 136 of treste of defendants' railroad was four inches under walls of plaintiff's building and true line between plaintiff's and defendants' lands was a party wall jury should have been instructed that plaintiff could recover if defendants' structure en-recached on plaintiff's premises. Hatcher v. Richmond & C. B. R. Co. \[Va.\] 63 SE 599.

**68. It was error to charge that defendant could**

**of tests or otherwise anywhere within lines**

**called for by**
**dead. It conclusively appearing that plaintiff's track had been first located, held error to submit both issue of**

**for needle to record in a certain way, supported contrary con-mentis on ground sufficient to locate survey. Collins v. Clough, 222 PA, 472, 11 A**

**69. Interaction held not to mislead jury into belief that they could not find accepted based on boundary agreement unless defendant purchased without knowledge that**

- 13 Cur. Law. BOUNDARIES SS 1.

the subject-matter and the surrounding facts and circumstances," but where calls are definite and clearly expressed in an instrument, they should not be extended to conform to an intention which might be discovered from other parts of the description or from extrinsic evidence."

The term "true line" used in a surveyor's field notes in reference to a division line means a straight line," and a conveyance by reference to the line of an adjacent tract refers usually to the true line of such tract." A call for a southwest course without more means south forty-five degrees west." A line apparently omitted from a description by mistake and necessary to close a survey may be supplied by the court." Where the same result follows, a survey will be closed by a single straight line rather than by several lines of different courses." A division line of a donation land claim established by special government survey is not necessarily the same as section or quarter section lines."

The actual line of a survey when it can be shown is the highest proof of a boundary line," the next highest being that of monuments and natural or permanent objects definitely located," and a call for courses and distances must yield to these " in case of conflict," provided such monuments or objects are sufficiently

- 14 Geod are found, that much of survey will be located and such location will throw light on location of other lines so as to close survey. Id. Course reversed in location. Ames v. Thren. 136 Ill. App. 568. Ing county school lands. Lewright v. Travis County \[Tex. Civ. App.\] 118 SW725. Reversal of calls and disregarding course as to last line held to establish true lines. Hensley v. Burt & Brably Lumber Co. \[Ky.\] 116 SWV 316. Calls may be reversed to ascertain a grantor's intention where it is apparent on face of feed that there is mistake as to directions in calls for course and distance. Moore v. Loggins \[Tex. Civ. App.\] 114 SWV 183. Where ded described land by line commencing on a street a certain distance from a city tract line and it appeared tract line crossed street obliquely, evidence held to show starting point was intended to be such distance at right angles from tract line and not such distance from point where tract line crossed street line. Raley v. Mignedie (Tex. Civ. App.) 116 SWV 174. To-operative Eldg. Bank v. Hawkins \[R. I.\] 73 A 617. Extrinsic evidence and general expressions in deed and mortgage held ineffective to override specific calls so as to extend boundaries to include all of a dwelling house. Id. 72. Lllis v. Urrutia, 9 Cal. App. 557, 99 P 992. Crook County Com'rs v. Sheridan County Com'rs \[Vyo.\] 100 P 659. Description bounding county by reference to line of another county held to refer to true line of latter county as defined by law. Id. 74. Holden v. Alexander \[S. C.\] 62 SE 1108, rehearing denied \[S. C.\] 64 SE 400. Direction, after giving three lines, to go west and south far enough to include 400 acres, it appearing south line was too short for such purpose. Torbins v. Thomas \[Tex. Civ. App.\] 118 SWV 581. 74. Where ascertained calls stop short of closing survey. Polevent v. Scarborough \[Tex. Civ. App.\] 117 SWV 443. 77. Bernheim v. Talbot \[Or.\] 100 P 1107. 78. Meeker v. Simmons \[Cal. App.\] 101 P 683. Stakes set by city surveyor are best evidence of location of lines of city lot. Ames v. Thren. 136 Ill. App. 568. Meeks and bounds expressed with certainty will include the land within them. Co-operative Eldg. Bank v. Hawkins \[R. I.\] 73 A 617. 79. Meeker v. Simmons \[Cal. App.\] 101 P 683; Collins v. Clough, 222 Pa. 472, 71 A 1077; Ames v. Thren, 136 Ill. App. 568. 80. Meeker v. Buck, 38 Pa. Super. Ct. 58; Page v. Whatley \[Ala.\] 50 B 116; Meeker v. Simmons \[Cal. App.\] 101 P 683; Andrews v. Wheeler \[Cal. App.\] 101 P 683; Menzinger v. Davis \[Iowa\] 120 NVV 65: Hensley v. Burt & Brably Lumber Co. \[Ky.\] 116 SWV 316; Highstower v. Borden \[Ky.\] 112 SWV 678; Sullivan v. Hill, 33 Ky. L. R. 962, 112 SWV 564; Finley v. Meadows \[Ky.\] 119 SWV 216; Stewart v. May \[Id.\] 73 A 460; Green v. Horn, 128 App. Div. 688, 112 NYS 993; McNeely v. Lxxton, 149 N. C. 327, 63 SE 278; Co-operative Eldg. Bank v. Hawkins \[R. I.\] 73 A 617; Hatcher v. Richmond & C. B. R. Co. (Va.) 63 SE 999; State v. King, 64 W. Va. 546, 63 SE 461; Brev v. Nugent, 136 WIs. 236, 117 NVV 818. This is as true of the grant by an individual as of official established.\[82\] Where the monuments and natural objects cannot be found, resort may be had to courses and distances.\[83\] Quantity yields to monuments, courses and distances,\[84\] and distances to courses,\[85\] but these different rules are not fixed and invariable in such sense as to control a clear intention \[86\] or a statutory provision.\[87\] The calls of a senior control those of a junior patent.\[88\] Field notes pre-vail over plats made therefrom.\[89\]

with reasonable certainty. Lance v. Rumbugh,150 N. C. 19, 63 SE 357. When there is a definite call in a dead or grant for an established corner or line of another tract, call will control course and distance un-less grant was made with intent to convey according to an actual survey made with a view of making dead. Mitchell v. Welborn,149 N. C. 347, 63 SE 113. As calls in surveys for trees and other objects indicating corners are conclusive with respect to such corners, so calls for adjoiners as like declarations of survey that such ad-joining tracts had been previously located are equally conclusive of facts declared. Collins v. Clough, 822 Pa. 472, 71 A 1077. Grant of land by general description, also "waterpower and dam on said property." held to pass dam and flowage though part of structure was on adjoining land owned by grantor at the time. Wellman v. Blackman \[Mich.\] 15 Det. Leg. N. 1126, 119 NW NW 1102. In case of discrepancy between call of ancient patent and marked line, latter controls. Thurman v. Leach \[Ky.\] 116 SW 300. Marks on ground constitute survey and courses and distances are only evidence thereof. Andrews v. Wheeler \[Cal. App.\] 103 P 144. Where line was described to be along center of a road "north 30 de-grerees 45 minutes west" and it should have been "north 33 degrees 45 minutes west," directions to follow road controlled. Meeker v. Simmons \[Cal. App.\] 101 P 683. Description held sufficient to convey to a blank road notwithstanding mistakes in courses and distances. Green v. Horn,128 App. Div. 686, 112 NYS 993. Calls for course and distance held inferior to call for menders of ereek. Moore v. Loggins (Tex. Civ. App.\] 114 SW 183. Presumption is that no conflict exists. Hatcher v. Richmond & C. B. R. Co. \[Va.\] 63 SE 399.

**82.** It is only in absence of original marks and monuments and total failure of evidence to supply them that recourse can be had to lines and calls of a block of surveys or the lines and calls of any junior member of the block, or any other. Collins v. Clough, 222 Pa. 472, 71 A 1077. Held competent for defendant to prove that grantor caused oak stakes to be set, indicating the corners and side lines of the lots sold to defendant and adjoining own-ers and the location thereof. Metcal v. Buck, 36 P.a. Superc. Ct. 58. Parol testimony is admissible to show locations of the marks and monuments on the ground which the grantor and grantor state fixed as the true line. Rozelle v. Lewis, 37 Pa. Superc. Ct. 563. Mere conflict in evidence as to identity of nonunements does not preclude application of rule, it being duty of court or jury to determine whether objects in question are movements called for. Kling, 64 VV. Va. 546, 63 SE 468. Where only some of A proper apportionment should be made in case of excess of distance or amount,90 but an owner of a fractional division of land is entitled to any excess in acreage.91 Where a plat shows the frontage of all the lots in a block except one, the frontage of this one will be what remains after giving to the other lots their designated frontage.92 Mere deficiency in acreage does not authorize "proportionate measurement" under the federal rules.93

\_Highways, streets or ways as boundaries.\_See 11 C. L. 433--A holder of land bounded on a highway presumptively owns to the center of the highway subject to the highway easement,94 but the grantor may restrict the conveyance so as to reserve title to the land in the highway or street,95 and such is usually the effect of bounding the property conveyed by the exterior lines of the street or way 96 as distinguished from the street or way itself,97 the question, however, being in its final analysis one of intent.98 Calls for streets as monuments presumptively refer to streets as actually laid out.99

**SS 2.**\_Riparian or littoral boundaries.\_See 11 C. L. 433--The general rule is that

course of lines though an excess of land

S. C. 307, 62 SE 320. Conveyance by state was given county, and a conflicting call

of plattated land owned by it with streets as

Vor distance was displaced, effect being

boundaries. Purchasers acquired title to given to the only calls clearly established.

Iee to center of streets same as if platting

Lewright v. Travis County \[Tex. Civ. App.\]

had been by an individual. Willock v.

118 SW7 725.

S8. Where calls of junior warrant are for

sumption that grantee takes to center of

the lines of the senior warrant, survey and

spect does not obtain with reference to

patent, the line of the latter controls. Up-

covergence by city of lots abutting on

depraft v. Snyder, 38 Pa. Super, Ct. 30.

streets in which it owns the fee (Webber

89. Ellis v. Urrutia, 9 Cal. App. 557, 99 P

v. Gilles, 112 NYTS 397), but it is otherwise

93.

Ware measurement over surface of

108 showed an excess in distance over that

95. Brown v. Oregon S. L. R. Co. \[Utah\]

specified on map and called for in decades

102 P 740.

conveying according to map, excess should

be apportioned between lots in proportion

521, 115 NYTS 23. Deed to let lying east of

to their respective lengths, there being no

marks showing division line between lots.

Andrews v. Wheeler \[Cal. App.\] 103 P 144.

91. Fuelling v. Fiese \[Ind. App.\] 87 NSE

01. Toudouze v. Keller \[Tex. Civ. App.\]

118 SW7 185.

93. There is no provision in federal stat-

utes relating to rules to be followed by

surveyars in relocating corners or in instructions of interior department approved

October 16, 1896, relating to lost or ob-

literated corners, for "proportionate meas-

described as running "westerly by said

adjointing parcels of land (Somers v. Mc-

Mordie \[Cal.\] 99 P 482), and there being no

question as to loss of corners, exact boun-

daries as shown by government plat con con-

trol regardless of further description by

quantity (Id.).

94. Woolf v. Woolf, 116 NYTS 104. At com-

mon law, grant of land bounded by a pub-

lie highway or street passes title to center

of street if grantor had title. Brown v.

95. Ocean City Hotel & Development Co.

Oregon S. L. R. Co. \[Utah\] 102 P 740. Comp.\]

v. Sooy \[N. J. Err. & App.\] 73 A 286. If, at

Laws 1907, $ 1120, providing that title

passes to center of highway, is but declar-

tory of common law, and does not apply

where rectilals in conveyance of a strip of

land are such as to create a private as dis-

tingushed from a public easement. Id.

Where a railroad company had only an

easurement in land covered by its right of

way and in partition land was partly

homuded by railway, deed passed fee to cen-

for right of way. Foster v. Foster, 81

18 Curr. L - 83

**SS 2.**\_The general rule is that a holder of lands bordering on navigable waters owns to the low-water mark,2 and, if the water is not navigable, he has title to the center of the lake or to the thread of the stream.3 Thus where a stream itself is referred to as the boundary or the line is described as running along the stream, the stream is the monument and its thread the boundary line,4 but where land is expressly bounded on the bank or shore of the stream or lake, the bank or shore is the monument, and not the stream or lake, and the low-water line will usually be the boundary.5 At common law a grant of land bordering on a coast where the tide ebbs and flows conveys title only to the line of ordinary high tide in the absence of anything to indicate an intention to extend the grant beyond that line.6 Meander lines 7 are not usually es-

123; Dec. Dig. SS 12-18; 5 Cyc. 801-904; 4 thinking it to be a part of the lake, and, as a result, the meander line was in some places over a mile from the true bank of App. 438, 117 SW 604. Conveyance of up-

land with right of extension to low-water

lake, and not the meander line, was the mark includes land between high and low-water mark. Spreckels v. Brown, 212 U. S. 208, 63 Law. Ed. --.

3. Center of stream. Hartz v. Detroit P. & N. R. Co., 153 Mich. 337, 15 Det. Leg. N. 495, 116 NW 1084. To center of non-navigable lake. Little v. Williams (Lark.) 113 SW 340. State and its grantees held to have taken to center of non-navigable lake by virtue of riparian rights and patent from general government, though federal survey had erroneously included swamp land within meander line of lake as lake bed. Id. Title of owner on non-navigable stream goes to thread of stream or across stream if his estate extends beyond stream. Home for Aged Women v. Com., 202 Mass, 422, 89 NE 124. Common-law rule giving title to middle of non-navigable stream is rule adopted by Cyc, Code, $ 820. Drake v. Russian River Land Co. \[Cal. App.\] 103 P 167. Deeds held to give title to middle of stream, and "border" held synonymous with "boundary." Id. Grantee held to take to center of stream notwithstanding survey by prior owner by driving stakes along top of bank of stream. Id.

1. Drake v. Russian River Land Co. \[Cal. App.\] 103 P 167.

1. Non-navigable stream. Drake v. Russian River Land Co. \[Cal. App.\] 103 P 167.

A grant of land to a point on a lake and thence along its shore line does not carry title to the middle of the lake or stream. Clity of Geneva v. Henson, 195 N. Y. 447.

88 NE 1104. Grant in connection therewith of docke, buildings and privileges of grantor or supertraining to premises. did not include title to bed of lake. Id. Dead calling for corner in edge of small lake, these along edge of same, did not include any part of lake. Fuller v. Cole, 38 Pa. Super. Ct. 658.

6. De Meritt v. Robinson Land tablished as boundaries by the government," but in the absence of fraud or mistake," when payment for the acreage based on the meander line has been made, the purchaser's title exists to the water's edge though small unmeasured tracts lie outside the meander line.10 Where land is bounded on or by a nontidal stream, the presumption is that the title extends to the center of the stream,11 and this presumption obtains even against the state, where a consideration supports the conveyance and no intention to except the bed is shown; 12 but, as a general rule, governmental grants of public lands having meandered shore lines give title only to the line of ordinary high water.18

Aside from the question of boundaries, the rights of riparian and littoral owners are treated in another topic.14

SS 3. _Establishment by agreement of adjoiners.18 See 11 C. L. 484_.--Agreements settling boundary disputes are usually binding on the parties16 agreeing thereto,17

tional sections in question would not, if any event, under treaty of Dec. 26, 1854, extended beyond the meander line, encoun- let the banks of the body of water meam- letocate reservation, subsequent conveyance dered. In others there was no body of want therein in severality in accordance water proper to be me meandered in the Vienna- with survey under Act May 29, 1872, c. 223. 171 Stat. 186, in which lands allotted ex- secured. In view of the extent of the tract of land lying between the meander line of Indians, as a community, to tide lands. and the lake, the decision in the principal case represents an extreme application of the general rule, but resulted in giving to the owners of the land bordering on the meander line a frontage upon the lake, in accordance with the survey.--From 7 Mich. 10 L. R. A. (N. S) 610.

Law Rev. 429.

S simply as basis from which to meas- are approximate acreage for which gov- erment will demand payment. Barringer v. Davis \[Iowa\] 120 NVP 65.

v. Davis \[Iowa\] 120 NVP 65.

9. Where no lake or stream calling for expedient of meander line exists, or where such line is placed so far from shore as to leave excess of unsurveyed land so great as clearly to indicate fraud or mistake, meander line will be treated as boundary. Barringer v. Davis \[Iowa\] 120 NVP 65.

Barringer v. Davis \[Iowa\] 120 NVP 65.

When lots are conveyed with reference to original survey showing north and south lines of section as ending at meander posts on shore of a lake, and showing meander line between them as coinciding with shore marked as being east boundary of lots, shore, and not meander line as actually run on land, a boundary. Barringer v. Davis \[Iowa\] 120 NVP 65.

11, 12. Fulton L., H. & P. Co. v. state, 62 Mixe. 189, 11e NYS 1000. Grant by state of land on nontidal stream carries title to center of stream in absence of express or implied reservation. Id. Existence of implied reservation is determinable by lan- guage of grant read in light of presump- footnote 13

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

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

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

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

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

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

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

and upon persons charged with notice,\[18\] and in favor of purchasers relying thereon." A settlement prior to conveyance, however, is merged in a deed subsequently executed, and the deed controls in case of a variance.\[10\] Such agreements, may be verbal,\[21\] but it is held that in such case they must be acted upon to avoid the state of frauds.\[22\]

## 4 Establishment by acquiescence, estoppel or adverse possession

See \[11\]

C. L. \[43\]--Except as regards the establishment of boundaries adverse possession is treated in another topic.\[24\]

Acquiescence in a line is evidence that it is the true line,\[25\] and such acquiescence may result in the establishment of the line 25 as by agreement \[97\] or by way of estoppel.\[28\] A boundary may also be settled by estoppel growing out of other acts of the parties,\[29\] or by practical location,\[30\] or by adverse possession,\[31\] but in boundary. Wells v. Bentley \[Ark.\] 113 SWV

to division line and taking possession accordingly. Hocker v. Keeton \[Ky.\] 115 SWV

agreed to and established certain line as a

74. Evidence insufficient to show improvements. Fuelling v. Fuesse \[Ind. App.\] 87

property held for jury. Green v. Green, 36

Nore: As to whether agreements settling

boundary disputes are within statute of

by a marked line or by adverse possession the last case the possessor's claim must be absolute and in disregard of where the boundary to purchaser of his land in hear- _School Dist. \[Cal.\]_ 102 P 925. Rule that, ing of third person held not to estoph him \_where a line is actually run and marked as against such third person who purchased part of tract several years later, _claiming under a patent or deed may hold representations not having been made to the third person and latter not having re- _standing u mistaken description of land in lled thereon in purchasing_. Gaffney v._ _patent or deed, presupposes patent or deed_ _to have been made in pursuance of survey_ _iff in action of treapsaps, quare clausum fregit, held not estopped to show true line_ _in making deed or patent, and is not_ \_applicable where it did not appear that pat- _every a certain point as being corner of tract involved. Henning v. Keiper, 37 Pa._ \_testified was done by him. Caldwell Land Super. Ct. 488. To _setup landowner by statements that he would set back his 356._ _As against state: Doctime of practical clearly appear statement was relied on by purchaser. Warden v. Addington \[Ky.\]_ 115 _cation of line bounding state property as SW 241. Evidence insufficient. Id. Signage agreement to abide by survey to the made by township trustees hold not to operate as astoppel in favor of adjoining owner who had built fence before survey was made._ _Marshall v._ _Benetu \[Iowa\] 118 NWP 918._ \_One claiming in disregard of previous agreement to be bound by a survey held not stepped as against subsequent grantee who know of claim and who did not rely on claimant's failure to give notice of re- _in the dead thetworky is a prac- _Development_ Co. \[Tex. Civ. App.\]_ 114 _SW_ \_187. Where parties without litigation set- _C. 19, 63 SE 357. Where building intended lle that a wall is a party wall, it is presumed wall is true division line between the lands (Capital City Inv. Co. v. Burnham \[Iowa\]_ 121 NWP 708), and when they settle the matter by litigation, the same, if not a conclusive, presumption arises (Id.). Evidence insufficient to overcome presumption _is_ actually made for the purpose of convey- \_p_iduation of survey, Pierce v. Texas Rice _in the dead thetworky is a prac- _Development_ Co. \[Tex. Civ. App.\]_ 114 _SW_ \_187. Where parties without litigation set- _C. 19, 63 SE 357. Where building intended lle that a wall is a party wall, it is presumed wall is true division line between the lands (Capital City Inv. Co. v. Burnham \[Iowa\]_ 121 NWP 708), and when they settle the matter by litigation, the same, if not a conclusive, presumption arises (Id.

true line may be.12Acts of prior owners are not available to estop a claimant in the absence of privity of estate.33The burden of proof is upon the party asserting the establishment of a boundary by acquiescence 34 or adverse possession,35 the question as to whether such burden has been sustained in a particular case, being referable, of course, to the evidence adduced therein.39A commandant of a military reservation may fix the line of his occupancy anywhere within the legal limits of the reservation as against private persons having no rights dependent on the accuracy of the boundary.37

SS 5. \_Establishment by arbitration, action or statutory mode.38See 11 C. L. 438_Boundaries may be adjudicated in ordinary actions involving land titles 39 or in special statutory proceedings.40In the latter case the statute must be looked to for the rights of the parties 41 and the procedure, both original 42 and appellate.43

claimed by defendant up to such old fence. Eebel V. Hulee, 154 Mich. 230, 15 Det. Leg. N. 734, 117 NUV 625. Subsequent surveys or declarations held not to divest him of such title. Id. Under City. Code 185, % 2348, requiring processors in proceedings to establish boundaries to respect a party's addverse possession for seven years, held error 34; 119 Id. 66; 3 Ann. Cas. 1064; 4 Id. 343; to charge they could not interfere with line up to which defendant had had adverse possession for seven years, "if that 211, 252-282; Dec. Dig. % 28-46, 50-56; 5 64 SE 64.

32. Possession to fence without intention to claim beyond true boundary, but in belief such fence marked such boundary, help insufficient. Webster V. Shrine Temple Co. \[Iowa\] 117 NUV 665. Possession to Gaffney V. Clark \[Tex. Civ. App.\] 118 SSV 420.

01. Where defendant admitted plaintiff and without intention to claim beyond true by hand and sought to have boundary established, v. McAnnelly, 215 Mo. 371, 114 SW 990. Possession held to be a particular line and not to true boundary wherever it might be. Wells v. Bentley \[Ark.\] 113 SW 639.

01. Where after boundary agreement land of one of the parties was forfeited to state, but owner reacquired title from state's grantee, there was no privity of estate between his holdings so as to estop him by the agreement. Runkie v. Smith \[Tex. Civ. App.\] 114 SW 865.

01. Lizer v. Clubine \[Iowa\] 118 NUV 409.

01. Webster v. Shrine Temple Co. \[Iowa\] 117 NUV 665. Where plaintiff establish government survey line, burden of proof 11 showing that line 20 rods east had been acquiesced in so long as to establish adverse possession rests on defendants. Instruction's disapproved. Keller v. Harrison, 139 Iowa, 383, 116 NUV 327.

01. Evidence insufficient to establish old fence as boundary by acquiescence or adverse possession so that purchase of ten-foot strip by defendant west of his lot line was placed ten feet west of such fence. Lizer v. Clubine \[Iowa\] 118 NUV 409. Evidence held to show a fence was agreed upon as a mere tentative line and that parties had not acquiesced in same as true boundary for ten years. Webster v. Shrine Temple Co. \[Iowa\] 117 NUV 665. Evidence insufficient to show acquiescence by plaintiff in boundary asserted by defendant. Marshall v. Benetti \[Iowa\] 118 NUV 918.

01. Rudolph Herman Co. v. San Francisco, 154 Cal. 688, 99 P 169.

01. Search Note: See notes in 22 A. S. R. 34; 119 Id. 66; 3 Ann. Cas. 1064; 4 Id. 343; 111 Id. 1127.

See also, Boundaries, Cent. Dig. % 138-11, 2152-282; Dec. Dig. % 28-46, 50-56; 5 65 (Cyc. 941-967, 369-974; 4 A. & E. Enc. L. 64 825. 64.

32. Possession to fence without intention to claim beyond true boundary, but in belief such fence marked such boundary, active relief by having boundary established, elc. \[Iowa\] 117 NUV 665. Possession to Gaffney v. Clark \[Tex. Civ. App.\] 118 SSV 420.

01. Where defendant admitted plaintiff and without intention to claim beyond true by hand and sought to have boundary established, v. McAnnelly, 215 Mo. 371, 114 SW 990. Possession held to be a particular line and not to true boundary wherever it might be. Wells v. Bentley \[Ark.\] 113 SW 639.

01. Where after boundary agreement land of one of the parties was forfeited to state, but owner reacquired title from state's grantee, there was no privity of estate between his holdings so as to estop him by the agreement. Runkie v. Smith \[Tex. Civ. App.\] 118 SW 865.

01. Lizer v. Clubine \[Iowa\] 118 NUV 409.

01. Webster v. Shrine Temple Co. \[Iowa * \[13\] Cur. Law. BREACH OF MARIAGE PROMISE. 519

A statute authorizing the establishing of boundaries by survey on notice does not, however, preclude the establishment of a boundary by other evidence in the absence of such survey.44 Equity will not determine a boundary dispute if the defendant is in possession and ejectment may be resorted to,44 but the jurisdiction of equity is not ousted by the mere existence of such a dispute, where there is some independent ground of equity jurisdiction.44

Footnote 44: Aways begin with the latest article on the subject. Use the latest topical index.

**BOUNITIES.**\*\*\*\*

**BOYeeett; Brands, see latest topical index.**

**BREACH OF MARIAGE PROMISE.**\*\*\*\*

**The scope of this topic is noted below.45**

\_Right of action.\_56 in C. L. 457.--A promise contingent on one of the parties securing a divorce is void,50 but a statute invalidating marriage contracts within a specified time after a divorce applies only to contracts to be performed within such time.51 Where plaintiff's capacity to marry depends on a divorce, defendant may show want of jurisdiction to grant it.52 A person is not liable for breach of an agreement to marry one afflicted with syphilis, unless it was made with knowledge of such condition.53 The right of action does not accrue until the promisor is in default,54 but where no time is fixed failure to marry within a reasonable time is a default.55 That the promisor was murdered by plaintiff's father because of the breach of promise is no defense to a suit against his heirs.56

running land lines, no protest being filed - See, also, Bounties, Cent. Dig.; Dec. Dig.; or trial had thereon, such plat is only 5 Cyc. 976-994; 4 A. & E. Enno. L (2ed.) 869. prima facte evidence of correctness of the 48, Senator Nect: See notes in 3 C. L. 525. lines appearing thereon. McGraw v. 526; 5 I. 436; 11 I. 437, 438; 15 L. P. A. Crosby, 129 Ga. 780, 59 SE 89S. Where ejcment for establishment of 582; 14 I. 748; 40 A. S. R. 172; 44 Id. 381; boundary did not require finding that promessions had run a line where no bound-ary line had been previously located and - Set. Dig.; Dec. Dig.; 5 Cyc. 991-102; 4 A. & E. Enno. L (2ed.) 882; 3 A. & E. Enno. P. motion to dismiss on ground that process- signers had run and marked a new line. Id. 43. Under Act Dec. 17, 1901 (Acts 1901, p. 39), amending $ 249, Civ. Code of 1895, any owner of adjoining land dissatisfled with lines as run by processioners and surveyor must file his protest thereon with the "ordinary" within 30 days. Moore v. Hood, 131 Ga. 479, 62 SE 586. Filling with clerk of superior court held insuffient. Id. Imaterial ordinary told protestant to file protest with clerk if ordinary should be busy. Id. 44. Survey by county surveyor, not under c. 25, Gen. St. 1901, held admissible, no other survey having been made. Bain v. Peyton \[Kan.\] 102 P 251. 45. Cullen v. Kisaszkiewicz, 154 Mich. 627, 15 Det. Leg. N. 844, 118 NW 496. 46. Vendor of part of lot could use to restrain purchaser's removal of fence erected on true division line by vendor. Cullen v. Kisaszkiewicz, 154 Mich. 627, 15 Det. Leg. N. 844, 118 NW 496. 47. No cases have been found for this subject since the last article. See 11 C. L. 487. This topic excludes military bounties (see Military and Naval Law \*) and bounty lands (see Public Lands \*). Search Note: See notes in 3 C. L. 525; 42 L. R. A. 63. 54. No formal putting in default is necessary where the obligor denies the existence of the marriage contract and declares his intentions not to perform it. Johnson v. Levy, 112 La. 118, 47 S 422. 55. Pleadings held to present question of the defendants' failure to perform within a reasonable time. Hill v. Houser \[Tex. Civ. App.\] 115 SW 112. 56. Johnson v. Levy, 122 La. 118, 47 S 422.

Form of action and pleadingSee 11 C. L. 448--The action is ex contractu, though it partakes of some of the characteristics of an action ex delicto.57 The complaint must show the agreement and breach thereof.58

Evidence and instructionsSee 11 C. L. 489--A promise of marriage may be established either by express proof of the agreement59 or by proof of circumstances from which it may be reasonably inferred.60 Letters written by plaintiff to defendant are admissible if their contents are relevant.61 Testimony of plaintiff regarding the forcible violation of her person by defendant is admissible as part of the history of the case,62 but proof of such is not admissible as corroborative evidence of a promise of marriage,63 although proof of seduction is admissible as corroborative of the woman's claim that a promise of marriage has been made.64 Plaintiff's testimony as to seduction need not be corroborated.65 A contract between the parties, though void because of public policy, is admissible as bearing on the credibility of their testimony,66 and recepts for money paid to plaintiff by defendant are admissible if tending to show an admission on the defendant's part that he had illicit relations with plaintiff.67

Footnote 74: Johnson v. Levy, 122 La. 118, 47 S 422.

- \[13\] Cur. Law. BRIBERY.

The jury in awarding damages may consider the pecuniary advantage to the plaintiff of the marriage, the money value or worldly advantages that the marriage would have given her, the advantage of such a domestic establishment as would be suitable to her as the wife of a person of the defendant's estate and station in life,\[7\] and may consider the wealth of the defendant.\[7\] Ill temper and hatred may be shown in mitigation of damages.\[7\] Compensatory damages may be recovered against the heirs of a decedent for his breach of promise of marriage,\[7\] but exemplary damages are not allowable in such a case.\[8\] The damages must be proportionate to the injury sustained.\[9\]

**BRIDGES.**

_The scope of this topic is noted below.${}^{\\text{\\text{\\textcite}}}$_

**SS 1. Regulation and Control, 532.**

**SS 2. Establishment and Location by Pub-**

**SS 3. Contracts and Construction, 523.**

**SS 4. Public Lability for Costs and Main-**

**SS 5. Establishment, Construction and Main-**

**SS 6. Contracts and Construction, 523.**

**SS 6. Injuries from Defective Bridges, 525.**

**SS 7. Injuries to Bridges, 527.**

\*\*SS 1. Regulation and control.${}^{\\text{\\textcite}}$See 11 C. L. 441.\*\*The authorities having control of a bridge may close it while repairs are being made,${}^{\\text{\\textcite}}$ but such repairs must be made with reasonable diligence, unless legal grounds are shown for delay; ${}^{\\text{\\textcite}}$ and where county commissioners are given control of the public bridges, they are not relieved of liability for the condition of such bridges because the work is required to be done under the supervision of an engineer.${}^{\\text{\\textcite}}$ A city, in operating a draw-bridge forming a part of its streets, acts in its private or corporate, as distinguished from its public or governmental capacity.${}^{\\text{\\textcite}}$

\*\*SS 2. Establishment and Location by public agencies.${}^{\\text{\\textcite}}$See 11 C. L. 441.\*\*The power to establish bridges is usually subject to some limitations as to public necessity or convenience.${}^{\\text{\\textcite}}$ Where the power to determine the advisability of and necessity for a bridge is tested in a board of freeholders, the discretion cannot be disturbed unless it can be shown to have been illegally or fraudulently exercised.${}^{\\text{\\textcite}}$ In New York a town may construct a bridge across the Erie Canal where there is not a state bridge,${}^{\\text{\\textcite}}$ but, where it is not known at what particular point the canal will pass, no order for the construction of a bridge will be made.${}^{\\text{\\textcite}}$ In Kansas a township board has no authority to provide for the construction of a bridge either in whole or in part.${}^{\\text{\\textcite}}$

**SS. This topic is devoted specifically to**

\*\*SS 2-24, 36, 56, 60: Dec. Dig. **SS 2-11, 18, 19,**

**tenance, whether by public authorities or**

**SS 3. Private persons, of public bridges, and**

**SS 4. Public persons, of public bridges, and**

**SS 5. Establishment, Construction and Main-**

**SS 6. Contact, 523.**

**SS 7. Injuries, 523.**

**SS 8. Public persons, of public bridges, and**

**SS 9. Contact, 523.**

\*\*SS 1. Regulation and control.${}^{\\text{\\textcite}}$See 11 C. L. 441.\*\*The authorities having control of a bridge may close it while repairs are being made,${}^{\\text{\\textcite}}$ but such repairs must be made with reasonable diligence, unless legal grounds are shown for delay; ${}^{\\text{\\textcite}}$ and where county commissioners are given control of the public bridges, they are not relieved of liability for the condition of such bridges because the work is required to be done under the supervision of an engineer.${}^{\\text{\\textcite}}$ A city, in operating a draw-bridge forming a part of its streets, acts in its private or corporate, as distinguished from its public or governmental capacity.${}^{\\text{\\textcite}}$

\*\*SS 2. Establishment and Location by public agencies.${}^{\\text{\\textcite}}$See 11 C. L. 441.\*\*The power to establish bridges is usually subject to some limitations as to public necessity or convenience.${}^{\\text{\\textcite}}$ Where the power to determine the advisability of and necessity for a bridge is tested in a board of freeholders, the discretion cannot be disturbed unless it can be shown to have been illegally or fraudulently exercised.${}^{\\text{\\textcite}}$ In New York a town may construct a bridge across the Erie Canal where there is not a state bridge,${}^{\\text{\\textcite}}$ but, where it is not known at what particular point the canal will pass, no order for the construction of a bridge will be made.${}^{\\text{\\textcite}}$ In Kansas a township board has no authority to provide for the construction of a bridge either in whole or in part.${}^{\\text{\\textcite}}$

**SS 9. This topic is devoted specifically to**

**SS 10. Search Note: See Bridges, Cont. Dig. the establishment, construction, and main-**

\*\*SS 2-24, 36, 56, 60: Dec. Dig. **SS 2-11, 18,**

**tenance, whether by public authorities or**

\*\*SS 11.\*\*The scope of this topic is noted below.${}^{\\text{\\textcite}}$

**SS 12. Regulation and Control, 532.**

**SS 2. Establishment and Location by Pub-**

\*\*SS 22.

13 Cur. Law. BRIDGES SS 4. 523 SS 3. Contracts and construction. 2- See 11 C. L. 442--The manner of letting contracts for the construction of public bridges is usually regulated by statute,3 and, where it is provided that the word bridges includes the approaches thereto,4 a contract for the construction of a bridge without the approaches is invalid if the aggregate cost will exceed the constitutional limitation.5 A contract for the construction of a bridge, which provides that such bridge shall be constructed in accordance with plans on file and forming part of the contract, refers to plans on file at the time of the execution of the contract.9 A county which has entered into a contract which it had power to make and has received the benefits thereof is liable though there has been a technical irregularity in the exercise of that power,7 and, if certain acts have not been performed because the county has failed to do its duty, it will not be permitted to set such up as a defense.8 An engineer who is merely authorized to supervise the repairing of a public bridge has no power to bind the county by requiring the contract to perform extra work not called for by the contract.9

Footnote 13: Cur. Law. BRIDGES SS 4. 523 SS 3. Contracts and construction. 2- See 11 C. L. 442--The manner of letting contracts for the construction of public bridges is usually regulated by statute,3 and, where it is provided that the word bridges includes the approaches thereto,4 a contract for the construction of a bridge without the approaches is invalid if the aggregate cost will exceed the constitutional limitation.5 A contract for the construction of a bridge, which provides that such bridge shall be constructed in accordance with plans on file and forming part of the contract, refers to plans on file at the time of the execution of the contract.9 A county which has entered into a contract which it had power to make and has received the benefits thereof is liable though there has been a technical irregularity in the exercise of that power,7 and, if certain acts have not been performed because the county has failed to do its duty, it will not be permitted to set such up as a defense.8 An engineer who is merely authorized to supervise the repairing of a public bridge has no power to bind the county by requiring the contract to perform extra work not called for by the contract.9

Footnote 13: Cur. Law. BRIDGES SS 4. 523 SS 3. Contracts and construction. 2- See 11 C. L. 442--When and how county aid may be given for the construction and maintenance of bridges is frequently and more or less specifically regulated by statute.11 Some statutes provide that the commissioners of highways may, upon the existence of a contingency, make an additional tax levy for the purpose of rebuilding bridges,12 and, - not authorize township board to subscribe - had expired at time bridge was completed $1,200 toward the construction of a bridge - and that county failed to appoint others to set in their stead. Walker v. Vermillion County v. Alma Nat. Bank (Kan.) $2 P 234. - Country, 148 III., App. 285. - See Bridges, Cont. Dig. $ 2111, giving county commissioners power to control and manage public bridges, engineer who was given no authority to order extra work had no power to contract for such. Lund v. V.

524 BRIDGES SS 5.13 Cur. Law. where two counties are jointly liable for the repair of a bridge, it is sometimes provided that if either of such counties refuse to enter into a contract to have the bridge repaired the other may enter into such contract and recover not exceeding one-half of the full amount expended, by suit from the county in default,13 but one county cannot, under the guise of making repairs, build a new bridge and hold the other county liable for one-half the cost of building such bridge.14 In the absence of statute to the contrary, the duty to repair a bridge devolves upon the body upon which is imposed the duty to repair the highway of which the bridge forms a part.15 A construction, whether of plank, stone, dirt, or other material, necessary to enable persons using the bridge to pass from it to the roadway at either end, may properly be considered an approach, which the county should maintain in a safe condition,16 but where the approach has been vacated, the county is not obliged to maintain the same.17

SS 5. _Establishment, construction and maintenance by private enterprise.19--See_ 11 C. L, 444--An owner of lots abutting on opposite sides of a street may, under license or permit from the city council revocable at its pleasure, construct an over head bridge for the purpose of transporting freight over the street.19 Where a county has condemned and taken over a bridge belonging to a bridge company, it is not entitled to unattached lumber owned by the bridge company.20 Statutes have been enacted in many states requiring railway companies to provide and maintain suitable bridges across any water course which its railway passes over.21 An 13. Words "recover by suit" as used in the roads, it is their duty to maintain in a safe proviso of Cobey's Ann. St. 1907, SS 6147, condition an approach to a bridge as well include a suit instituted by an appeal from as other parts of the public road. Code disallowance of claim by county board. Pub. Gen. Laws 1904, art. 25, SS 1, 2. Balti-Cass County v. Sarpy County \[Nb.\] 119 more & O. R. Co. v. Howard County Com'rs NNV #SS. Where proper steps have been taken to render adjoining county liable and 17. Where county, under mistake of facts, where an issue is raised as to necessity of repeats or as to amount paid being more was no highway but street of city exchanged actual and reasonable cost thereof, tended to such bridge and was afterward then amount defaulting county ought to pay is question for jury, but, if no such not obliged to maintain bridge after aban-house is tendered, county is liable for one-half cost of repair. Buffalo County v. Kearney County \[Nb.\] 120 NW NW 171. No-tree served upon county sought to be charged should fairly state intention of the other county and scope of the project contemplated. Held that notice did not include "Ice breaks." Colfax County v. Butler County \[Nb.\] 120 NW 444.

## 13 Cur. Law. BRIDGES SS 6.

indietment in a prosecution of a railroad company for maintaining a public nuisance, committed by failing to keep in repair a public bridge extending over its tracks, must sufficiently allege the duty of the company to maintain or repair such bridge.\[22\] Companies chartered to build and maintain bridges are not ordinarily regarded as public corporations.\[23\]

SS 6. \_Injuries from defective bridges.\[24\] See 11 C. L. 445--It is the duty of the proper authorities to keep public bridges in a reasonably safe condition for travel,\[25\] and this duty is not limited to acts of commission and omission within the limits of the bridge,\[26\] but extends to those outside the bridge that render it unsafe for travelers.\[27\] Actual notice\[28\] to a municipality of the dangerous condition of a bridge, and failure to repair it within a reasonable time\[29\] renders the municipality liable in damages for any injuries that may occur, but there is no liability except for negligence,\[30\] and a municipality is not liable for injuries caused by the defective condition of a bridge which has not been adopted by it as a part of the public highway,\[31\] nor is it under obligation to protect a person from dangers not to be anticipated and which could not have resulted from the ordinary use of a bridge,\[32\] nor is a county liable for the negligent performance of the building of a bridge upon a public highway unless expressly made so by statute.\[33\] One who has put the

- \[topsep=0pt,itemsep=0pt\]
  approach to a bridge in an unsafe condition is liable for injuries resulting from such condition.\[34\] A supervisor whose duty is to inspect bridges and prepare plans and specifications for the repair of same is not liable for injuries caused by a defective bridge in his district.\[35\] A negligent omission to make repairs on a public bridge, which has been closed, renders the authorities in control liable for any special damages occurring to an abutting owner on the highway,\[36\] but damages cannot be recovered for loss of crops as a result of a bridge being built so low that the water overflows the adjacent land.\[37\] In order to recover for injuries it must be shown that the bridge is part of the public highway.\[38\]

_Proximate cause.\[See * C. L. 412--The general rule applies that in order to justify a recovery the negligence complained of must have been the proximate cause of the injury.\[39\]_

_Contributory negligence.\[See * C. L. 445--Contributory negligence bars recovery.\[40\]_

It is the duty of one approaching a drawbridge to stop, look, and listen.\[41\] The fact that one has often driven over a bridge will not justify inference that he knew it was dangerous or did not use due care in crossing it.\[42\]\_

\_Remedies.\[See * C. L. 446--The declaration should describe in what respect the bridge was out of repair or unsafe with such a reasonable degree of certainty as will give fair notice to the defendant of the character of the claim.\[43\] Evidence of precaution taken by city in the day time to prevent

\[\]

Somery County \[Iowa\] 118 NWP 912. Eviciprach to bridge and thereby made it unsafe and county was compelled to pay damages for death of person, county was emtilted to compel indemindry from railroad company. Baltimore & O. R. Co, v. Howard County Com'rs \[Md.\] 73 A 656. Judgment against county was not conclusive on rail-road company where such company was not party to action, but it was admissible as part of the case. Id.

S3. Not liable under Code 1906, $ 4468, as his duties are not those of an overseer. Lee v. Styles \[Miss.\] 49 S 259.

S3. Where state closed bridge which it had built over. canal and which was out of repair, and excluded travel for about two years without making the repairs, held that facts made a primae face for special damage to hotel owner who owned hotel adjacent to bridge. Kline v. State, 61 Misc. 114 NYS 318.

S3. Where county constructed bridge which was in perfect condition for all purposes of a highway, but by being built too low it caused water to overflow adjacent land during heavy ralns, it was held that Glen. St. 1901, $ 575, created no liability for injuries, caused by overflow, to crops. Shawnee County Com'rs v. Jacobs \[Kan.\]

S3. Evidence held sufficient to prove bridge part of highway, Anne Arundel County Com'rs v. Carr \[Md.\] 73 A 668.

S3. Where team of horses broke buggy tongue as the result of right on part of horses after stumbling into a hole in approach to bridge and plaintiff was thereby injured, the defect of the approach was the proximate cause of the injury, though accident might not have happened if horses had not been bothered by.flies or it buggy tongue had not broken. Hubbard v. Mont- any one from entering an open drawbridge is competent to show degree of care which might be expected of such city in the night. time.\[44\] An immaterial variance is not fatal.\[45\] Whether a bridge was in defective condition is usually a question for the jury.\[46\] Instructions must submit question of defendant's negligence.\[47\]

SS 7. \_Injuries to bridges.\[48\]\_See 11 C. L. 446

## Brokers

The scope of this topic is noted below.\[49\]

\[\] 1. Employment and Relation in General, \[\] \[
_License_. See 11 C. L. 447.--The failure of a broker to procure a license required by statute will not have the effect of vitiating his employment contracts, unless the statute expressly provides that such contracts shall be void.\[83\]

_Creation of relation_. See 11 C. L. 447.--The relation of principal and broker is created by contract, the sufficiency of which \[54\] and its construction depend \[58\] upon the rules applicable to other contracts.\[56\]

_Necessity of contract being in writing_ See 7 C. L. 447 is treated in another topic.\[57\]

_Termination of the relation_. See 11 C. L. 447.--The employment may be terminated by agreement,\[58\] in which case the termination is absolute \[59\] and notice thereof is not required.\[60\] It may also be terminated by abandonment,\[61\] by dissolution of a partnership of brokers,\[62\] or, without notice, by the broker himself.\[63\] An agency for a fixed period cannot, without cause, be terminated before the expiration thereof.\[64\] A principal has the right to determine an employment, indefinite in time, at any time before a sale has been consumated \[65\] or a purchase made,\[66\] but it is essential that he act in good faith in respect thereto.\[67\] Such revocation does

53. Held not to make contract void, since |tains data from which land may be identi-otherwise one party to civil action could |fed, and where fact that error is mere penalize, for his own benefit, the other |clerical one is patent from face of instru-party for an act which occasioned him no |Towers v. Bohuslav \[Neb.\] 120 NWW |Manker v. Tough |Kam.\] 98 P 792. |Manker v.

13 Cur. Law. BROKERS SS 1.

not usually become effective until notice is given to the broker.\[88\] A sale of the property by the owner has the effect of terminating an agency, under which the owner has the right to make the sale,\[80\] even without notice to the broker,\[70\] but such sale, where the owner has no right to revoke the agency, has been held not to have such an effect.\[11\] The principal may terminate a contract where its revocation has been left optional and the condition as to an extension of time has not been met.\[71\]

\_Scope of broker's authority.\[See 11 C. L. 448--The authority usually incident to a broker's employment is simply to find a purchaser, and not to execute a contract of sale,\[73\] unless authority to so contract be expressly given.\[74\] The employment contract will be construed according to the usual rules.\[76\] A broker in negotiating and making a deal has no right to vary from the specified terms,\[78\] and any contract entered into by him on unauthorized terms is not binding on the principal\[77\] unless intentionally and clearly ratified.\[78\] A power of sale conferred on the broker of commission. See post, SS 4, Customer

N. C. 64, 63 SE 18%. Authority to "nego-must be ready, etc. Held to have been in good faith where withdrawn for reason that broker misrepresented property to be received in exchange. Arthur v. Porter

to "execute good convayances to such pur-\[Tex. Civ. App.\] 118 SW 611.

68. Sticewl V. Lally \[Ark.\] 115 SW 1134.

01. Blumenthal & Co. v. Bridges \[Ark.\] 120 SW 941; Johnson v. Buchanan \[Tex. Civ. App.\] 116 SW 875.

01. Siegel v. Rosensweig, 129 App. Div. 54%, 114 N7B 179.

01. As in case of exclusive agency, contract having a definite time limit. Blumenthal & Co. v. Bridges \[Ark.\] 120 SW 941.

compact Johnson v. Buchanan \[Tex. Civ. App.\] 116 SW 875.

72. Agreement to secure loan of $7,000 by mortgage on land held not to have been met by agreement of one to advance $6,500 on land and $500 on another and indefinite arrangement. Jones v. Buck \[Iowa\] 120 NEV 112.

01. Hardinger v. Columbia, 50 Wash. 40%, 99 P 445. Broker ordinarily has no right to conclude terms and conditions of sale.

Plegel v. Dowling \[Or.\] 102 P 178. Broker ordinarily has no right to make sale where owner

74. No right to accept smaller payment merely stated to broker that he would sell

property and specified price and terms.

Hutchins v. Wertheimer, 51 Wash. 53%, 99 P 677. Broker has no implied authority to price per acre. Schmidt v. Chintenden, 9 bind his principal by contract of sale. Id.

74. Manker v. Tough \[Kan.\] 98 P 782.

to insert unauthorized forficture clause in Bacon v. Davis, $ Cal. App. 83, 88 P 71.

Such being in the power of owner only in exchange of due authority in writing as required by Civ. Code, $ 1238, subd. 5. Water

75. Larson v. Newman \[N. D.\] 121 NPV 202. Since purchaser is bound to invest-terx v. Dancey \[S. D.\] 122 NPV 430. Under $ 1731, 1727, Code, defining "sale" an instrument giving broker power "to sell for me in my name and receipt for deposit thereon" and "to sell and convey by a good," etc., gives broker authority to make binding contract of sale. Bacon v. Davis, $ 1238.

01. Cal. App. 83, 98 P 71. Such authority was given where broker was not only authorised to find purchaser at certain price on certain terms but owner agreed to convey property upon such price and terms, there

being no reservation or intimation that authority of broker was limited to bringing parties together. Peterson v. O'Connor, 106

of same order as the product of the ineludes no other power not necessarily: incidental thereto."A broker authorized to deliver the deed to the purchaser has been held to have an implied power to receive payment therefor."An exclusive agency may be given by contract," but will not be implied."The giving of an exclusive agency for a fixed period ordinarily deprives the owner of his right to make the sale during such period," but the giving of such agency, where the period is not fixed, does not have such effect."The principal is liable for any misrepresentations made by his broker " and, in general, for his acts," except when the broker is acting wholly outside his scope of authority."But he is not chargeable with knowledge derived by his broker, in the absence of evidence that the broker had this information in mind while he was doing some act or thing within the scope of his employment."The principal may by his conduct ratify an unauthorized act of his broker."

## 2 Mutual rights, duties and liabilities

See 11 C. L. 450--Between the broker and his principal exists a fiduciary relation calling for the exercise of the utmost of sale held ratified by owners' approval in a purchaser. Siegel v. Rosenzweig, 129 writing. Lawler v. Armstrong \[Vash.\] 102 App. Div. 547, 114 NFS 179. Contract held P 775. Held not ratified by letter of owner to broker which does not state that he will consume sale, or that he is satisfied with it, or that broker was authorized to conveyed good title. Metschan v. Swensson sent him but later repudiated contract. Larson v. Newman \[N. D.\] 121 N NVZ 202. Unauthorized contract not ratified by owner sending abstract as requested but calling attention in letter to fact that contract was not as authorized. Hutchins v. Wertherimer, 61 Wash. 639, 99 P 677. Unauthorized act of broker in executing contract of sale and including therein unauthorized provisions, not ratified by owner's reply "All right, offer accepted," when owner had no knowl-edge that broker had acted outside his authority. Hardinger v. Columbia, 60 Wash. 405, 97 P 445. Failure of seller to notify buyer that it had refused order taken by broker on terms not authorized should not be construed as ratification of broker's act. Sterling-Hurd Oil Co. v. Big Four Ice, Light & Fuel Storage Co. \[Tex. Civil. App.\] 116 SW 397. Does not include by implication power to assign rents which may accure. Gund Brew. Co. v. Tourtelotte \[Minn.\] 121 NW 417. So. Not being agent of buyer where he was employed by owner te make sale. Babson v. Cox, 32 App. D. C. 542, S1. Kirshner v. Brown \[Ixan.\] 96 P 848. S2. Under ordinary contract owner has right to employ other brokers to sell same property. Mueller v. Bell \[Tex. Civil. App.\] 117 SW 983. In absence of special agreement, principal by employing broker to secure customer for him does not deprive himself of right to get customer himself or through another broker. Kimball v. Hayes, 199 Mass. 516, 85 NE 875. 88. Huntner v. Venentche Land Co., 50 Wash. 438, 97 P 494. 84. Bluimenthal & Co. v. Bridges \[Ark.\] 120 SW 974; Johnson v. Buchanan \[Tex. Civil. App.\] 116 SW 875. Owner held not prevented from making sale himself to first party who offers price asked, even though broker has promising negotiations under way and though broker has not been accorded reasonable time in which to find good faith.91 Damages may usually be allowed for any failure in respect to this relation,92 but a broker is not liable for his principal where his fault93 and resulting damages do not clearly appear.94 He is not liable to his principal for failure to exercise proper diligence to obtain a purchaser,95 nor will equity enforce specific performance of his contract to use his best endeavors to make a sale.96 All profits which result from this relation belong to the principal.97 The relation forbids the broker, unless the principal have knowledge of all the facts, from purchasing the principal's property for his own benefit,98 or from selling the principal his own property.99 As a general rule, a broker cannot act in a dual capacity representing both parties, without their consent,1 especially where his duties require the exer-

Dec. Dig. **SS 19-38**; 19 Cyc. 203-217; 4 A. & \*\*rect. Id. Although principal had no inter-

E. Enc. L. (2ed.) **SS2**, 968; 23 Id. 896.

91. Humphries v. Smith, 5 Ga. App. 340,

option which by agreement was relin-

63 SE 248. Governed by same rules as

those of trustee. Butler v. Agnew, 9 Cal. App. 327, 99 P 395. Broker owes duty, of

\[Kan.\] 103 P 117. Money received by making full, fair and prompt disclosure of

broker held to belong to principal since

all facts affecting principal's rights and

interests as pertaining to sale. Rodman v.

by secondh his lawful compensation. Metschan Manning \[Or.\] 99 P 657.

y. Swensson \[Or.\] 99 P 277. Broker pur

92. Broker may be held liable for failure

to exercise diligence to make sale as

agreed, and it has been held in this connection that such agreement was independent of owner's covenant to convey part

then transferred to principal at advanced

ent of owner's covenant to convey part

of certain unsold lots as part commission.

arising from such deceit, although he him-

and that owner could recover either by

self did not receive all such profits. Grant

ples or reconvention or by separate action

Western Gold Co. v. Chambers \[Cal.\] 101

for damages. Mitchell v. Rushing \[Tex.

P 6. Broker cannot buy property for principal

Civ. App.\] 118 SWV 582. Broker is liable

pal and then charge him more than amount

for damages caused by inducing purchaser

pald plus commission. De L'Archerie v. to permit him to represent him and to de-

Rutherford \[Wash.\] 102 P 1033. Agent,

lay negotiating direct with owner where

who has undertaken lawful agency to

such broker in meantime buys the propo-

etry himself. Bass v. Tolbert \[Tex. Civ. App.\] 112 SWV 1077. In case where broker

failed to investigate concerning note and

interest as requested by principal, broker

held liable for sums principal was legally

required to pay thereon, but not for sums

paid by principal not under legal requirement. Hinrichs v. Brady \[S. D.\] 121 NWV

77. Broker held liable to principal for

difference between interest actually due

and amount be represented to be due. Id.

Where principal, having given broker

exclusive agency, sells off timber, the most

valuable part of.property, broker has

immediate right of action against him for

breach of contract. Hunter v. Wentachee

Land Co., 80 Wash. 438, 97 P 494.

93. Insurance brokers were not liable for

securing assignment to mortgage making

Insurance void, where they were not in-

formed that the mortgage covered persona-

alty so as to affect validity of mortgage.

Fries-Breslin Co. v. Bergen, 168 F 380.

94. No damages shown from broker's failure to send samples where it did not ap-

per that a contract would have been sent.

tered into had such samples been sent.

Cartan v. Wm. Thackaberry Co., 189 Iowa,

586, 117 NWV 953.

95. Siegel v. Rosenzweig, 129 App. Div.

547, 114 NYS 178. And he need not notify

principal that he has procured prospective

purchaser. Id.

86. Jolliffe v. Steele, 9 Cal. App. 312, 98

P 544.

97. Forrester-Duncan Land Co. v. Evatt

\[Ark.\] 119 SWV 282. Though they be indi-

98. Being constructive fraud. De L'Archerie v. Rutherford \[Wash.\] 102 P 1033.

01. See post, $ 4. Contract made by

broker representing both without knowl-

edge of both is not enforceible. Harten v.

Loffler, 81 App. D. C. 362. But when

prety which broker was engaged to purchase

chase cannot be obtained, there is no bad

faith in broker selling to principal his own

98. Rodman v. Manning \[Or.\] 99 P 657.

01. Rodman v. Manning \[Or.\] 99 P 657.

01. Rodman v. Manning \[Or.\] 99 P 657. Sale

to third party for his benefit may be

avoided, being cise of skill, knowledge or influence on behalf of his principal.2 He may ordinarily act for both, however, with their consent, where his duties are not incompatible.3

_Stockbrokers._\[11\] C. L. **450**--Liabilities in stock brokerage contracts based on the illegality of the transaction are elsewhere treated.4 The broker and his customer each undertake the performance of certain well defined obligations toward the other.5 It is a part of the broker's duty to make purchases as instructed * and at the best price obtainable.7 Stock purchased by broker for a customer for full cash consideration becomes the immediate property of the customer.8 The relation of broker and customer in margin transactions,9 in respect to the stock purchased,

property where principal has full knowl-

with where he paid above market price, edge of all facts. Reilly v. Haseltine, 127

Wahl v. Tracy \[Wis.\] 121 NWF 660.

App. Div. 64, 111 NYS 457.

2. Bass v. Tolbert \[Tex. Civ. App.\] 112

3.8 Wahl v. Tracy \[Vis.\] 121 NWF 660;

from broker with knowledge of customer's was in fact injured, or agent intended no wrong, or other party acted in good faith.

id. And in no case can broker act as agent and representative of both in same transaction.

v. Tracy \[Wis.\] 121 NWF 660.

action. Harten v. Loffler, 31 App. D. C. 362.

3. By weight of authority, though decisions are conflicting. Bass v. Tolbert \[Tex. Civ. App.\] 112 SW 1077.

1. See Gambling Contracts.

1. Wahl v. Tracy \[Vis.\] 121 NWF 660;

Quinlan & Co. v. Holbrook \[C. C. A.\] 162 F

142 F

272.

Note: "The broker undertakes and agrees, (1) At once to buy for the customer the stocks indicated; (2) To advance all the money required for the purchase beyond the the 10 per cent finished by the customer; (3) To carry or hold such stocks for the benefit of the customer so long as the margin of 10 per cent is kept good, or until notice is given by either party that the transaction must be closed. An appreciation in the value of the stocks is the gain of the customer and not of the broker. (4) At all times to have in his name and under his control ready for delivery the shares purchased, or an equal amount of other shares as the same stock; (5) To deliver such shares to the customer when required by him, upon the receipt of the advances and commissions accruing to the broker; (6) To sell such shares, upon the order of the customer, upon payment of the like sums to him, and account to the customer for the proceeds of such sale. Under this contract the customer undertakes: (1) To pay a margin of 10 per cent on the current market value of the shares; (2) To keep good such margin according to the fluctuations of the market; (3) To take the shares so purchased on his order when-

ever required by the broker, and to pay the difference between the percentage advanced by him and the amount paid therefore by the broker." Markham v. Jandon, 41 N. T. 235, approved in Richardson v. Stunn, 209 U. S. 865, 52 Law. Ed. 835.--From Quinlan & Co. v. Holbrook \[C. C. A.\] 162 F 272.

6. Not excused from purchasing particular stock ordered by fact that it would have deprecated to same extent as stock purchased contrary to order. Wahl v. Tracy \[Wis.\] 121 NWF 660.

1. Liable to customer for any difference between amount placed in his hands and market value of stock purchased there-

1. Free from liability to general creditors of broker and to purchasers of such stock

from broker with knowledge of customer's was in fact injured, or agent intended no wrong, or other party acted in good faith.

id. And in no case can broker act as agent and representative of both in same transaction.

9. Existence of provision to contract

1. By weight of authority, though decisions are conflicting. Bass v. Tolbert \[Tex. Civ. App.\] 112 SW 1077.

1. See Gambling Contracts.

100 App. Div. 698, 115 NYS 564.

113 App. Div. 698, 115 NYS 564.

1142 F

143 App. Div. 698, 115 NYS 564.

144 F

145 F

146 F

147 F

148 F

149 F

140 F

141 F

142 F

143 F

144 F

145 F

146 F

147 F

148 F

149 F

140 F

141 F

142 F

143 F

144 F
is that of pledger and pledge,10 the right of possession until the stock is fully paid for being in the broker.11 In view of this relation, the broker may, upon reasonable and timely notice having first been given to the customer,12 sell, in the open market,13 on the account of the customer,14 stock bought on a margin, for which

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

21 L. R. A. 102. Moreover, it is well recog-emitory contract to deliver them to the mixed that where a pledge has the res calculator on demand and proper tender.

Food v. Hayes, 15 Gray (Mass.) 375; Covell pledge per se operates as a delivery. Story, Balments (9th Ed.) 266. Second, as early as Kent's day (Novarse v. Prime, 4 Johns.). A like view of the similar "contangony" trans-Ch. (N. Y.J 490), it was decided in the case of a simple pledge that, provided the broker holds sufficient shares of similar stock, the identical shares of each customer need not be kept separate or even retained. The Massachusetts Supreme Court, on the other hand, speaking through Holmes, C. Passos, Stockbrokers, 116) it is submitted to with any specific object as an insur-mountable obstacle to the existence of a pledge. Chase v. Boston, 180 Mass. 458, 62 NB 1059. Yet, in the well-known "Grain Elevator" cases, the confusion of the deb-politor's grain with other grain of like aval "margin" transactions could only be set aside as mere wagers (Dos J., regrads the "extreme tenuity of connection with any specific object" as an insur-mountable obstacle to the existence of a pledge. Chase v. Boston, 180 Mass. 458, 62 NB 1059. Yet, in the well-known "Grain Elevator" cases, the confusion of the deb-politor's grain with other grain of like aval "margin" transactions could only be set aside as mere wagers (Dos J., regrads the "extreme tenuity of connection with any specific object" as an insur-mountable obstacle to the existence of a pledge. Chase v. Boston, 180 Mass. 458, 62 NB 1059. Yet, in the well-known "Grain Elevator" cases, the confusion of the deb-politor's grain with other grain of like aval "margin" transactions could only be set aside as mere wagers (Dos J., regrads the "extreme tenuity of connection with any specific object" as an insur-mountable obstacle to the existence of a pledge. Chase v. Boston, 180 Mass. 458, 62 NB 1059. Yet, in the well-known "Grain Elevator" cases, the confusion of the deb-politor's grain with other grain of like aval "margin" transactions could only be set aside as mere wagers (Dos J., regrads the "extreme tenuity of connection with any specific object" as an insur-mountable obstacle to the existence of a pledge. Chase v. Boston, 180 Mass. 458, 62 NB 1059. Yet, in the well-known "Grain Elevator" cases, the confusion of the deb-politor's grain with other grain of like aval "margin" transactions is regarded as perfectly compatible with a contract of bal "margin". Cf. Chase v. Washburn, 1 Ohio St. 244. The case of only to the extent of his commission. Levy v. Loeb, 85 N. Y. 365, far from conflicting, harmonizes perfectly, with the the exception of the Massachusetts view by New York theory, for the contract specific- ally provided that the identical original securities be carried. The court expressly recognized that ordinarily a return of similar stock is adequate, provided--and this is fundamental--the broker at all times keeps under his control sufficient to satisfy the claims of his customers; the mere possession of ample funds with which to make good a stock shortage is insufficient. Doug-las v. Carpenter, 17 App. Div. 329, 45 NYS 219. Third, the custom of brokers to re-hypotecate stock carried is not a real v. Tracy (VWs.) 121 NW 660. Customer is inconsistency. There is ordinarily no implaction that a pledge shall retain the pledge in his exclusive possession. Jones, Pledges (2ed Ed.) 452. Doubtess in ex-ceptional instances, e. g., an artistic mag-terpiece, such obligation of personal care may arise, but this element is absent in the case of stock certificates. A limitation is that the repledge shall not be for an amount exceeding the indebtedness of the customer to the broker, since such disposition would operate to deprive the customer of immediate possession upon tender of the sum of his indebtedness. Douglas v. Carpenter, supra. Fourth, it is insisted that as stocks are a fluctuating property, the burden should not be upon the broker to call for more "margin" and to give reasonable notice of the time and place of sale. In most jurisdiction, however, and cer-tally on principle, evidence of a trade custom to sell without notice on exhaustion of "margin" is admissible. 6 Columbia Law Review, 855, Even in New York, 118 June 1999, the work presented in this paper is not complete.

21 L. R. A. 102. Moreover, it is well recog-emitory contract to deliver them to the customer on demand and proper tender. Wood v. Hayes, 15 Gray (Mass.) 375; Covell pledge per se operates as a delivery. Story, Balments (9th Ed.) 266. Second, as early as Kent's day (Novarse v. Prime, 4 Johns.). A like view of the similar "contangony" trans-Ch. (N. Y.J 490), it was decided in the case of a simple pledge that stock the customer has failed to pay.18 A broker is liable in the highest measure for all damages sustained from the wrongful conversion of his customer's stock,19 from his failure to sell as instructed,17 or from his failure to invest the customer's funds according to his own subsequent representations.18 He is not relieved from his liability for a conversion by making an unaccepted tender of after acquired stock.19 A stop order does not impose an obligation on the broker to hold the stock until it reaches the specified price.20 Ordinarily he has no implied authority to buy or sell the stock of another in his own name.21 A stock broker is liable for the acts of one authorized to act as his agent,22 but not for an unauthorized act of a mere employee.23 A customer is liable for his failure on demand, to deliver to a broker stock which he has ordered such broker to sell.24 His liability in connection with purchase orders extends only in so far as the purchases are made in accordance with his instructions.25 He may revoke his order at any time before the broker has in good faith acted thereon.26

Footnote 19: We have not been able to use the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer to the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to refer the term "brick" to the term "brick" to refer the term "brick * 13Cur. Law. Brokers SS 4.

- 14A broker's right to a commission from a third party depends upon contract.\[32\]
- 15S 4. Compensation and lien.\[38\] \_Necessity of contract.\[See 11C. L. 431 --A broker's right to compensation is dependent upon the establishment of a valid contract of employment\[34\] procured without fraud\[38\] and possessing mutuality.\[36\] A contract may be implied from an acceptance of the broker's service,\[37\] from proof that they were authorized\[38\] or from subsequent ratification.\[39\] A broker's acceptance of the contract may be implied from his performance of the acts contemplated.\[40\] Performance by the broker is not a consideration for the execution of an employment contract unless the performance be subsequent to such execution.\[41\] A third party is liable for a broker's commission only as he may agree thereto.\[42\]
- 15S show plaintiff was agent to sell property trained a lien. Bank of Laddonia v. Bright-
- 16S. W Subsequent mere special promise
- 17S. Rule of caveat emptor applying where
- 18S. W Subsequent mere special promise

_Substantial performance of his contract by the broker._ See 11 C. L. 458.-A broker's right to commission is based upon the successful termination of his employment,48

made after services rendered held void as without consideration. Shields v. Sterart ment would prove profitable, although disruption was not affected by subsequent agreement made without consideration that broker would not claim commission unless title passed. Rohkohl v. Sussman, 61 Misc. have anything to do with direct negotiations. Casey v. Richards \[Cal. App.\] 101 P 42. State Bank of Lisbon v. Cullen \[N. D.\] 36. Although owner was forced to bring 121 NPV 85. Donnelly v. Cheteljan, 115 NYS >15. Purchaser or another broker was not liable, although plaintiff first called pur-chaser's attention to property and purchaser set no accordance with agreement so arranged purchase that another broker got the commission. Oppenheimer v. Barnett, 131 App. Div. 614, 116 NYS 44. Purcnaser assuming responsibility to retain out of purchase price and to pay broker's commission upon approval of title and his acceptance of lands purchased held not authorized to retain and pay same where only part of land was accepted by him. Cole v. Harvey \[lowa\] 120 NPV 87. Money paid to hold her that "If anybody comes along and by owner when title pays to be paid to take about the place, and you send them to me and they buy the place, I shall give paid to broker where title does not pass, you a commission," and put up "For Sale" but must be returned to owner even though broker may be entitled to commission.

from woman and she talked to him about Bogart v. Reich, 128 App. Div. 854, 113 NYS 141. Purchaser held liable for commission 115 NWV 1134.

where he requested broker to do nothing further, but to allow him to deal directly with owner and agreed that he would pay 845 V. Lynch, 201 Mass. 28, 87 NE 70. the commission if he bought. Siegel v. Rosenzweig, 129 App. Div. 547, 114 NYS 179.

43. Lawler v. Armstrong \[Vash.\] 102 P 775. Improper to insiruct that real estate broker not entitled to commission unless he performed duties not required by terms of contract. E. A. Strout Co. v. Hubbard \[Mc.\] 71 A 1020. In case of severable or apportionable contract such as contract providing that the commission is "to be-come due on one-quarter payment of the selling price of any piece of land sold," substantial performance of part may en-title broker to his commission for such part, although he abandoned remainder of contract. Tilton v. Gates Land Co. \[Wis.\] 121 NPV 381.

Performance held sufficient: Where employment contract provided broker should be entitled to commission when sale af-fected, to be paid when delivery made, by broker would not claim commission unless title passed. Rohkohl v. Sussman, 61 Misc. have anything to do with direct negotiations. Casey v. Richards \[Cal. App.\] 101 P 42. State Bank of Lisbon v. Cullen \[N. D.\] 36. Although owner was forced to bring 121 NPV 85. Donnelly v. Cheteljan, 115 NYS >15. Purchaser or another broker was not liable, although plaintiff first called pur-chaser's attention to property and purchaser set no accordance. with agreement between broker and defendant as to ts got the commission. Oppenheimer v. Barnett, 131 App. Div. 614, 116 NYS 44. Purcnaser assuming responsibility to retain out of purchase price and to pay broker's commission upon approval of title and his acceptance of lands purchased held not authorized to retain and pay same where only part of land was accepted by him. Cole v. Harvey \[lowa\] 120 NPV 87. Money paid to hold her that "If anybody comes along and by owner when title pays to be paid to take about the place, and you send them to me and they buy the place, I shall give paid to broker where title does not pass, you a commission," and put up "For Sale" just must be returned to owner even though broker may be entitled to commission.

From woman and she talked to him about Bogart v. Reich, 128 App. Div. 854, 113 NYS 141. Purchaser held liable for commission 115 NWV 1134.

Where we requested broker to do nothing "Held InsmRefent: Where sale made was further, but to allow him to deal directly with owner and agreed that he would pay 845 V. Lynch, 201 Mass. 28, 87 NE 70. the commission if he bought. Siegel v. Rosenzweig, 129 App. Div. 547, 114 NYS 179.

43. Lawler v. Armstrong \[Vash.\] 102 P 775. Improper to insiruct that real estate broker not entitled to commission unless he performed duties not required by terms of contract. E. A. Strout Co. v. Hubbard \[Mc.\] 71 A 1020. In case of severable or apportionable contract such as contract providing that the commission is "to be-come due on one-quarter payment of the selling price of any piece of land sold," substantial performance of part may en-title broker to his commission for such part, although he abandoned remainder of contract. Tilton v. Gates Land Co. \[Wis.\] 121 NPV 381.

Performance held sufficient: Where employment contract provided broker should be entitled to commission when sale af-fected, to be paid when delivery made, by broker would not claim commission unless title passed. Rohkohl v. Sussman, 61 Misc. have anything to do with direct which, under the ordinary contract, depends upon his having procured a purchaser or a sale \[44\] upon the specified terms.45 A sale subsequent to the termination of the employment will not entitle the broker to a commission,46 where the contract of employment has been revoked 47 in good faith,48 or voluntarily surrendered,49 or all ne gotiations abandoned,\[50\] or the term thereof has expired." Performance indicated by the principal's acceptance of a sale contract is deemed sufficient,\[52\] although the sale be not completed, whether through the fault of the principal \[53\] or of the purchaser.\[54\] A broker's right to a commission does not ordinarily depend upon the payment of the purchase price.\[55\] The usual duties required of a broker in order to entitle him to a commission may be variously limited and modified by exprese agreement,\[56\] the terms of which will be given the usual construction in accordance with the clear intention of the parties.\[57\] A broker having an exclusive agency

self of broker's labor, services and expense -- Ryan, 240 Ill. 391, 88 NE 974. Where real -- without paying therefor. Lawson v. Black -- Diamond Coal Min. Co. \[Wash.\] 102 P 759. -- 49. Surrender held to become operative -- in such contract, see post, this section, Cus-taining same. Jackson v. Parrish \[Ala.\] 47 S 1014. -- 50. As where he severs all relations with -- purchaser. Wheeler v. Beers \[Colo.\] 101 P -- 164 F 986. -- 758. Where broker notified owner that he would not deal further with customer. -- 54. Broker not being required to enforce -- Heeman v. Harris \[Mich.\] 16 Oct. Leg. N. -- 507 662. -- 344, 121 NW 741. Revoked where broker -- stated price in excess of lowest price of -- 35; Moore v. Irvin \[Ark.\] 115 SW 662. See -- owner, allowed purchaser to go with under- -- post, 4, Customer Must be Ready, etc. -- standing that this was lowest price, made -- no arrangements for further negotiations. -- and informed owner that he would do not-- can obtain for me an option to buy the tug -- ing further toward trade, although owner --," held not affected or limited by -- in good faith later sold farm to customer. -- vision -- said $500 to apply on the purchase -- Id. -- But right to commission was not lost -- v. Sun Co., 35 Pa. Super. Ct. 390. Right to -- by abandonment where owner failed to -- commission was not affected, though comm- -- make payment of commission in instal- -- mission was payable from proceeds, since -- mentions as agreed, although broker's continin- -- collection is duty of seller not of broker. -- v. Hudson \[Ark.\] 113 SW 35. -- 121 NW 331. Broker's right to commission -- has not abandoned by his receiving back -- vent parties from. contracting otherwise. -- money paid by customer, where principal -- Stetson v. Sun Co., 36 Pa. Super. Ct. 390. -- represented to broker that he had land to -- Contract held not unreasonable which pro- -- sell when in fact he had none. Peavy v. Videed broker should receive commlusion -- if -- Gerer \[Minn.\] 121 NW 875. -- 51. Broker's contract to find purchaser. -- Kane v. Dawson \[Wash.\] 109 P 837. -- 52. HeId -- to have expired. Peecus Valley Immigration -- paid other farms listed which he desfred -- Co. v. Cecil \[N. M.\] 99 F 695. Unless sale -- delayed by fault of owner. Humphries v. -- 117 NW 1096. By contract, broker may be -- Smith. 5 Ga. App. 340, 63 SE 248. -- 64 to -- entitled to commission though sale be made -- have not expired, but to have time extended -- to his customer after revocation of his -- by request that broker continue his efforts, --ployment. E. A, Strout Co. v. Hubbard -- such request being made by member of -- Committee of two appointed by director of -- S7. Terms of employment should not be -- corporation. Lawson v. Black Diamond -- Coal Min. Co. \[Wash.\] 102 P 759. Extension being implied from owner's encourage -- insourage to proceed and making no objection. Stiewel v. Lally \[Ark.\] 115 SW -- 1134. -- 52. Meltzer v. Straus, 61 Misc. 250, 113 NYS 583. In absence of fraud by broker, -- Moro v. Irvin \[Ark.\] 116 SW 662. When -- 118 NW 719. For effect of foreiture clause -- contract of exchange is executed. Rohkohl -- v. Sussman, 61 Misc. 246, 113 NYS 586. -- 51. Binding contract entered into. Fox v. -- minated, where contract so provides in case -- Ryan, 240 Ill. 391, 88 NE 974. Where en- -- forcible contract is entered into, "sold" and "sale" as used in broker's parol au- -- than v. Wilkerson, 112 NYS 895. Contract -- to pay for listing in case of withdrawal -- is -- veyance must be made or title pass. San- -- valid in case property is listed in custom- -- derson v. Wellford \[Tex. Civ.\] 116 any manner, but listing would at least -- EVY 382. Contract entered into held to be -- mean some mention of property in adver- -- contract of sale not -- an option. Fox v. -- instements, mere taking record of property may have the right to a commission on a sale effected by a third party,\[58\] provided he use ordinary diligence to make a sale,\[59\] but not ordinarily on a sale made by the owner,\[60\] unless such right be necessarily inferred from the employment contract.\[61\] An exclusive agency entitles the broker to a commission on a sale made by another, only when the sale has been actually executed.\[92\]

_Broker must be efficient producing cause of sale_,\[56\] C. L. 454--It is essential to a broker's right to compensation, as determined from all the circumstances of the case, that he be the efficient procuring cause of the sale.\[63\] While it must be through

and making contract not being sufficient.

\*\*E. A. Strout Co. v. Gay \[Me.\] 72 A 881, Where payment of commission is by agreement made dependent on fulfillment of sale to commission, though efforts of each concontract, broker is entitled to commission only when contract was carried out as indicated or when nonperformance was fault of owner. Larson V.

**540**: **BROKERS SS 4.** 13 Cur. Law.\*\*

**This efforts that the minds of the parties met and resulted in agreement on the terms of the transaction,**${}^{\\text{#4}}$ **he need not necessarily have introduced the parties in the first instance,**${}^{\\text{#5}}$ **nor will his employment and act of introducing the parties or starting negotiations be determinative,**${}^{\\text{#6}}$ **unless made so by express contract.**${}^{\\text{#7}}$ **It is not always necessary that the owner shall have known that the broker was the procuring cause**${}^{\\text{#8}}$ **or that the broker shall have been acquainted with the purchaser.**${}^{\\text{#9}}$ **The owner is not liable for a commission on a sale made by himself,**${}^{\\text{#6}}$ \*\*except under an exclusive agency contract for a definite period or under a special contract other-

**abandoned trade but later returned to land** **But broker is not entitled to compensa- and was induced to buy it by tenant to whom** **then, where purchaser unsolicited learned owner paid the commission. McLaughlin v. Hardin, 133 Mo. App. 605, 113 SWW 681.**

**Terms and whole situation upon which deal was closed were entirely different from**

**proposition presented by broker to same purchaser. Morton v. Barney, 140 Ill. App. 333. Lease finally entered into was not**

**provered through broker's instrumentality. Id. Where it does not affirmatively appear that purchaser was induced to apply to**

**owner through means employed by broker. Kalksstein v. Jackson, 182 App. Div. 1, 116 NYS 302. Broker did not bring purchaser and seller together and did nothing which brought about sale, not even notifying seller of name of proposed purchaser. Fubbell v. Hedrich, 142 Ill. App. 404. Final sale was independent work of another after plaintiff had utterly failed to find purchaser. Junk v. Golden Ranch Sugar & Cattle Co., 122 La. 794, 48 S 267. Sale was made through other brokers for less price, and purchased learned of property through advertisement by owner, the contract being that broker should receive commission if sale made through information received from him. Shipman v. Wilkeson, 112 NYS 896. No service was rendered owner of which he had knowledge and which he accepted, although broker voluatly produced a purchaser who made a bid for property which was rejected by owner and thereafter broker had nothing further to do with the transaction, and although such purchaser afterwards obtained the property at original price offered. Albert Booth Cohn Co. v. Lee, 132 App. Div. 697, 117 NYS 550. No effort or influence of broker in procuring contract for plumbing materials was shown. Sand v. Kenney Mfg. Co., 113 NYS 972. Actual purchaser was not procured and was not induced to enter Into negotiations and buy through efforts of broker. Monson v. Carlstrom \[Iowa\] 119 NYW 606. It did not appear that means employed by broker resulted in sale. Wheeler v. Beers \[CoLo.\] 101 P 758. Though sale would not have been made but for broker's unsuccessful attempt to sell to partner of purchaser individually, to which attempt broker devoted money, time and efforts. English v. George Reality Co. \[Tex. Clv. App.\] 117 SWW 996. Though final sale was made through one to whom plaintiff had attempted to sell. Junk v. Golden Ranch Sugar & Cattle Co., 122 La. 794, 48 S 267.**

**64**: **Sale. Walleeston v. Fahnestock, 118 NYS 743. His acts must have drawn purchaser's attention to property and have led to negotiations resulting in purchase. Shipman v. Wilkeson, 112 NYS 895.**

**65**: **Sale. Walleeston v. Fahnestock, 118 NYS 743.**

**66**: **Sale. Walleeston v. Fahnestock, 118 NYS 744.**

**66**: **Sale. Walleeston v. Fahnestock, 118 NYS 743.**

**67**: **Sale. Walleeston v. Fahnestock, 118 NYS 744.**

**68**: **Sale. Walleeston v. Fahnestock, 118 NYS 743.**

**69**: **Sale. Walleeston v. Fahnestock, 118 NYS 744.**

**70**: \*\*Sechrist v. Atkinson, 31 App. D. C. i. Owner procured purchaser. Tracy v. Radeke \[Iowa\] 119 NYW 525. When simple form of relation exists, and sale is made by owner and purchaser was uninfluenced by anything done by broker. Humphries v. Smith, 5 Ga. App. 340, 63 SB 248. Where, although ss.e was made within one week after broker introduced parties, sale made to same party was result of new and independent cause and not result of anything broker had done, his efforts having deflutely failed and spent their force. Corse v. Kelly \[Xam.\] 101 P 1016. Where sale was not result of broker's negotiations, though it was subsequently made to same purchaser upon different terms. Jones v. Buck \[Iowa\] 120 NW 11..

wise providing,71 or where the broker is the procuring cause, although he does not himself actually close the sale.72

\_Customer must be ready, willing and able to purchase,_See 11 C. L. 458_--Under the usual contract of employment,78 a broker is entitled to a commission when he has procured a purchaser who is, at the time fixed for passing title,74 ready, willing and able to purchase 75 upon- the terms proposed by the owner,78 but where the terms are not specified, his right to a commission depends upon a sale being actually made.17 By procuring such a purchaser, the broker has performed his contract, although the transaction is not completed because of wrongful conduct of the principal,78 improper termination of the employment,78 the principal's refusal to consumamate the sale,80 or of defective title,81 unless it is otherwise agreed.82 If

not entitled to commission where sale contract made by him contained an unauthorized clause providing owner should forfeit without broker's assistance. Templeton v. $50 per day for each day's delay in delivering ded, though such stipulation be waward by purchaser. Evans v. Fuqua \[Tex.11 118 SW 132. Purchaser held not ready, willing and able to buy on terms proposed by owner, where broker had unparchae to find purchaser who would pay purchase price and in addition thereto assume such assessments as might be leveld against property, and where by agreement with purchaser secured he might assume assessments and, in case he did so, he could deduct them from purchase price. Kane v. Dawson \[Wash.\] 100 P 837. Change in terms agreed to buy husband do not bind wife. Sliaughter v. Elliott \[Mo. App.\] 119 SWV 481. As with mineral rights reserved. Weaver v. Richards \[Mic.\] 16 Det. Leg. N. 117, 120 NV 815. It was essential under contract providing that broker should find purchaser of laundry business to whom principal was "villing to sell." Wenks v. Haazard \[Iowa\] 121 NWV 1058. Essential that purchaser be ready to buy at price satisfactory to owner, under contract thus providing. Cooper v. Upton, 60 V. Va. 484, 84 SE 528. Broker held not entitled to commission where he inserts in sale contract unauthorized provisions changing time and manner of payments, fixing liquidated damages In case of default, requiring seller to furnish abstract of title within reasonable time, and stipulating that such contract and earnest money shall be held in escrow. Settle v. Oliver, 138 11. App. 210.

77. Johnson v. Sutton \[Miss.\] 49 S 970.

01. Illustrations: Principal's fault or disinclination. Humphlee v. Smith, 6 Ga. App. 340, 63 SE 248. Principal sold the property to another for higher price. Hickman-Coleman Co. v. Leggett \[Cal. Appl.\] 100 P 1071. Principal had previously and without cause revoked broker's exclusive agency. Johnson v. Buchanan \[Tex. Civ. App.\] 116 SWV 875. Principal permitted purchaser to rescind enforce include contract. Bankers' Loan & Inv. Co. V. Spindle, 108 V. 426, 62 SE 266.

01. He raised price to a figure which purchaser would not pay. Sotsky v. Ginsburg, 129 Apr. 41, 114 NYS 114. He decides not never came into possession of the part con- to enforce contract which he accepted. Pinkerton v. Hudson \[Ark.\] 113 SWV 35. He dismissed suit brought to enforce sale con- to prevent the public the principal accept the offered purchaser, he cannot question his readiness and ability to perform upon the proposed terms.\[88\] For the procurement of a contract to be determinative of the broker's right to a commission, such contract must be valid and enforcible by the principal \[84\] or must have been accepted by him.\[88\] In this connection, the authorities conflict in regard to whether a sale contract containing a forfeiture clause is enforcible.\[88\]

_Broker must act in good faith towards principal.\[88\]_ **11 C. L. 459**--As a general rule, a broker must not undertake to act in a dual capacity \[87\] unless it be with the knowledge and consent of the parties interested \[88\] nor must he become a purchaser

\\begin{tabular}{l|l|l}
\\begin{tabular}{l} \\ 514

BROkers SS 4.13 Cur. Law.

for his own benefit.\*\* It has been held that a broker may act for both parties where he is a mere middleman 90 or has no authority to exercise his discretion on behalf of 91 either party. A broker forfeits his right to a commission by any act adverse to his principal,\*\* such as the suppression of material facts,\*\* an attempt to secure for himself unauthorized profits,\*\* a fraudulent act resulting in injury to his principal,\*\*55 \*\*or other acts constituting bad faith.\*\*96

\_Procuring loan.\_See 11 C. L. 440--A broker employed to procure a loan is entitled to his commission when he has procured a person 97 ready and- able to make the loan \*\*98 \*\*upon the terms specified,\*\*99 \*\*and has given his employer notice thereof.\*\*1 **The general rule that the broker is not entitled to his commission until the loan is made** x

man, 61 Misc. 246, 113 NYS 586. Parties contract of purchase. Lawler v. Armstrong held to have known and consented, where it was stipulated that each party should pay part of an agreed commission. Zim- tain more than his agreed commission by merman v. Garvey, 81 Comm. 570, 71 A 780. Not against public policy to represent both with their knowledge. Arthur v. Porter \[Tex. Civ. App.\] 116 Svy 127. Broker may represent both, if with their knowledge and to whom question, though he makes no special disclosure of fact to them. Id. Broker may collect commission from purchaser who has agreed to pay it where at such purchaser's request he has ceased his efforts for owner, even though he has not so notified owner. Siegel v. Rosenzweig, 129 App. Div. 547, 114 NYS 179.

\*\*89. Not entitled to commission where he does. Hess v. Gallagher, 64 Misc. 95, 117 NYS 960. Not entitled to commission where he enters corporation making purv. Chase and thereby becomes joint purv. Mackem \[Mich.\] 16 Det. Leg. N. 456, 132 Incson, 154 Cal. 36, 97 P 10. Wrecker merely acts to bring intimending purchaser and owner together. Siegel v. Rosenzweig, 129 App. Div. 547, 114 NYS 179.

**91. Broker could properly divide his commission with buyer, where seller, a real estate dealer, fixed his own price and did** Hudson \[Ark.\] 113 Svy 35. An opinion not employ such broker to secure best price possible, but only to secure acceptance of his proposition. Law v. Wsfe, 238\*\* Ill. 360, 87 NE 308.

**92. Skinner Mfg. Co. v. Douville \[Fla.\] 49 S 125. But acts ordinarily constituting breach of faith are not such, where relation of principal and agent does not exist, as where owner agrees to pay broker commission in case sales is made to his customer without such broker becoming his agent. Lawler v. Armstrong \[Vhash.\] 102 P 775.**

**93. As where broker procured owner to release his option, and secured to himself**

**94.**: _Droker should disclose anything that would tend to influence owner or affect his interests, such as fact that he would claim commission on sale. Skinner Mfg. Co._ **114 NYS 900. Right depends upon services undertaken regardless of fact that he was- a member of the bar. Kimball v. Hayes, purchaser before sale where no harm re- sulted. Hovey v. Aaron, 133 Mo. App. 573, 113 Svy 718. Failure to disclose fact that specifications of loan of five years. Glover's property. Larson v. Thomas \[Towa\] 121 Nytos 1099.**

**11.**: _Droker agreed to have been published by the author._ \*\*113 Svy 127. Broker was not published by the author.\_ \*\*114 NYS 1090.

does not apply where the loan is not made by reason of the fault of the principal," or by reason of the principal's refusal to accept the loan, and in such case it is not essential that the broker produce the lender or show such lender's ability to make the loan.4 It is ordinarily no breach of faith for the principal to secure the loan elsewhere.5

_Necessity of broker's contract being in writing_ **See 5** C. L. 454 is elsewhere treated.\* \_Amount of commissions and measure of recovery for services.\_See 11\*\* O. L. 460 Where there is an express contract as to the amount of the broker's commission, he cannot ordinarily recover on a quantum merit," but the amount which he may recover is dependent upon the terms of his contract * as reasonably construed,\* and is limited thereby.10 His right to recovery in any amount depends upon his compliance with the terms of such contract.11 In the absence of an express stipulation, a broker is allowed such commission as is reasonable and customary,12 based on the actual purchase price,13 or on the value of the property at the time the services were rendered.14 Brokers are entitled to a reasonable compensation in certain cases where the employment contract is invalid,15 where the principal sells at a reduced price to the purchaser procured,16 or where circumstances have occurred which prevent the agreed commission being proven.17 The broker may generally recover 3. Steele v. Rumore, 117 NYS 189. Where negotiations fall through on account of de-friends in the amount of commission on sale of same fedanta misrepresentations as to security to be given. Holliday v. Rokbury Distilling Co., 130 App. Div. 654, 115 NYS 383,

4. Broker need not even give lender's name. Steele v. Llopman, 115 NYS 1099. Broker held to have been excused from bringing lender into principal's presence, or from disclosing to him lender's name, before bringing suit for commission. Morrison v. Tuska, 115 NYS 611.

1. Especially where it appeared that broker would not succeed. Kimball v. Hayes, 199 Mass., 516, 85 NE 875.

1. See Frauds, Statute of, $ 6.

1. Nelson v. Webster \[Neb.\] 119 NWV 256: Goldstein v. D'Arcy, 201 Mass. 312, 87 NE 584.

1. Executor personally agreeing to pay 5 per cent or such amount as court might fix, upon his failure to have court fix the amount, held liable for the 5 per cent commission. Hickman-Coleman Co. v. Leggett \[Cal. App.\] 100 P 1072. Where commission was to be paid out of proceeds of last three purchase price notes, broker was entitled to interest on such commission only from date of maturity of such notes. Bankers' Loan & Inv. Co. v. Spindle, 108 Va. 426, 62 SB 266. Where contract provided broker should receive "all you get above 82,000 per year" for securing ten-ant, broker was entitled to excess above 82,000 for each year of lease. Goldstein v. D'Arcy, 201 Mass. 312, 87 NE 84. Contract provided broker entitled to what was sold for above certain amount. Heid broker could get no compensation until owners had received such amount, where owners not at fault. Burnett v. Potts, 236 Ill. 499, 86 NE 258. In which case commission may be money, land or other property, to recovery of which usual remedies will apply. Morrison v. Gosnell \[Neb.\] 121 NWP 236.

But contract as to amount of commission to be paid if sale be made to specific pur-13 Curr. L. - 35

6.

from his principal such damages as may be held reasonable where the principal prevents the consummation of his employment.\[18\] He is not, however, entitled to damages from the proposed purchaser for breach of his contract to purchase.\[19\]

\_Actions to recover commissions.\_See 11 C. L. 461--The right to bring an action for services in negotiating the sale of property at the request of the owner existed at common law.\[20\]

\_Pleading.\_See 11 C. L. 461--The contract of employment may be sufficiently set forth in the complaint, though it does not affirmatively appear that all statutory requirements have been complied with.\[21\] If the exigencies of the case demand or permit it, the complaint may state a cause of action on both contract and quantum merit.\[22\] The ratification of a broker's unauthorized act may be sufficiently alleged in general terms and without stating how it was ratified.\[28\] The usual rules apply in respect to the sufficiency of pleading,\[24\] proof in its relation to the pleading,\[25\] and variance.\[28\] By making the plea that he never gave the broker the authority claimed, the defendant does not waive his right to make other defenses.\[27\] While fraud must be specifically plead,\[28\] the defendant may ordinarily show any other defense to the contract without specially pleading such other defense.\[29\] Adverse claimants to a brokerage commission may be required to interplead,\[30\] but a broker suing only for his share of the commission need not include another broker who assisted in the sale.\[81\]

\_Evidence and burden of proof.\_See 11 C. L. 462--The plaintiff has the burden of

18. Owner was liable for damages even plain, alleging plaintiff made sale and In-though purchaser had agreed to pay commission, whereowner wrongfully prevented sale after terms of exchange had been to deliver, held sufflient as against de-App. 23, 115 SWV 487. In such case, the fact that sale contract was not enforible was held to be no defense. Id. Broker employed for definite period and discharged without cause was entitled to damages. Johnson V. Buchanan \[Tex, Civ. App.\] 116 SWV 875. In such case, broker may recover anticipated profits, this being proper measure. Blumenthal & Co. v. Bridges \[Ark.\] 120 SWV 974.

01. Broker cannot thus recover his lost commissions. Le Master v. Dalhart Real Estate Agency \[Tex, Civ. App.\] 112 SWV 185.

01. Such right is not created by statute. Adams v. Grady \[N, J. Law\] 12 A 55.

01. Where statute of frauds requires that contract of listing and for compensation in case of sale shall be in writing, it is not necessary that petition shall state that it is in writing, such statute merely introduce ing new rule of evidence, and not a rule of pleading. Adams v. Grady \[N, J. Law\] 12 A 55.

01. Templeton v. Blegert \[Kan.\] 100 P 654; Lyon v. West Side Transfer Co., 117 IXS 648.

01. Alllegation that principal ratified it with full knowledge of facts was sufficient. Mahon v. Rankin \[Or.\] 102 P 608.

01. Petition setting out written correspondence between parties, which plaintiff claimed constituted contract, and alleged that plaintiff had procured purchaser able and willing to take land on defendants' terms, that defendant was unwilling to convey land to purchaser and refused to pay plaintiff's commission, held sufflient. Johnson V. Huber \[Kan.\] 103 P 98. Com 13 Cur. Law. BROKERS SS 4.

proving his contract of employment," his rendition of the services," the value of his services," and that he was the procuring cause of the transaction." In a suit under the ordinary contract, it is not sufficient merely that he prove his employment and prove that he introduced the customer and the principal." The broker must establish the fact that the party procured was ready, willing and able to conclude the transaction," unless he be relieved from making such proof by the consummation of the transaction," by the principal's repudiation of the employment contract," or by the principal's bad faith." The burden of proving such bad faith rests upon the plaintiff." The burden of proving his defense is upon the employer." The general rules of evidence control the admissibility of testimony as to the employment of the broker," the broker's authority and good faith," his efforts and the services rendered," whether he was the procuring cause," whether he 548

BROKERS $ 4.13 Cur. Law.

the purchaser was willing and able to buy 47 on the terms proposed,48 and as to the amount of the broker's commission.49 Evidence is inadmissible which relates to independent, collateral, or unauthorized, negotiations 50 and other matters not in issue.51 The usual rules apply as to the admissibility of parel evidence to explain or vary written contracts 52 or to show waiver of the time limit 53 or waiver of no-tice of the termination of a contract of employment.54

ing negotiations is admissible to show broker's efforts and likelihood of success, less error in admitting evidence of agreed Lulu v. Fordran \[Tex. Civ. App.\] 115 SW sum when it appeared that broker was en-667. Conversation between broker and prop-spective purchaser admissible only for pur-compensation for hia services. Hancock v. pose of showing efforts made by broker to make sale. Fordran v. Stowers \[Tex. Civ. App.\] 113 SW 631.

56. Plaintiff's negotiations In regard to-46. Evidence of course, conduct, and pur-compensation was for commission on property pur-pose of purchaser is admissible for such chased. Martin v. Baltimore, 109 Md. 264. purpose. Larson v. Thoma (Iowa) 121 NW 71 A 866. Independent negotiations subsequent to-459. Letters between broker and pur-chaser were admissible though correspond-reed v. Light, 170 Ind. 550, 85 NE 9. Evt-ence not directed to owner. Hurst v. Mech-lin \[Ky.\] 119 SW 807. Purchaser may testify whether he would have purchased if Lippman, 115 NYS 1099.

01. It is not error to exclude evidence of dence being admissible to determine whether broker brought about or influenced sale. Larson v. Thoma \[Iowa\] 121 NW 1059. Testimony of plaintiff and third party held admissible to support complaint and show that sale was result of plaintiff's labor. Casey v. Richards \[Cal. App.\] 101 P 86. Defendant may show another broker was pro-curing cause. Russell v. Poor, 133 Mo. App. 723, 119 SW 438.

01. Sale contract was admissible to contraider claim that purchaser was ready, willing, etc. Johnson v. Buchanan \[Tex. Civ. App.\] 116 SW 875. Intending purchaser may testify that he was ready and willing to purchase the property upon terms stated by owner. Jaffe v. Nagel, 114 NYS 905.

01. As bearing on question of whether customer was willing to accept land subject to reservations, it was competent in cross-examination of customer to show declaration made by him while negotiations were pending as to terms upon which he would be willing to accept conveyance. Weaver v. Richards \[Thicl.\] 16 Det. Leg. N. 117, 130 NW 818.

01. Evidence of usual and customary commission held not improperly admitted where contract commission was less. Knight v. Knight, 143 Ill. App. 62. In action on express contract, evidence of value of serv-level was inadmissible. Fordran v. Stowers \[Tex. Civ. App.\] 113 SW 631. Evidence of usual commission was inadmissible where there was specific contract as to amount. Goldstein v. D'Arcy, 201 Mass. 312, 87 NE 584. Proof of nasal commission was admissible under allegation of contract for services implied from acceptance. "Well v. Schwartz \[Tex. Civ. App.\] 120 SW 1098.

01. Construction stated in deed was inadmissible to establish purchase price, being more than than 1 * 13Cur. Law. BROKERS SS 4. 549

_The sufficiency of evidence See 11 C. L. 443_ is discussed in foregoing sections in connection with the specific matters to which the proof is addressed.

_Questions for jury._\[88e 21 C. L. 443\].It is within the sole province of the jury to weigh conflicting evidence in determining a broker's right to a commission.\[56\] It is proper to submit to the jury all controverted questions of fact as to the existence of the employment contract,\[56\] the nature \[67\] and terms of such contract,\[58\] fraud in its procurement,\[59\] its abandonment,\[60\] revocation,\[61\] modification,\[62\] performance,\[63\] or probability thereof,\[64\] the payment of the compensation,\[65\] the amount of compensation to be recovered,\[66\] and the good faith of the parties.\[67\] It is ordinarily improper to submit to the jury the question of what constitutes a reasonable time for making a sale,\[68\] the construction of a written instrument\[69\] and whether its terms are reasonable,\[70\] and whether a given act is within the broker's authority.\[71\] It has been held improper to submit to the jury the question of whether the owner relied on his own judgment of the purchaser's financial ability.\[72\]

- 15K. Frazier v. Garrison, 143 Ill. App. 474.
- 16Court should not grant non-suit where evidence is conflicting. Marum v. Grantiz, 117\] 71 A 1020. Whether broker was procuring cause. Kalkstein v. Jackson, 132 App. Div. 83.
- 16C. Papajian v. Scott, 37 Pa. Super. Ct. 117 NbH of two brokers was procuring cause. Burns v. Moore, 133 Mo. App. 6, 112 Church V. Van House, 15 Idaho, 249, 97 P SSV 1002. Whether broker procuring sale was direct agent of principal or subsequent of another broker. Mueller v. Bell \[Tex. Civ. App.\] 117 SVW 993. Broker's compliance with his contract and whether purchaser procured was ready, willing and able to buy. Lieuwen v. Kline \[Iowa\] 120 N7 12.
- 16A. Probability that sale would have been consummutated within specified time. Hancock v. Stacy \[Tex. Civ. App.\] 116 SVW 177.
- 16C. Whether payment was accepted in full or part settlement. Dickinson V. Hahn \[S. D.\] 119 NWV 1034.
- 16C. Where amount depended on disputed question of number of acres. Jackson v. Stephenson \[Tex. Civ. App.\] 114 SWW 848.
- 16C. Good faith of broker. Heenan v. Harris \[Alch.\] 16 Det. Leg. N. 344, 121 NWV 741.
- 16C. Whether promiladerism and misrepresentation by principal. Ranger v. Leo, 117 NYS 927. Whether principal desiring to procure loan misrepresented to agent amount of Incum-brance on property. Lechnyr v. German-ssky, 118 NYS 969. Bad faith of principal in revoking authority Is jury question. Hanncock v. Stacy \[Tex. Civ. App.\] 116 SVW 177. Whether governor's refusal to complete sap.\] 116 SWW 177. Whether defendant was expricious. Meitzer v. Straus, 61 Misc. 250, 113 NYS 883.
- 16C. Where no inference from evidence of unreasonable delay, otherwise jury ques. tion. Luhn v. Fordman \[Tex. Civ. App.\] 115 SWW 667. In action over stock transactions held question for court, but court's determinations thereof must be consistent. Keller v. Halsey, 130 App. Div. 598, 115 NYS 564.
- 16C. Whether sale of stock was made by plaintiff in own name by virtue of written memorandum, since not their province to constrrete document. Reed v. Light, 170 Ind.
- 16C. Except as bearing on testimony of witnesses as to what terms of contract were. Lee v. Conrad \[Iowa\] 117 NWV 1096.
- 17C. Mahon v. Rankin \[Or.\] 102 P 608.
  Building and construction contracts SS 1. 13 Cur. Law.

The instructions should apply the law to the issues of fact in the case and be applicable to the evidence.13

Footnote 13: The author is grateful to the anonymous referee for the support of the National Science Foundation.

## Building and construction contracts

The scope of this topic is noted below.14

Footnote 14: The author is grateful to the anonymous referee for the support of the National Science Foundation.

## 1. The contract; Sufficiency and interpre-

8. Completion by Owner or Third Person,

- 2. Performance of Contract, 551.
- 3. Modification of Contract, and Changes
- 4. Extra Work, 555.
- 5. Delay in Performance, 556.
- 6. Termination or Cancellation of Con-
- 7. Completion by Owner or Third Person,
- 8. Performance of Contract, 551.
- 8. Architect's and Other Certificates of
- 9. Performance and Arbitration of Dis-
- 10. Argument, 564. Termination or Cancellation of Con-
- 11. Subcontractors, 565.
- 12. Bonds, 565.
- 13. Remediess and Procedure, 569.

## 1. The contract; sufficiency and interpretation.15

See 11 C. L. 484. A bid 70 and acceptance 71 ordinarily comprise the contract and fix its terms.72 A contract is not invalid because contemplating work which can only be done by permission of the public authorities.73 Statutes prescribing the mode of execution of construction contracts must of course be complied with.74 In California failure to record the contract does not invalidate it as between owner and contractor.75 A contractor's duty is defined by the contract,75 and statutory requirements, impos-

72. Judgment of purchaser's financial

- 7. Owner, after opening and examining ability. Moore v. Irving \[Ark.\] 116 SWF 662.
- 73. Instructions held applicable to issues. Yours is the lowest bid." Held acceptance Latta v. Lockman, 139 Iowa, 626, 117 NW of bid, completing contract. Lane v. War-
- 962. Instructions held correct as to require-
- 11. Key 593.
- 12. Acceptance of estimate on work terms proposed. Hansen v. Williams \[Tex.
- 13. SWF 312. Where right to compensation depends upon contract, in-
- 14. Key 711. 250, 86 NE 715. Where bid forstructions should not base right to recover upon conditions not contained in contract.
- 15. A. Strout Co. v. Hubbard \[Me.\] 71 A 1020. Instruction misleading as not taking into consideration evidence contradicting plain-
- 16. Key 711. 115 SWF 803. Where plaintiffs s assertion that he knew purchaser had sent him to defend's place. Barendsen v. Wilder \[Mich.\] 16 Det. Leg. N. 529, 122 NWF 355. Instructions as to proof of contract, fraudulent conduct by plaintiff, ratioation by defendant and other issues held proper. Akfin v. Poffenberger \[Tex. Civ. App.\] 116 SWF 615. Whether defendant accept earned money, understanding that he was to deliver property before certain date, held properly in issue, Baldwin v. Smith \[Tex. Civ. App.\] 115 SWF 111.
- 74. Matters common to all contracts (see Contracts \*), those peculiar to public con-
- 75. Update
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- 86. Update
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- 88. Update
- 89. Update
- 90. Update
- 91. Update
- 92. Update
- 93. Update
- 94. Update
- 95. Update
- 96. Update
- 97. Update
- 98. Update
- 99. Update
- 97. Update
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- 99. Update
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- 99. Update
      ing duties on owners, do not become part of the contract unless expressly made a part thereof.\[83\] An owner-is not bound by a rule of an architect's association of which he has no knowledge.\[84\] A construction contract requiring skill and experience for its performance cannot be assigned.\[85\]

_Fraud, misrepresentation and mistake_ are elsewhere treated.\[86\]

SS 2. \_Performance of contract.\[87\]--See 11 C. L. 440--Performance by the contractor, according to the terms of the contract,\[88\] is a condition precedent to his right to recover thereon,\[89\] unless such performance has been waived\[90\] or prevented by

SS3. Pub. Acts 1905, p. 381, p. 22, requiring

- \[8\]isting of loss caused by breach and cost water tight floors and plastered cellings, not part of contract. Cronin v. Pace

\[Conn.\] 73 A 137.

\[Conn.\] 74 A 137.

the owner." But in the case of contracts of this nature, substantial performance is all that is required,"2 and minor defects in matters of detail will not defeat recovery on the contract,"3 the owner having received substantially what he contracted

accepted wall and fill, power company have been technical or unimportant omis-could not defeat liability for cost of fill, under contract on ground that railway III. 204, 86 NE 692.

Commact held substantially performed:

Evidence held to warrant finding of sub-County Water, Power & Supply Co., 221 Pa.

387, 70 A 797. Where owner procured and paid for cement for use of subcontractor, without demanding that contractor obtain same, there was no refusal by contractor to

note. Mueller v. Burton \[Vis.\] 121 NWV

152. Contract for building dock, filling in

to contractor. McInnis v. Buchanan \[Or.\]

59 P 829. Contractor not responsible for

interior quality of brick which owner's

agent selected. Beck Coal & Lumber Co. v.

Peterson Mfg. Co., 237 111, 250, 86 NE 715.

91. Contractor who is prevented from

fully performing may recover for work

done under the contract. Thacke v. Hernishcm, 115 NYS 216. Owner having wrong-fully prevented performance was liable to

contractor for contract price less payments

made. Warren v. Shealy \[S.\] C. J 65 SE 1.

Plaintiff could recover for being prevented from performing, where his failure to get

permit for alteration of house was due to

owner's failure to remove house from jurisdiction of tenement house department,

which he was to do. Siniscalchi v. Penna-chio, 113 NYS 1003.

92. Waldstrom v. Oliver-Watts Const. Co.

\[Ala.\] 50 S 46; Peterson V. Pusey, 141 NII. App. 578; Carey Mfg. Co. V. Weygandt, 143

III. App. 297. Contractor must show sub-stantial performance to establish right to

lien. Harris v. Graham \[Ark.\] 111 SWV 884. A contractor seeking to recover on the contract need not show the reasonable value

of his incomplete but substantial performance. Mueller v. Burton \[Vis.\] 121 NWV

152. Acceptance of work as substantial performance, notwithstanding known omis-

isons, is a waiver of strict performance;

but in such case there can be no recovery

under allegation of performance. Allen v. Burns, 291 Mass. 74, 87 NE 194. Where contract is pleaded and relied on, the contract

price measures liability for work and materials, though there had been some variations

tions from contract specifications. Buttrick

Lumber Co. v. Collins, 202 Mass. 413, 89 NE

138.

What is substantial performance: Sub-stantial performance by a contractor or architect

means an effort in good faith to perform striety and a completed structure

which conforms to the plan and essentially

satisfies the purpose of the owner. Fooler v. Heltts, 137 Wis., 189, 118 NWV 543. When

incompleteness can be remedied without

the destruction of any material part of the

building erected according to contract,

without the expenditure of an unreasonable sum of money, then such incomplete-

ness is not inconsistent with substantial

performance. Id. Where there has been

no willful departure from terms of contract and no omission in essential points,

and it has been faithfully and honestly performed in material and substantial

bars, recovery may be had, though there

v. Payne \[Neb.\] 121 NWV

138.

18 Cur. Law. Building and Construction contracts SS 2. 553

for,\* though the owner may be entitled to a deduction from the contract price, on account of such defects or omissions.\* The doctrine of substantial performance has no application where the building is destroyed by earthquake before completion or acceptance and use, and where the parties have stipulated as to the division of the loss in case of such destruction.\*\*

If the contractor fails to perform in accordance with contract, the owner may refuse to accept, and will not be liable on the contract or on quantum merit.\* But if he allows the contractor to proceed without objection and accepts and receives the benefit of the work done, he will be liable for its reasonable value * less damages for the contractor's breach, unless such damages have been expressly waived.\* For partial performance, the contractor may recover the reasonable value of work and materials, not exceeding the contract price, less any damages suffered by owner from nonperformance,\* unless the owner wrongfully refused to allow the contractor to perform, in which case damages cannot be allowed owner for nonperformance.2 Where the express contract fails because of a mutual mistake as to price, the contractor may recover the reasonable value of labor and materials furnished,\* regardless of whether the building has or has not increased the value of the land to an amount equal to such cost.\* Where a building is destroyed by fire before the completion of work being done by a contractor, he may recover from the owner the value of his labor, and the materials destroyed which had at the time become a part of the reality; * the measure of recovery being such part of the contract price as the work and materials done and furnished was of the work and materials he agreed to perform and provide.\*

94 Substantial performance is not incon-

**96.** Contractor could not recover where sistent with defects in matters of detail

earthquake destroyed building, and contract which do not defeat the owner's object,

provided for distribution of loss between

thorugh they require the expenditure of contractor and owner. Seebach v. Kuhn, 9

siderable money to give him in substance

Cal. App. 485, 99 P 728.

what he contracted for. Foeller v. Heintz,

187 Wis. 169, 118 N NVV 543.

95.\*\* Cost of remedying defects may be deducted. Nebraska Plumbing Supply Co. v. Payne \[Neb.\] 121 N NVV 243. Substantial performance in good faith entitled contractor to recover less damages for defects. Peet v. East Grand Forks \[Minn.\] 122 N NVV 237. Seebach v. Kuhn, 9

Cal. App. 485, 99 P 723.

Owner entitled to deduction from contract

price equal to difference between value of

work done and that agreed to be done.

Wakstrom V. Oliver-Watts Const. Co. \[Ala.\]

50 S 46. Deduction may be made for omissions or defects notwithstanding certificate

of substantial performance. Mahoney v. Oxford Reality Co., 118 NYS 216. Owner's damage is cost of supplying or remedying defects so as to complete structure such as contract called for. Nebraska Plumbing Supply Co. v. Payne \[Neb.\] 121 N NVV 243. Measure of damages to owner in case of only substantial performance is reasonable

cost of remedying defects which can be practicably remedied so as to make the building conform to contract, and difference between value of structure so completed and value of one as agreed upon.

Foeller v. Heintz, 187 WIs. 169, 118 N NVV 543. But it is said that the fact that the structure as completed is of great or even greater value than the one called for is not controlling. Where there has been substantial performance in good faith, owner must pay contract price less cost of remedying defects. Id.

for,\* though the owner may be entitled to a deduction from the contract price, on account of such defects or omissions.\* The doctrine of substantial performance has no application where the building is destroyed by earthquake before completion or acceptance and use, and where the parties have stipulated as to the division of the loss in case of such destruction.\*\*

If the contractor fails to perform in accordance with contract, the owner may refuse to accept, and will not be liable on the contract or on quantum merit.\* But if he allows the contractor to proceed without objection and accepts and receives the benefit of the work done, he will be liable for its reasonable value * less damages for the contractor's breach, unless such damages have been expressly waived.\* For partial performance, the contractor may recover the reasonable value of work and materials, not exceeding the contract price, less any damages suffered by owner from nonperformance,\* unless the owner wrongfully refused to allow the contractor to perform, in which case damages cannot be allowed owner for nonperformance.2 Where the express contract fails because of a mutual mistake as to price, the contractor may recover the reasonable value of labor and materials furnished,\* regardless of whether the building has or has not increased the value of the land to an amount equal to such cost.\* Where a building is destroyed by fire before the completion of work being done by a contractor, he may recover from the owner the value of his labor, and the materials destroyed which had at the time become a part of the reality; * the measure of recovery being such part of the contract price as the work and materials done and furnished was of the work and materials he agreed to perform and provide.\*

94 Substantial performance is not incon-

**96.** Contractor could not recover where

sistent with defects in matters of detail

earthquake destroyed building, and contract

which do not defeat the owner's object,

provided for distribution of loss between

thorugh they require the expenditure of contractor and owner. Seebach v. Kuhn, 9

siderable money to give him in substance

Cal. App. 485, 99 P 728.

what he contracted for. Foeller v. Heintz,

187 Wis. 169, 118 N NVV 543.

95.\*\* Cost of remedying defects may be deducted. Nebraska Plumbing Supply Co. v. Payne \[Neb.\] 121 N NVV 2 Building and construction contracts SS 2.13 Cur. Law.

A provision that the work shall be to the owner's satisfaction requires only that it be such as must satisfy a reasonable man.7

The owner is liable to the contractor for damages caused by failure to perform on his part 8 but is not liable for acts or omissions of other contractors, especially where the contract expressly relieves him from such liability.8 After refusal by the owner to perform, the contractor has no right to complete his contract and recover the full value or the contract price; his sole remedy is an action for damages for the breach.10

Footnote 8: The author is grateful to the anonymous referee for the support of this work.

\_Architects.See 11 C. L. 467--The relative rights of owner and architect are also controlled by their contract,11 and performance is essential to recovery.12 The rule permitting recovery for substantial performance, less damages for defects and incompleteness, applies to a contract for supervision by an architect.13 Where an architect is employed to prepare plans and specifications for a building the cost of which should not exceed a specified amount, he cannot recover compensation unless the building can be constructed for a sum reasonably near the amount specified,14 and whether the sum required is reasonably near that specified is a question for the jury.15 A departure from the plans by the builder through the fault of the supervising architect, resulting in damage to the owner, is chargeable to the architect.16

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

_Excuses for nonperformance.See 13 C. L. 467--Nothing short of an act of God, or the law, or the act of the other party, excuses nonperformance of a contract.17 Thus, a breach of contract by the owner,18 or prevention by the owner 19 excuses nonperformance, but unforeseen difficulties or expense will not.20_

- \[13\] Cur. Law. Building and construction contracts SS 4. 555
- \[14\] S 3. _Modification of contract, and changes in plans and specifications. \[21\]--See 11_ C. L. 448--The contract may be modified by mutual consent, \[22\] but a contract under seal cannot be modified by an agreement resting in parol. \[23\] Contract provisions as to the mode of authorizing changes must be observed, when applicable. \[24\] An engineer has no power to make changes such as practically abrogate the contract. \[85\]
- \[15\] 4. \_Extra work. \[26\]--See 11 C. L. 448--The contractor may recover the reasonable value of work and materials not included in the contract or plans and specifications \[27\] and furnished at the request of the owner \[28\] or upon his credit. \[29\] But compliance with contract provisions requiring written orders or agreements for extra work is a condition precedent to recovery, \[30\] unless such requirements have been waived by conduct of the owners \[31\] or their duly authorized agents. \[32\]

his drill at 286 feet, he could not recover on his contract unless the owner refused to allow him to perform by digging another well. If he was prevented from so doing, he could recover on contract. Mitchell V. Boyce \[Tex. Civ. App.\] 120 SVW 1016.

- \[20\] Unforseen difficulties encountered in boring well no excuse for failure to perform contract. McCormick v. Jordan \[W. Va.\] 68 SE 778. Contractor liable on contract to repair engine, though, on account of latent defects, it was found that it could not be repaired for sum agreed upon; reasons for not making repairs, and fact that defects were not readily discoverable, immaterial. Marx v. Kilby Locomotive & Mach. Works \[Ala.\] 50 S 136.
- \[21\] Semen Note Sete Contracts, Cent. Dig. SSS 1117-1140; Dec. Dig. SS 236-248; & Cyc. SS 24; & 1C9. SS 25-600, 633-635; 30 A. & E. Enc. L (2ed.) 1209.
- \[22\] Evidence sufficient to support finding that original contract to dig well for $250 was modified when rock was struck and that owner agreed to pay reasonable value of labor and materials. Prye v. Kalbaugh, 34 Utah, 306, 97 P 321. In case of disagreement as to a particular item, a new agreement in respect theret takes such item out of the original contract. Contractor allowed to recover for item agreed upon by parties. Cronin v. Pace \[Conn.\] 78 A 137.
- \[23\] Where contract for building work is under seal, subsequent parol agreement, varying mode and time of payments, is void so far as unexpected, and may be repudiated. Interrante v. Levinson, 129 App. Div. 495, 113 NYS 1082.
- \[24\] Labor and materials used in putting in new sewage system in remododel building held not "alterations" within clause requiring written orders of architects for alterations. Mahoney v. Hartford Inv. Corp. \[Conn.\] 73 A 766.
- \[25\] Where contract was for removal of rock ledge on owner's land, grade to be designated by engineer, engineer could not change grade so as to abrogate contract for removal of ledge. Gaffey v. United Shoe Mach. Co., 202 Mass. 48, 88 NE 330.
- \[26\] Search Note Sete note in 7 Ann. Cas. 213.
- \[27\] See, also, Contracts, Cent. Dig. SSS 1071-1097; Dec. Dig. SS 232; 30 A. & E. Eno. L (2ed.) 1279.
- \[28\] Contract for sewer construction provided different compensation for different classes of work and different kinds of ex * 556 BUILDING AND CONSTRUCTION CONTRacts SS 5. 13 Cur. Law.
- 5. _Delay in performance._\[83\] See 11 c. L. **59**\_Time is of the essence of the contract when it expressly so provides,\[54\] or when the circumstances indicate that such was the intention;\[25\] and failure of the contractor to complete within the time fixed subjects him to liability for damages, in the absence of some valid excuse or waive, but will not wholly prevent a recovery,\[36\] unless the owner exercises his right to rescind.\[37\] Acceptance after the time fixed may make him liable for reasonable value of work and materials.\[88\] When no time is fixed for completion,\[39\] or when the time limit has been removed or waived,\[40\] the law implies an agree- without production of order in writing.\[\] or attorney acting under sealed authority.\[\] Hartlett v. Illinois Surety Co. \[Iowa\] 119 Id. 33 S. Senekh Note: See notes in 1 C. L. 379; 31 Id. 554. 31 Id. 554. 31 Id. 555. 31 Id.

ment to complete within a reasonable time, what is a reasonable time being a question of fact.\[41\] The right to completion within the time stated, and to recover liquidated damages for delay is waived where the delay is caused, wholly or in part,\[42\] by act or default of the owner \[43\] or his agent.\[44\] Merely allowing work to proceed after expiration of the time fixed for completion \[45\] or occupying the building,\[46\] or making payments,\[47\] will not operate as a waiver of the claim for damages for delay.

Liquidated damages for delay cannot be recovered where the owner terminates the contract and takes charge of the work before the time fixed for completion.\[48\]

piled an agreement to complete within rea-

from obligation to perform within stated sonable time, unless there is an express

time. Id. Where owner failed to have

foundation ready for superstructure as. App.\] 119 SW 446. Where the parties make

agreed, his failure was waived of time-

a substantial change in the contract, which

in effect abrogates the time limit clause,

Louis Transit Co., 135 Mo. App. 579, 116

the contractor is allowed a reasonable time

by perform. Not proper to hold contractor

tension of time in case owner did not have

to time limit, and add allowance for change,

Missouri Bridge & Iron Co. v. Stewart, 134

to give 10 days' notice in case of default,

Mo. App. 618, 114 SW 1119. Question becomes one of completion within a reasonable time, and only actual damages can be

foundation ready for superstructure as.

and only actual damages can be

of duty to proceed. Id. Where contractor

recovered, where time clause is waived by

was to give all notices, procure permits,

default of owner. Holland Torpedo Boat

etc, required by authorities, and owner had

only to execute bond, which he did as soon

4L Whether work completed within rea-

sonalable time for jury under all circumstances. American Bridge Co. v. American

sale v. Pugell, 62 Misc. 449, 114 NYS 1084.

Dist. Steam Co., 107 Minn. 140, 119 NNV 783.

In determining what is reasonable time

was caused by fraud of architect, or

for completing work, change in plans, and

default of owner, if any, in furnishing materials should be considered. Missouri

24%. Where contract made architect's de-

Bridge & Iron Co. v. Stewart, 134 Mo. App.

eisions conclusive, delays caused by work

618, 114 SW 1119.

42. No damages allowed for delay, where

both parties were to fault and there was

no means of apportioning delays or damages. Beck Coal & Lumber Co. v. Peterson

with work and complete building without

Mifre. Co., 237 Ill. 250, 86 NFE 715. Where

delays are caused by mutual defaults,

contract penalties for delay are considered

wavled and courts will not attempt to apportion

the delay in an independent action or by

portion delays for which each is responsible and charge contractor with penalties

though he has allowed work to proceed,

for time chargeable to him. Vilter Mifre,

Deveve & Son v. Manhattan Life Ins. Co.,

Co. v. Tygart's Valley Brew. Co., 168 F 1002.

195 N. Y. 234, 88 NE 395. Owner may pro-

Where delay is caused partly by the owner

ter as against delay and still claim damages

er his employees or independent contractors,

the contractor will be exceved, as courts

Co. v. Hartman, 61 Misc. 178, 112 NYS 919.

VIII not attempt to apportion the delay.

40. Delay not waived by taking posses-

Jefferson Hotel Co. v. Brumbaugh \[C. C. A.\]

ston of building before its completion, work

168 F 867. Where the owner is himself

responsible in whole or in part for delay,

62 Misc. 449, 114 NYS 1084.

and has by his acts waived completion

within the time stated, the provision for

liquidated damages is waived, since there

can be no apportionment of same. Holland

Tarpedo Boat Co. v. Nixon, 61 Misc. 469, 115

INTS 573.

43. Owner cannot demand strict per-

formance by contractor unless he himself

performs preliminary work of preparation

and furnishing material. Pittsburgh Bridge

Co. v. St. Louis Transit Co., 135 Mo. App. 579, 116 SW 467. The act of the owner in

commanding extra work or changes require-

ing additional time operates as waiver of

time limit. Ward v. Haren \[Mo. App.\] 119

delay, especially where delay was due to

SW 446. Act of owner which delays or

impedes performance releases contractor

\[CoiD.\] 101 P 766.

Building and Construction Contracts $ 5. 13 Cur. Law.

The contractor is not entitled to an extension of time for causes which might have been foreseen and provided for,\[49\] unless the contract provides therefor,\[50\] but a delay caused by a mistake in an estimate has been held excusable.\[51\] A strike clause does not protect a contractor against the consequences of a voluntary lockout by him.\[52\] A provision requiring a written demand for additional time to complete work is valid and enforcible \[53\] as to all causes for additional time stated in the contract,\[54\] but may be waived by the owner entering into supplemental contracts for extra work requiring additional time for the completion of the whole.\[55\] The right to additional time for causes not mentioned in the contract depends upon the same rules as though no provision for a written demand for time had been made.\[50\] Where the contract requires completion by a stated time, a naked promise to waive the clause, without consideration, is invalid, and the owner is not thereby estopped to claim damages for delay, the contractor not having acted on such promise to his prejudice.\[57\] But such promise of the owner will estop him from insisting upon a stipulation that no allowance of additional time shall be made unless a claim therefor is presented in writing to the architect.\[58\]

The contractor may recover damages from the owner for delays and consequent expenses caused by the owner or his agents,\[59\] but not for delays caused by work contemplated by the contract itself.\[50\] Where the contract provides for an extension of time for certain causes, delays so caused entitle the contractor to additional time but not to damages.\[61\] Extra compensation for completion by a fixed 49. Unless otherwise provided in contract, builder is not entitled to extra time on account of ordinary rains, such as might have been foreseen, nor for other delays or accidents against which he could have provided in his contract. Carter v. Root \[Neb.\] 121 NPV 952.

50. Where contract allowed extensions of time for causes or casualties beyond the control of the contractor, he was not entitled to extension on account of rainy days, holidays, or delays caused by his own subcontractors. Cook & Laurie Cont. Co. v. Denis \[LaL\] 49 S 1014. Delay caused by owner and by injunction issued at instance of municipal authorities entitled him to extensions. Id. Contractor agreed with adjoining owners to build structure with common wall and one entrance, building to cover both lots. Cottages on two lots were to be moved, and contractor's time extended by delay in their removal. Held, one owner v. Brennan \[Ind.\] 87 NS 215. Contract un-could not recover damages from contractor for delay caused by other owner's failure to move cottage. Salisbury v. King \[Ky.\] 119 SWV 160.

01. Contractor not liable to forfeiture of $10 per day for delay caused by mistake in estimate whereby he was compiled to do more rock excavation than contemplated. Gammino v. Dedham \[C. C. A.\] 164 F 593.

01. In action by contractor for damages, he sought to excuse his delay by proving strike; proper to show that employers' association to which he belonged had limited number of men to be employed by order. Mahoney v. Smith, 116 NYS 1091.

01. Carter v. Root \[Neb.\] 121 NPV 952.

Pleading attempting to set up excuses for delay, insuffleient, when 1t did not appear that there had been written demand or consent for extension or that contract requirement as to written extension had been waived. Fohlinger v. Boos, 118 NYS 167, date cannot be recovered where failure to complete work in time stated is due to the negligence of the contract.\[62\]

SS 6. \_Termination or cancellation of contract.\[63\]\_See 11 C. L. 469--Right of action for breach by the contractor accrues to the owner when the contractor refuses to perform,\[64\] and is not waived by a subsequent ineffectual demand for performance.\[65\] A contractor who quits work and consents to the appointment of a receiver of his property, making performance by him impossible, in law abandons the work.\[66\] A refusal to do certain work, on the ground that the contract does not require it, is not an abandonment when the contractor still has time to complete all the work.\[67\] Where the contract has been wrongfully \[68\] terminated by the owner or his agents,\[69\] the contract may sue for damages for breach \[70\] and recover the difference between the contract price and the cost of performance,\[71\] and a clause relieving the owner from liability for damages for delay is no defense to such action,\[72\] or he may recover the reasonable value of work and materials furnished\[73\] together with lost profits.\[74\]

SS 7. \_Completion by owner or third person.\[75\]\_See 11 C. L. 470--Building contracts usually provide that the surety or owner may complete performance upon default or abandonment by the contractor.\[76\] The surety has a reasonable time to elect to complete the work, after notice of abandonment by the contractor.\[77\] The other contractor, this was extent of his rights. He could not recover damages from other on account of another contractor's delay. Goss v. Northern Pac. Hospital Ass'n, 50 Wash, 236, 96 P 1078. Contractor for superstructure made no objection to delay of contractor foundation but commenced work when notified. Held only effect of delay was to extend time of performance.\[78\] The 133 App. Div. 656, 118 XYS 216. An owner is not responsible to a contractor for delays caused by another independent contractor, where contract provides only for extension of time in case of delay so caused. Seebach v. Kuhn, 9 Cal. App. 485, 99 P 172. Where contract between principal and subcontractor provided that architects were agents of owner for purposes of the contract, the contractor was not liable to the subcontractor for delay of architects in delivering plans; only remedy, under contract, was extension of time for completion. Norcross v. Willis, 130 App. Div. 470, 114 XYS 969.

\_Termination or cancellation of contract.\[63\]\_See 11 C. L. 469--Right of action for breach by the contractor accrues to the owner when the contractor refuses to perform,\[64\] and is not waived by a subsequent ineffectual demand for performance.\[65\] A contractor who quits work and consents to the appointment of a receiver of his property, making performance by him impossible, in law abandons the work.\[66\] A refusal to do certain work, on the ground that the contract does not require it, is not an abandonment when the contractor still has time to complete all the work.\[67\] Where the contract has been wrongfully \[68\] terminated by the owner or his agents,\[69\] the contractor may sue for damages for breach \[70\] and recover the difference between the contract price and the cost of performance,\[71\] and a clause relieving the owner from liability for damages for delay is no defense to such action,\[72\] or he may recover the reasonable value of work and materials furnished profits.\[74\]

SS 7. \_Completion by owner or third person.\[75\]\_See 11 C. L. 470--Building contracts usually provide that the surety or owner may complete performance upon default or abandonment by the contractor.\[76\] The surety has a reasonable time to elect to complete the work, after notice of abandonment by the contractor.\[77\] The other contractor, this was extent of his rights. He could not recover damages from other owner on account of another contractor's delay. Goss v. Northern Pac. Hospital Ass'n, 50 Wash, 236, 96 P 1078. Contractor for superstructure made no objection to delay of contractor foundation but commenced work when notified. Held only effect of delay was to extend time of performance,\[78\] The 133 App. Div. 656, 118 XYS 216. An owner is not responsible to a contractor for delays caused by another independent contractor, where contract provides only for extension of time in case of delay so caused. Seebach v. Kuhn, 9 Cal. App. 485, 99 P 172. Where contract between principal and subcontractor provided that architects were agents of owner for purposes of the contract, the contractor was not liable to the subcontractor for delay of architects in delivering plans; only remedy, under contract, was extension of time for completion. Norcross v. Willis, 130 App. Div. 470, 114 XYS 969.

\_Termination or cancellation of contract.\[63\]\_See 11 C. L. 469--Right of action for breach by the contractor accrues to the owner when the contractor refuses to perform,\[64\] and is not waived by a subsequent ineffectual demand for performance.\[65\] A contractor who quits work and consents to the appointment of a receiver of his property, making performance by him impossible, in law abandons the work.\[66\] A refusal to do certain work, on the ground that the contract does not require it, is not an abandonment when the contractor still has time to complete all the work.\[67\] Where the contract has been wrongfully \[68\] terminated by the owner or his agents,\[69\] the contractor may sue for damages for breach \[70\] and recover the difference between the contract price and the cost of performance,\[71\] and a clause relieving the owner from liability 560 BUILDING AND CONSTRUCTION CONTRacts SS 8. 13 Cur. Law.

owner seeking to recover for loss sustained by him in completing a building has the burden of showing neglect or breach by the contractor, and the resulting loss.18 Certification of damage by the architect is sometimes required." The amount recoverable by the owner, in case of completion by him, is the cost of his work 80 over and above the contract price.81 The amount recoverable by the contractor depends largely upon the terms of the contract 82

SS 8. _Architect's and other certificates of performance and arbitration of disputes_.83--See 11 C. L. 470.--The production of a certificate, in proper form,84 made by the architect or engineer named in the contract or agreed upon by both parties,85 is a condition precedent to the right to recover upon the contract, when made so by the contract,86 unless it is shown that such certificate is wrongfully withheld,87

to elect to complete work, unless bond specifies time. Where surety did not act for two weeks after notice, contractor, to whom bond was given, was justified in com-Const. Co. v. Manneschmidt, 129 App. Div. pleiting work himself. Aetna Indemitry Co. v. George A. Fuller Co. \[Md.\] 73 A 738.

83. See 11 C. L. 471, and note on "What 78. Action to recover from contractor excess of cost over contract price. Kann v. Bennett \[Pa.\] 72 A 342.

01. Contract provision that owner may complete upon certificate of architector to get, also, Contracts, Cent. Dig. **1129**- that architect's certificate of expense in-Control by owner in completing contractor, and 1351; Dec. Dig. **1129**- **823**- **823**- **82** or that its production has been waived, \[88\] or that its nonproduction is due to some cause beyond the control of the contractor. \[89\] Such certificates are ordinarily binding and conclusive on both parties, \[90\] as to matters properly covered by them, \[91\] in the absence of proof of fraud, arbitrary action, or such gross mistake as to imply fraud. \[92\] They constitute prima facie evidence where the contract does not make them conclusive. \[88\]

not-show that engineer's certificate of completion had been made. Id. Where contract provided for presentation of certificate by person named as to performance, production of such certificate or proof that it is wrongfully withheld is a condition precedent to recovery of contract price. Bell v. Fox, 129 App. Div. 405, 113 NYES 231. Contract for interlocking signal device for solid rock, and for hard pan, according to engineer's certificate as to character of hard disapproved system, though railroad company had failed to obey another order of the commission, this not affecting approval of the system. Pneumatic Signal Co. v. Texas & P. R. Co., 118 NYES 64. \[Wash.\] 102 P 1047. Contract provision 16 per cent of work was unfinished or did not comply with contract. Fuchs v. Sala- dino, 118 NYES 172. Where architect re- fused to give certificate of expense incurred by contractor in completing work abandoned by subcontractor, contractor could, in suit on bond, prove his expense and damage by other evidence. Aetna Indeminity 60. v. George A. Fuller Co. \[M.\] 73 A 788. \[Wash.\] 102 P 1047. Contract provision 88. A provision requiring a certificate of completion of work before final payment is for benefit of owner and may be waived by him. Hunn v. Pennsylvania Inst, for instruction of Blind, 221 Pa. 408, 70 A 812. Requirement that vouchers for work done, etc., must be approved by architect, waived where many payments were made without requiring such approval. Lunsford v. Wren, 64 W. Va. 458, 63 SE 308. Production of architects' certificates waived where owner raised other objections for refusal to pay, and parties stipulated that only matter in issue was right to recover balance withheld, after part of amount certified had been paid. McInnis v. Buchanan \[Or.\] 99 P 929. Provision that payments should be made only on architect's certificate swaived where owner made payments and gave notes on instalments without requiring certificates. Fuchs v. Sala/dino, 118 NYES 172. Where the owner completes, accepts and occupies a building, after a default by the contractor, whether certificate of completion is waived is for court or jury, accord- ing- to proof. Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 408, 70 A 812. Contract provided work should be done under direction of and to satisfaction of architect, final payment to be made on Hsc certificate. Ooster v. Rust, 114 SWP 242. Provision and promised repeatedly to pay, and made no objection to work. Jury warranted finding waived of conflicts of contract as to certificate by architect. Steelman v. Ludy \[N. J. Law\] 72 A 423. \[N.\] 88. Certificate of architect that work has been done and payment is due is condition precedent to right to recover unless it is wrongfully withheld or waived, or cannot vigning agents, but were not expressly authorized to make conclusive, final certificate, 18 Curr. L. -36. \[N.\] 88.

### Building and Construction Contracts $ 8. 13 Cur. Law.

Contract provisions under which certain questions of fact are to be finally determined by an architect or engineer are valid and binding," and do not constitute a mere naked agreement to arbitrate," nor are such provisions for arbitration merely collateral to and independent of other provisions of the contract," but they are of the very essence of the contract, and the agreement to arbitrate is not subject to revocation." Actual or tendered compliance with such provisions is a necessary condition precedent to recovery on the contract " and a decision or award, made in accordance with the contract," relating to matters actually in dispute and open to arbitration,1 and within the power of the architect or engineer to determine," is conclusive upon the parties " in the absence of fraud or mistake or unreasonable or arbitrary action.4 Such arbitration clauses refer only to matters arising between the owner and contractor, and specified in the contract," and not to matters concerning the performance of duties by the architects themselves." But the fact that the engineer or architect named as arbitrator is in the employ of the owner does not affect his qualification to act as such." Where the arbitrator by mistake makes a partial award, his authority is not terminated but he may complete the award." Such contract provisions do not preclude resort to a court to have a con-

such certificate was only prima facie evel-dence of completion of work. Burden was on owner to impeach such certificate for error, omission, or concealment. Jefferson Hotel Co. v. Brumbaugh \[C. C. A.\] 168 F 87.

94 Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 403, 70 A. 812.

95 Provisions in building and construction contracts whereby architects or engineers are given power to determine finally all disputed matters, and settlement had and payment made on their certificates, do not create a mere naked agreement to submit disputes to arbitration. Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398.

96 Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398.

97 Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398. Contact provided Iron Works \[C. C. A.\] 166 F 398. Can only be terminated by mutual consent. Freder-lek v. Margwarth, 221 Pa. 418, 70 A 797.

98 Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398. Such matters must be determined by architects. Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 403, 70 A 812.

99 Where contract authorized substitution for arbitrator named, an award by a substituted arbitrator was under original contract. Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398.

1. Evidence held to show that parties had already adjusted dispute as to express charges to certain date; improper for award of arbitrator to include such item. Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398.

1. Authority, given to an architect to construe plans and settle disputes in regard thereto, does not give authority to materialy change plans. Foeller v. Hentz, 137 W18. 169, 118 NWP 543.

1. No right to have such questions referred to jury. Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 403, 70 A. 812.

70 A 812. Where parties to a contract have agreed upon an arbiter to determine the quality of work done or materials furnished and have stipulated that his determination shall be conclusive, they are bound by his decision in the absence of fraud or mistake. Town of Sterling v. Hurd, 44 Colo. 486, 98 P 174. Measurements, estimates, and classifications of material by an engineer, to whose judgment these matters are left by the contract, are prima facie correct, in the absence of fraud or mistake, and the burden is on party assailing them to prove them incorrect. Indianapolis Northern Trac. Co. v. Brennan \[Ind.\] 87 NE 215.

4. Evidence held not to show fraud or bad faith in award by architect. Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398. Contract provided that it might be terminated and work completed by owner on certificate by architect of unreasonable delay by contractor. Held, architect's certificate conclusive on question in absence of fraud, bad faith, or unreasonable or arbitrary action by architect. Mahoney v. Oxford Reality Co., 118 NYS 216

1. Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 403, 70 A 812.

1. Whether architects had caused delay by changes, and by failure to perform their duties properly, were questions for jury, not for arbitration by architects themselves. Hunn v. Pennsylvania Inst. for Instruction of Blind, 221 Pa. 403, 70 A 812.

1. It is common practice. Memphis Trust Co. v. Brown-Ketchum Iron Works \[C. C. A.\] 166 F 398. Arbitrator held not disputing to act because he was member of firm of architects for owner whom one party charged with responsibility for delay where it did not appear that architects had incurred any liability to owner, even though at fault as between them and contractor, especially where contractor knew of reia- tion between architect and owner. Id. S, Frederick v. Margworth, 221 Pa. 418, 70 A 797.

tract interpreted," since nothing short of an express waiver of the right to resort to a court to determine rights under a contract will deprive one of that right.10

SS 9. _Acceptance._\[11\]-See 11 C. L. 472--Absolute and unconditional acceptance of work is a waiver of such defects as are known.12 but acceptance is not a waiver of unknown and latent defects,18 and the owner may recover damages for breach of contractor after discovery of defects, within a reasonable time.14 More occupancy, or use, or partial payment, does not necessarily show an acceptance of work,15 though such facts may be considered on the question of acceptance.16 An unauthorized acceptance by an architect or engineer is not binding on the owner 17 especially where the contractor has notice of the agent's want of power to accept.18 Acceptance as a condition precedent to recover may be waived,18 whether work has been fully and unconditionally accepted,20 and whether one accepting work for the owner had authority to do so 21 are frequently questions of fact for the jury. A refusal to ac-

Footnote 18: The author is grateful to the anonymous referee for his constructive support.

9. Provision that the architectects decision as to the construction and meaning of drawings and specifications shall be final does not take from the court power to construcve waiver of defects, though known, in the absence of an express waiver of damages or utterances \[Md.\] 73 A 712. Provision that en-gineer was to classify materials excavated and that his conclusion was to be final did that were testing it and awaiting ap-of contract, it being claimed that he had misinterpreted it. Indianapolis Northern macroint, a program to acceptance, approval by commism-Trac. Co., V. Brennnn \[Ind.\] 87 NE 215. Provision in severe contract that disputes should be referred to engineer, and that his interpretation of specifications and conduct of owner, but mere occupancy or pay-right of parties to judicial interpretation of contract to determine amount of comm-pensation. Gammino v. Dedham \[C. C. A.\] 164 F 583. 164 A Letnamity Co. v. Waters \[Md.\] 73 A 712. 17. Unauthorized or improper acceptance by architect or superintendent is not waiver of owner's claim of damages for breach. We also, Contracts, Cent. Dig. 11457-1179: Dec. Dig. 118 304, 805; 6 Cyc. 67; 30 A. 1& E. Enc. L (2ed.) 127. 12. Acceptance and taking possession of a building with knowledge that it is defective and incomplete is a waiver of such defects, enttling the contractor to recover. Steitz v. Armory Co., 15 Idaho, 551, 99 P 98. 17. Unauthorized or improper acceptance by architect or superintendent is not waiver of owner's claim of damages for breach. We also, Contracts, Cent. Dig. 11457-1179: Dec. Dig. 118 304, 805; 6 Cyc. 67; 30 A. 1& E. Enc. L (2ed.) 127. 12. Acceptance and taking possession of that the engineer shall have power to re-gineer materials not conforming to specifications, and provides for acceptance only when specifications have been followed, an acceptance of work by the engineer is not binding on the owner, being unauthorized. Contract held not to confer power to accept on engineer for town. Town of Sterling v. Hurd, 44 Colo. v. Hurd, 44 Colo.

564Building and construction contracts SS 10. 13Cur. Law.

cept a building authorizes the contractor to enter upon the premises to protect the work from damage.22

SS 10. \_Payment.23--See 11 C. L. 478--The time when payments are due 24 and the amount thereof,25 the amount which may be withheld,26 what are conditions precedent to the right to receive payment,27 and whether payment has been made,28 are questions depending upon the terms of the contract and the facts of the particular case. When no time for payment has been agreed upon, it is not due until the work has been completed.29 The contractor is not entitled to interest on sums not due before actual payment 29 nor on sums withheld to satisfy valid claims of subcontractors.81 Failure to make a payment when due justifies abandonment by the contractor.82

13 Cur. Law. Building and construction contracts SS 12. 565

## 11 Subcontractors

See 11 C. L. 478.--A subcontractor who submits a bid for part of the work upon a building, with knowledge of the specifications and requirements of the original contract will be held to have undertaken to do this portion of the work in accordance therewith.\[34\]

_In Florida_ the right of the subcontractor to a lien depends upon whether anything was due the contractor at the time of the service of the cautionary notice under the statute.\[88\]

_Under the New York lien law_, the subcontractor's claim against the contractor rests upon their contract,\[86\] and his rights against the owner rest upon the right to garnish or attach the amount due the contractor from the owner and to foreclose.\[37\] The lien of the subcontractor attaches perforce of the owner's indebtedness to the contractor.\[88\] Payment to the contractor in full in good faith will defeat the right of the subcontractor to a lien.\[89\] The subcontractor may waive his right to a lien by his contract.\[40\] Where the owner has permitted the subcontractor to proceed with the work, such permission is not a consent, under the lien law, which will enable the subcontractor to file a mechanic's lien.\[41\] The owner of premises and principal contractor are not joint contractors as to a subcontractor nor are they united in interest within the meaning of the lien law,\[42\] and service of summons on the contractor is not the commencement of an action against the owner.\[43\]

## 12 Bonds

See 11 C. L. 478.--A bond is usually required of the contractor. Where the contractor requires the giving of bond, failure to do so is a breach of the contract,\[45\] but if the contractor had been allowed to proceed, the owner cannot rescind for failure to give bond without allowing a reasonable time to procure a bond * and to obviate objections made to a bond tendered.\[47\] The making of certain objections to a bond tendered is a waiver of other objections.\[48\]

## 13 See Mechanics' Liens, for discussion

See 11 C. L. 478.--A subcontractor who submits a bid for part of the work upon a building, with knowledge of the specifications and requirements of the original contract will be held to have undertaken to do this portion of the work in accordance therewith.\[34\]

In Florida the right of the subcontractor to a lien depends upon whether anything was due the contractor at the time of the service of the cautionary notice under the statute.\[88\]

Under the New York lien law, the subcontractor's claim against the contractor rests upon their contract,\[86\] and his rights against the owner rest upon the right to garnish or attach the amount due the contractor from the owner and to foreclose.\[37\] The lien of the subcontractor attaches perforce of the owner's indebtedness to the contractor.\[88\] Payment to the contractor in full in good faith will defeat the right of the subcontractor to a lien.\[89\] The subcontractor may waive his right to a lien by his contract.\[40\] Where the owner has permitted the subcontractor to proceed with the work, such permission is not a consent, under the lien law, which will enable the subcontractor to file a mechanic's lien.\[41\] The owner of premises and principal contractor are not joint contractors as to a subcontractor nor are they united in interest within the meaning of the lien law,\[42\] and service of summons on the contractor is not the commencement of an action against the owner.\[43\]

See 11 C. L. 478.--A bond is usually required of the contractor. Where the contractor requires the giving of bond, failure to do so is a breach of the contract,\[45\] but if the contractor had been allowed to proceed, the owner cannot rescind for failure to give bond without allowing a reasonable time to procure a bond * and to obviate objections made to a bond tendered.\[47\] The making of certain objections to a bond tendered is a waiver of other objections.\[48\]

See 11 C. L. 478.--A subcontractor who submits a bid for part of the work upon a building, with knowledge of the specifications and requirements of the original contract will be held to have undertaken to do this portion of the work in accordance therewith.\[34\]

In Florida the right of the subcontractor to a lien depends upon whether anything was due the contractor at the time of the service of the cautionary notice under the statute.\[88\]

Under the New York lien law, the subcontractor's claim against the contractor rests upon their contract,\[86\] and his rights against the owner rest upon the right to garnish or attach the amount due the contractor from the owner and to foreclose.\[37\] The lien of the subcontractor attaches perforce of the owner's indebtedness to the contractor.\[88\] Payment to the contractor in full in good faith will defeat the right of the subcontractor to a lien.\[89\] The subcontractor may waive his right to a lien by his contract.\[40\] Where the owner has permitted the subcontractor to proceed with the work, such permission is not a consent, under the lien law, which will enable the subcontractor to file a mechanic's lien.\[41\] The owner of premises and principal contractor are not joint contractors as to a subcontractor nor are they united in interest within the meaning of the lien law,\[42\] and service of summons on the contractor is not the commencement of an action against the owner.\[43\]

See 11 C. L. 478.--A bond is usually required of the contractor. Where the contractor requires the giving of bond, failure to do so is a breach of the contractor,\[45\] but if the contractor had been allowed to proceed, the owner cannot rescind for failure to give bond without allowing a reasonable time to procure a bond Bullding and construction contracts SS 12. 13 Cur. Law.

Bonds to secure performance of building and construction contracts are, in some jurisdictions, given the same construction as insurance contracts.\[49\] The sure-rety's liability is measured by the terms and conditions of the bond,\[50\] but these should receive a rational construction.\[51\] The contract for the work is a part of the bond \[52\] and the surety has the right to insist on strict performance of its conditions,\[53\] and he is discharged from liability by any substantial departure from or change in the contract or plans \[54\] made without his consent,\[55\] unless the right to make such change or alteration is expressly given in the bond or in the contract which it secures,\[56\] and, in the absence of conduct, amounting to an estoppel to

meet objections to bond tendered. Shallen- berger v. Standard Sanitary Mfg. Co. \[Pa.\] 68 SE 715.

72 A 600. Whether, in view of conduct of spurcts, parties, three days' notice to give bond as required by contract, or abandon work, was consent. Woodruff v. Schultz \[Mcbl.\] 16 reasonable time, was for jury. Id.

47. Owner having previously waived other objections to bond, except that it was not tendered in time, contractor would be entributed to reasonable time to procure another on objection that bond tendred was executed by foreign company. Shallenberger v. Standard Sanitary Mfg. Co. \[Pa.\] 72 A 500.

01. Refusal to accept bond was on sole ground that it had not been tendered within time allowed by notice given. Held, in action by contractor for damages for breach by owner who did work, proof of contractor's financial condition and fact that bond was of foreign corporation was immaterial.

Shalenberger v. Standard Sanitary Mfg. Co. \[Pa.\] 72 A 500.

49. Surety contracts of this kind are to be construed according to the rule applicable to Insurance contracts. Lakeside Land. Co. v. Empire State Surety Co., 105 Minn.

213, 117 NPV 431. A contractor's bond is to be treated as a contract of insurance by

plans will not release the surety, since this the surety in case of doubt. Lesher v.

U. S. Fidelity & Guar. Co., 239 Ill. 502, 88 NEE 208.

50. Knight & Jillison Co. v. Castle \[Ind.\]

87 NE 976.

51. Though a surety is not Hable beyond the strict terms of its contract, yet the contract must receive a rational construction. Actna Indeminty Co. v. Waters \[Md.\] 72 A 712. Where a surety, seeking to avoid liability on a bond, sets up failure to obtain its consent to an alteration, it cannot objection to a strict adherence by the court to a provision of the contract as to the manner in which such alteration could be legally made. Id.

01. Litchgil v. Gottlieb, 134 Mo. App. 237, 113 SWV 1134. Where parties adopted drawings and specifications and acted upon them and signed contract, signing of drawings and specifications was waived, and omis- sion of signatures did not release surety.

Aetna Indeminty Co. v. Waters \[Md.\] 73 A 712.

53. Litchgil v. Gottlieb, 134 Mo. App. 237, 113 SWV 1134.

01. Litchgil v. Gottlieb, 134 Mo. App. 237, 113 SWV 1134; Bartlett v. Illinois Surety Co.

55.4 Litchgil v. Gottlieb, 134 Mo. App. 237, 113 SWV 1134; Bartlett v. Illinois Surety Co.

\[Iowa\] 119 NPV 729. Any material alteration in original contract, without consent of surety, of surety, and increasing risk, releases

of surety. Haigler v. Adams, 5 Ga. App. 637, 63 SE 715.

68 SE 715.

69 SE 715.

72 A 600. Whether, in view of conduct of spurcts, parties, three days' notice to give bond as required by contract, or abandon work, was consent. Woodruff v. Schultz \[Mcbl.\] 16 reasonable time, was for jury. Id.

47. Owner having previously waived other objections to bond, except that it was not tendered in time, contractor would be entributed to reasonable time to procure another on objection that bond tendred was executed by foreign company. Shallenberger v. Standard Sanitary Mfg. Co. \[Pa.\] 72 A 500.

01. Refusal to accept bond was on sole ground that it had not been tendered within time allowed by notice given. Held, in action by contractor for damages for breach by owner who did work, proof of contractor's financial condition and fact that bond was good defense to action on bond given in connection with original contract. Id.

01. Surety contracts of this kind are to be construed according to the rule applicable to Insurance contracts. Lakeside Land. Co. v. Empire State Surety Co., 105 Minn.

213, 117 NPV 431. A contractor's bond is to be treated as a contract of insurance by

plans will not release the surety, since this would be in nature of forfeiture, and this is not favored. Aetna Indeminty Co. v. Waters \[Mcbl.\] 73 A 712. Alteration involv- NEE 208.

50. Knight & Jillison Co. v. Castle \[Ind deny liability on this ground.57 Where the surety thus consents in advance to alterations, as he may legally do,58 changes within the contemplation of the bond and contract, and made and evidenced as there required,59 do not release him. A contract provision that additional time may be allowed does not permit an extension without the consent of the surety.60 To the extent that a bond enlarges the right of the parties to make alterations, over that given by the contract, its terms control as to the liability of the surety.61 Where the surety has consented to changes, the owner or principal contractor may waive a requirement that changes can be made only upon written order, such requirement being for his benefit, and such waiver will not release the surety,62 especially where the changes are not such as to increase the cost or entitle the contractor to additional compensation.58

Footnote 57: Owner gave three days' notice to contractor, after his default, and owner and surety made new agreements for complement of building according to original contractor, rights upon bond being saved. Efeld snety's indemmitors not released because another was placed in charge of work. Title guarantarts & Trust Co. v. Murphy \[Vwash.\] 100 p 315. Sureties not estopped to deny liability on bond where, after contractor abandoned work, they took all material on ground and received property of contractor's wife, to be applied in completing building, and requested owners not to use on bond for present. Barfield School Dist. v. Green, 134 Mo. App. 421, 114 SW 578.

58. A provision that changes may be made, and that if made and agreed upon they should in no manner relieve or release the sureties in the bond, is valid. Barlett v. Illinois Surety Co. \[Towa\] 119 NW 729.

01. Where contract required changes to be agreed upon, and amount of difference indersed on contract, an indorsement of changes and amounts was compliance. Failure of parties to sign indoresements did not relieve surety. Illinois Surety Co. v. Garrard Hotel Co. \[Ky.\] 118 SW 967. Where contract provided that owner might make changes, the price to be agreed upon in writing, and that such changes should not affect the variety of the bond or release the surety, and the bond provided for changes by owner and contractor without notice to surety and without affecting bond, a change agreed upon by owner and contractor did not release surety though price was not agreed on in writing. Hax-Smith Fritture Co. v. Joll, 133 Mo. App. 404, 113 SW 650.

01. Contract provided that additional time might be allowed, upon certain contingencies.

Held, extension without consent of surety released it. McMullen v. U. S. (C. C. A.) 167 F 460.

60. Hax-Smith Fritture Co. v. Joll, 133 Mo: App. 404, 113 SW 650.

01. Surety not released by changes orally agreed to, provided for in contract by clause allowing changes without releasing surety.60 Bonds usually in- Deminfy the obligee against mechanics' liens,10 and the owner may pay claims which are lienable, and recover the amount from the surety.11 Failure to retain from payments an amount sufficient to pay such claims, as permitted by contract, releases the surety.72 When the obligee in a bond retains an amount equal to claims against the contractor, and is under no legal obligation to pay it, he cannot recover such sum from the surety.73

for all labor and materials when due, and the conditions of the bond are that the contractors will faithfully perform the contract according to its terms, such contract and bond inure to the benefit of laborers and materialmen, and they may maintain an action thereon.54 Where the contract and bond contain on such express promise, but only a general agreement to perform, third persons cannot sue for breach.58 Bond to secure an agreement to deliver work free of liens gives no rights to laborers or materialmen.56 Laborers may sue on bonds given to secure government contracts; by virtue of the act of congress.57 Third persons seeking to enforce the liability of the surety must show compliance with conditions of the bond.58

Footnote 58: https://www.caid.com thy exist,95 subject to the doctrine of ratification.96 A foreign association must conform to the laws of the state regulating similar domestic corporations,97 and the laws pertaining to the right of foreign corporations to do business in the state,98 and its contracts, though in terms solvable at its domicile in a foreign state, must be such as are authorized by domestic corporations.99

SS 2. _Membership and stock._--See 11 C. L. 476--Where an association is a stock corporation its stockholders are liable accordingly.2_Charters and by-laws.\_See 9 C. L. 481

Kinds of stock.\_See 11 C. L. 476

\_Payment of dues.\_See 11 C. L. 476--On failure of members to make payments required by their contracts, fines are usually imposed,3 or the stock is forfeited.4_Maturity of stock and rights of holders of matured stock.\_See 11 C. L. 476--Where an association continues as a going concern for a considerable period after executing notes in settlement with a member as a maturing policy-holder, it cannot plead or prove insolvency prior to that time in an action on the notes.5

SS 3. \_Loans and mortgages. A. In general.\_See 11 C. L. 476--The obligations assumed by the parties will, of course, depend on the terms of the particular con-

4, 46; 6 Cyc. 120-123; 4 A. & E. Enc. L (2ed.) Cent. Dig. $ 5-35; Dec. Dig. $ 5-24, 340; 6 Cyc. 122-141; 4 A. & E. Enc. L. (2ed.) 1026, 1001, 1008.

**95.** Association created for purpose of "building and improving homesteads and lending money to members only" held without, power to become shareholder in similar asfociation, and latter held without power to lend it money as shareholder. Standard Barings & Loan Ass'n V. Aldrich \[C. C. A.\] \[C. C. A.\] \[C. C. A.\] \[C. C. A.\] \[C. C. A.\] \[C. C. A.\] \[C.

## 13 Cur. Law. Building and Loan Associations SS 3B.

tract.1 A borrowing member is presumed to know the provisions of notes given, certificates of stock pledged, and of the articles of the association,1 and these written instruments cannot be varied by parol evidence of oral agreements as to the terms of the loan.1 In the absence of fraud, a member is estopped to deny the verity of the recitals in a loan application \[10\] and cannot escape liability arising therefrom by a plea of failure to read the document or to ascertain its contents.\[11\] One to whom a loan is allowed cannot assert that he was not a stockholder at the time where he subscribes to stock in perfecting the loan and then assigns it to the company as security,\[12\] and, where one becomes a member of a reorganized company when he applies for a loan, he cannot thereafter deny the validity of the law providing for such reorganization.\[18\] When a borrower increases the amount of his loan, a second note and mortgage may be given to cover the whole indebtedness as increased.\[14\] Assignment of the contract is sometimes provided for,\[18\] and it is often stipulated that the association may declare the whole loan due in case of default.\[16\] Unconsicionable contracts will not be enforced as written.\[17\] A withdrawal of an application for a loan must be addressed to officers having authority to consider it.\[18\] The allowance of a loan at an open meeting of the directors at which the preference was offered to the highest bidder, constitutes a compliance with a requirement of competitive bidding.\[18\]

(SS 3) _B. Applicability of, and exemption from, usury laws.\[20\] See 11 C. L. 471_

Loans are not usurious if made in conformity with the law,\[21\] but, to exempt the 7. Contract providing for advancing of assignee and wrote him that it was satisfied $1,000 by association and its reparment in with him as responsible person and re-instalments held not fully discharged on quested refund of loan. Butler v. Home Co-company's part by advancement of the $1,000, operative Co. \[Colo.\] 99 P 54. Contract held there being an insurance feature by which, not entirely executed so as not to be assign. In case of borrower's death before repay-ment of full amount, advanced balance was company. Id. not to be repaid. Butler v. Home Co-oper-ative Co. \[Colo.\] 99 P 54.

s. Iowa Business Men's Building & Loan Ass'n v. Fitch \[Iowa\] 120 NWW 694. Allega-tions that association had falsely construed contract and that under contract as so con-stued loan had been fully paid held not to entities mortgage to cancellation of mortgage. Wiley v. Com. Loan & Sav. Ass'n \[Ind.\] 86 NE 1032.

h. Could not be shown that agent and borrower agreed orally that stock should mature by 84 payments, 90 being required by certificate of stock and articles. Iowa Business Men's Building & Loan Ass'n v. Fitch \[Iowa\] 120 NWW 694. Association not estopped to insist on terms of written contract. Id. Where bond and mortgage made no reference to by-laws or rules, statements by plaintiff's agent during negotiations that certain payments would satisfy loan held admissible under defense of fraud in action to foreclose mortgage. American Bulliding & Loan Ass'n v. Fowler \[Ind.\] 88 NE 118.

10. Wright v. Curtin, 137 11. App. 267. That he was allowed a preference for a loan at regular meeting of stockholders. Id.

11,12. Wright v. Curtin, 137 Ill. App. 267.

13. Holmes v. Royal Loan Ass'n, 183 Mo. App. 329, 107 SW 1005.

01. Held intention of parties that new note and mortgage should be continuing 'se-entity for original contract. Tibbetts v. Deering Loan & Bldg. Ass'n \[Me.\] 72 A 162.

01. Where contract required notice of assignment thereof to company for its approval, company held to have approved assignment where it accepted payments from the contract.\[18\] A.

contract from the operation of the ordinary usury laws, statutory provisions must be complied with in making the loan.\[22\] Otherwise the loan will be held usurious if the charges thereon amount to more than the legal rate of interest,\[23\] but usury cannot usually be predicated upon the deduction of attorney's fees for the examination of the abstract of title to the property mortgaged as security,\[24\] or upon the deduction of the interest in advance.\[25\] 'The burden is on party asserting usury to prove it\[26\] with reasonable clearness,\[7\] and such proof must be confined to the loan in controversy.\[28\] A plea of usury does not put in issue the status of plaintiff as a building and loan association.\[29\]

As a general rule the contract is to be construed with reference to the laws of the association's domicile,\[30\] and a contract not usurious under laws expressly made controlling will be sustained though the interest rate is higher than that allowed by the laws of the forum, provided there is no attempt to evade the usury laws.\[31\] The place where the security is situated may be made the place of performance, and thus render the laws of such place applicable,\[32\] as where the loan is made and handled through the medium of a resident board,\[33\] but the parties will not be allowed arbitrarily to contract against to exclude the operation of the laws of the association's domicile,\[34\] and no presumptions will be indulged in favor of an association attempting thus to avoid the laws of its domicile.\[35\]

**22. Contract usurious If premium is fixed by other methods than prescribed by statute and is greater than legal rate of interest.**

It worth earnings in arriving at amount due Irving v. Iron Belt Building & Loan Ass'n, 63 W. Va. 348, 61 SE 325. Loan usurious where there was no bidding in open meeting and association had not dispensed with such bidding by by-law as authorized by statute.\*\*

Gobe v. Guyer, 237 Ill. 516, 86 NE 1071, 42. 129 Ill. App. 580; Garlick v. Mutual Loan emption of building and loan associations from operation of interest law applies to only interest fines and premiums accruing under act providing for their organization, and, where money is not offered for loan at open meeting to highest bidder but at arbitrary premium faced by directors, loans in not exempt from usury laws. Garlick v. Mutual Loan & Bldg. Ass'n, 238 Ill. 232, 86 NE 236; Cobe v. Guyer, 237 Ill. 568, 86 NE 1088, rye.

Gobe v. Guyer, 237 Ill. 568, 86 NE 1088, rye.

Gobe v. Guyer, 237 Ill. 568, 86 NE 1071, 42. 129 Ill. App. 580; Garlick v. Mutual Loan emption of building and loan associations from operation of interest law applies to only interest fines and premiums accruing under act providing for their organization, and, where money is not offered for loan at open meeting to highest bidder but at arbitrary premium faced by directors, loans in not exempt from usury laws. Garlick v. Mutual Loan & Bldg. Ass'n, 238 Ill. 232, 86 NE 236; Cobe v. Guyer, 237 Ill. 568, 86 NE 1088, rye.

Gobe v. Guyer, 237 Ill. 568, 86 NE 1088, rye.

Gobe v. Guyer, 237 Ill.

(SS 3) _C. Accounting with borrower while solvent.\[30\] See 11 C. L. 477._--A borrowing member usually assumes more obligations than those of a mere borrower to a lender of money,\[31\] and adjustments must be made accordingly.\[38\] The fact that he does not receive the full sum at one time\* does not obviate the payment of interest and premiums on the whole loan according to the contract,\[39\] nor is such payment obviated by the fact that the association did not set aside as a special fund the amount of the loan.\[40\] Voluntary liquidation contemplating the maturing of outstanding stock, as intended when it was issued is not a breach of contract on the part of the association so as to allow borrowers to have their loans adjusted as ordinary loans.\[41\] Upon voluntary liquidation under the New Jersey statute, borrowing members, whether in default or not, are charged with the amount actually borrowed, with lawful interest, and credited with all interest and premiums paid and also with interest on premiums paid from the date of each payment,\[42\] and all payments made as dues are applied to the shares.\[43\] In a suit by a third person, pending liquidation of the association, to enforce subrogation against the mortgaged property by reason of his having made payments for a borrower, the directors and stockholders of the association are not necessary parties.\[44\] Premiums and interest cannot be credited on the stock in acceleration of its maturity for the purpose of stopping payments on the loan where by the terms of the contract the stock is to mature by payment of stock dues and the crediting of dividends.\[45\] Where the borrower has assigned his interest in the property covered by the mortgage, with a guarantee against the association's claim against such property, his remedy at law against a suit to foreclose is inadequate, and he may resort to equity to have the mortgage released on the ground of payment.\[46\]

(SS 3) _D. Accounting after insolvency.\[47\] See 11 C. L. 478._--Insolvency matures the debt regardless of contract provisions,\[48\] and the association may resort to either the mortgage or the pledged stock, or both, for the collection of its claims.\[49\] There is a conflict as to whether payments on pledged stock ipso facto constitute payments on the loan.\[50\] It is declared, however, that the authorities preponderate to the effect that the parties must be held to the terms of their contracts where there appears no explicit intention to merge the indebtedness on the stock in the loan," and under this doctrine the question of such merger is necessarily a question of construction."2 Where there is no such merger, the borrower must repay his loan without credit for premiums paid on stock \[63\] and then look to the association for his share of the assets as a stockholder."4 On the other hand, borrowers as such cannot be charged as stockholders."58 Borrowers, though not parties to the proceedings, are bound by a decree declaring the company insolvent and ordering the collection of all loans."6 A federal court which has taken jurisdiction of dissolution proceedings has ancillary jurisdiction of suits by the receiver to enforce loans, regardless of their amount."71 It it sufficient to sustain such a bill that an indebtedness to the company appears, regardless of whether it is upon the loan or the borrower's stock subscription,"88 and as the true gist of the bill is the insolvency and dissolution of the corporation and an accounting of the mutual rights and liabilities of the association and the member,"89 failure to allege a demand upon the member is not ground for general demurrer."89

**SS 4.**_Termination and insolvency."91_See 11 C. L. 478_--Receivers may be appointed "22 and the assets of the association applied in satisfaction of its debts."49 Under some of the statutes the receiver may sue without special order of court."49

**SS 5.**_Rights of withdrawing shareholders."58_See 11 C. L. 478_--Provisions for withdrawal of the amount paid in instalments on stock, with interest, assumes the continued solvency of the association,"60 and are abrogated with other contract terms in case of insolvency."72 Where legal remedies are adequate, a suit for an ac counting will not lie.\*\* A withdrawing member who fails to show that he has made payments to the association is not entitled to an accounting.\*\*69

**BUILDINGS AND BUILDING RESTRUCTIONS.**

\_The scope of this topic is noted below.\_70

**SS 1. Public Regulation, 575.**

**SS 2. Private Regulation, Restrictive Cove-**

**SS 3. Liability for Unsafe Condition of Prem-**

**SS 2.**

**SS 4. Liability for Negligent Operation of**

**Elevators, 584.**

**SS 1.**\_Public regulation.\_71_See ii C. L._79_.

and the conservation of the general welfare and safety of the public.75 As a general rule before a building may be erected a permit in the nature of a license is required,76 and, while the issuance of such a permit is usually a matter of more or less discretion,77 such a permit can be refused only upon reasonable grounds.78 If, however, a permit is issued contrary to law, it is a nullity.79 Such regulations as the foregoing, if not unreasonable,80 are upheld,81 but one may not be deprived of

to be fireproof, etc. held not unreasonable.

"to provide for regular building of houses Id. Laws 1871, p. 481, p. 415, p. 82, requiring that such fire escapes as may be deemed

of material to be used in construction necessary by factory inspector shall be provided and the outside of factories in state

ing against danger or damage by fire," consisting of three or more stories, is man-

passed ordinance requiring permission to datory, and requires factory owner to seek

be obtained from city council before prop-
from factory inspector such additional dications as are necessary. Arnold v. Na-

a building erected, and under such orda-

tional Starch C0., 194 N, Y, 42, 86 NE 815.

ance refuse permission to owner of house

Laws 1907, p. 481, p. 415, p 82, is mandatory

to make minor alterations, changes and re-

and applies to New York City as well as

pairs, such refusal was unwarranted and

the rest of the state, and factory owner

officials might be enjoined from preventing

who failed to provide fire escape held

such alterations. Harvey v. Elkins (W.

Ilable for injuries to employee who was

v. Jagers, 131 App. Div. 210, 115 NYS 923.

suitor to issue permit to repair will not

Cities have inherent power to establish fire

be granted where petition for writ does not

limits and to prohibit the repair of build-

show any ordinance requiring him to issue

ings within such limits which are damaged

such permits. State v. Koch, 138 WIs. 27,

beyond a certain per cent of their value.

115 NWN 839. Allgestion, that it was re-

Ex parte Can {Tex. Cr. App.} 120 SWP 999.

sponetta duty under law and ordinance

Fut if statute provides what the per cent

and that application for permit under law

of damage shall be, city cannot establish a

and ordinance was made, held insufficient.

different basis. By Eq. 1895, at 523, pro-

16.

videa that building damaged over 50 per

cont cannot be repaired. Held that part of

vided that theater building should conform

ordinance which made basis 25 per cent

to certain requirements. Kentucky St.

would not be upheld. Id. Ordinance

1903, p. 2861, authorized creation of board

viding that any wooden building within

of public safety, such board to have concern

train limits, 30 per cent of which is de-

trool of matters relating to the building

stroyed by fire, shall be removed, is valid

department. Building Inspector having re-

exercise of police power. Concrete founda-

jected plans for proposed theater building,

tion cannot be taken into consideration in

beard of public safety granted permit. Held

estimating value of building and relative

harm permit was in violation of ordinance,

proportion destroyed by fire. Davison v.

the requirements of which, as to exits, etc.

Walla Walla \[Wash.\] 100 P 881.

were mandatory. MoGee v. Kennedy \[Ky.\]

75. Building Code of New York, $ 144,

114 SWP 298. Laws 1904, p. 1008, p. 481.

in so far as it arbitrarily and absolutely

amending Brooklyn city after and pro-

forbids creation of any "sky sign" over nine

viding that building commissioner should

feet in height above front wall or oornice,

have certain discretionary powers, did not

in invalid exercise of police power. People

v. Murphy, 129 App. Div. 260, 113 NYS 855,

wmap over street more than one foot from

rgy. 60 Misc. 334, 113 NYS 854.

76. McGee v. Kennedy \[Ky.\] 114 SWP 298.

01. Ordinance applicable to entire borough

Sky sign is structure which cannot lawfully

which undertook to specify uniform stand-

be erected in City of New York without

and of construction for every building, to

permit. Perpitt to erect sign 9 feet high

which it applied, thereafter to be erected,

furnishes no authority to erect one 25 feet

whether building was large or small, or

In height. City of New York v. Winteburgh

cheap or costly, was invalid. Commonwealth Co., 124 App. Div. 641, 109 NYS

would v. Corson, $6 Pa. Super. Ct. 7. Where

335.

it was impossible to determine whether

77. Quaere as to extent of building com-

missioner's discretion in matter of issuing

intended to be embraced within ordinance

or refusing permits to repair. State v.

or excluded from its operations and where

Koch, 128 WIs. 27, 119 NWN 839.

78. Where one had bought a city bundling

invalid. Id.

VOL XIII, No. 4. CURRENT LAW, January, 1910. 577

(Copyright 1910 by The Keefe-Davidson Company.) BUILDINGS AND BUILDING RESTRITIONS--Cont'd. an existing right to construct a building unless the authority appears \[82\]. Tenement houses are often specially subjected to regulation both as to construction \[83\], and as to conduct and maintenance \[84\], but it is held that a violation of regulations of the latter character is not ground for revocation of an approval of alteration plans \[88\], the remedy in such case being the prosecution of the offender \[88\]. Such provisions, however, being penal, are strictly construed \[87\]. The authorities are sometimes given power under certain conditions to make an unsafe building safe at the owner's expense \[88\], but no lien attaches unless the expense incurred is within the provision \[88\] or unless the proceedings have been according to the requirements of the law \[90\]. The duty of determining what appliances and alterations are necessary for protection and safety of persons against dangers from fire in public buildings may properly be delegated to inspectors \[84\], and the fact that details as to such inspectors into two districts, and limiting height of material In tenement house may be prosecutions in commercial district to 125 feet cured under $ 126 of Tenement House Act. and in residential district to from 80 to 100 Fox v. Butler, 60 Misc. 484, 113 NYS 846. feet, is valid exercise of legislative power. 87. Accused, a tailor, had in his possession \[88\], sign in tenement house about quart of Ed. --. safg. 193 Mass. 364, 79 NE 745. --.

82. Where board of trustees of village means net relief that his act while within has not exercised authority given in Laws 1897, p. 391, c. 414, $ 88, subd. 7, to establish fire limits, they cannot enjoin reaction of Voode building any where within village. --. with this spirit and intent, and giving Village of Skaneateless v. Hennesssey, 62 Misc. 347, 116 NYS 788. --.

01. Hall in tenement house, which is 3 feet 5 inches in width except that chimney --.

01. City of New York v. Unsafe Bldg., from side wall about 1 foot, complies with Teenement House Act (Laws 1901, p. 895, 114 NYS 1018. --.

c. 334) $ 20, which requires every entrance --.

89. City, under New York City Building hall in a tenement house to be at least 3 Code (Code of Ordinances, c. 15) $ 153-158, feet 6 inches wide in clear. Umberg v. has no lien on property for expenses in-Neinken, 128 App. Div. 165, 112 NYS 618. --.

01. Having on premises moving picture building for the purpose of removing dead films which are properly protected from bodies. In re Jenkins, 130 App. Div. 702, fire is not violation of Tenement House Act (Laws 1901, p. 900, c. 334) $ 40, prohibiting inf Codec (Code of Ordinances, c. 15) $153-storage of combustible material. Fox v. --.

01. Providing such method, owner is not Butler, 60 Misc. 484, 112 NYS 846. Where done is committed for violation of Tenement House Act (Laws 1901, p. 920, c. 334) $ 141, he is deemed a vagrant and the commissioner of correction is required by Greater 1018. --.

01. --.

New York city charter, $ 710, to prepare and transmit a written order to the super-intendent, warden or sheriff having charge of the institution to which such person is committed, which shall disclose whether such person is committed for the first or second offense, and upon such order the person so committed is entitled to a hearing before the magistrate, and, if the commissioner is for first time within two years, the commissioner's order shall require the person committed to be discharged at expiration of twenty days. People v. Coggrey --.

115 NYS 195. Where such commissioner falls to make any order or certificate at all, he may be compelled by mandamus to make one. Id.

85. Violation of Tenement House Act (Laws 1901, p. 900, c. 334) $ 40, prohibiting storage of combustible material on such premises, is not cause for revocation of an approval of plans which refer to alteration of bullding. Fox v. Butler, 60 Misc. 484, 113 NYS 846. --.

01. One guilty of storing combustible --.

13 Curr. L--.87 tion are not fixed, but are left to be worked out by the administrative officers, does not invalidate the statute.\[92\] Where commissioners are empowered to promulgate general building regulations, they are not authorized to make special orders exempting any particular persons or property from their operation.\[93\] The violation of a building regulation may give rise to a cause of action in favor of persons injured thereby,\[94\] but the erection of a building, which can be used for lawful purposes and which would not effect adjacent owners' rights, ought not to be enjoined because of the possibility that after completion it may be used so as to constitute a nuisance.\[95\] As a prerequisite to the exercise of jurisdiction in summary proceedings for a violation of a building regulation, every requirement of the statute must be strictly observed.\[96\] The duty of complying with building restrictions is upon the person upon whom it is imposed by statute,\[97\] and hence persons who are not amenable to a building regulation cannot be punished because of the dereliction of those who are responsible.\[98\] In a prosecution for allowing a building to project into the street, it is not error to exclude evidence as to the similar position of other structures, offered for the purpose of showing the true boundary line, when there is better evidence from which the line can be determined.\[99\]

## 2 Private regulation, restrictive covenants

See 11 C. L. 481. Restrictive covenants upon the use of lands or buildings are not inherently invalid,\[2\] the legality of a particular covenant of this character being dependent upon its particular purpose or effect,\[3\] and aside from questions of legality, its validity depends upon whether the ordinary elements of a contract exist.\[4\] Such covenants are strictly lawful way, and is a constitutional and c. 426, provides that landlord may dispose, valid enactment. Id. 92. Akron Board of Education v. Sawyer, \[tenant factory where tenant refuses to allow landlord to enter premises for purpose of complying with law. Heid that petition gated they have force of law and are binding on commissioners until they are amended or repealed. Berry v. District of Columbia, 33 App. D. C. 56. Where, at request of plaintiff, a property owner, the commissioners, before application was made for permit, informed plaintiff that the might erect building on his lot of certain height which was higher than that allowed by regulations, and plaintiff went to consider- able expense but when application was made permit to erect one of that height was refused, it was held that act of commissioners before application was without authority and that city was not liable in damages. Id. 94. Under Building Code of New York City, 6 22, making it duty of person excavating more than 10 feet below curb to preserve adjoining wall or using party wall to preserve adjoining building, one who has excavated more than 10 feet and used party wall cannot avoid statutory liability by showing due care. Post v. Kerr-win. 133 App. Div. 404, 117 NY8 761. 95. Where there were no building restrictions on lot which was in locality which was not strictly a residence section, cyber.\[97\] The only thing of working with building restrictions is upon thereon as long as he did not interfere with rights of adjacent owners, and that it might after erection be used as to be a nuisance was not ground for issuing in-junction restraining its erection. Siegel v. Donovan \[Mich.\] 15 Det. Leg. N. 1035, 119 NNV 645. 96. Labor Law (Laws 1906, p. 303, c. 178) 94, as amended by Laws 1908, p. 1217, construed,5 but will, nevertheless, be given effect according to their plain and positive provisions,6 the test to be applied being the intentions of the parties,7 and where the terms are plain8 and the violation thereof intentional,9 they will be strictly enforced.10 Equity will enforce such covenants at the instance of any party designed to be benefited thereby,11 but ordinarily a covenant will not be construed to extend

conditions is a sufficient consideration for a covenant imposing new restrictions. Codman v. Bradley, 201 Mass, 361, 87 NE 691. C. Scharer v. Panter, 127 Mo. App. 433, 105 SW 668. C. Where restrictive covenant applied but differs line restriction to what it called the "main avenues" and map made before restrictive resolutions indicated two classes of highways, one as streets and other as avenues, avenues being wider than streets, it was held that word "main" was surplusage and that covenant was not vague or uncertain. Newberry v. Barkalow (N. J. Eq.) 71 A 752. Where covenant running with the land provided that no building should be erected within 10 feet of street line, plaintiff, who obtained title from defendants's grantor who was common grantor of all property in block, could maintain action to enjoin defendant from maintaining building within 10 feet of street lines. Francis v. Zigering, 128 App. Dlv. 253, 112 NYS 647. Where it is provided in restricting in deeds that no building shall be erected within 20 feet of the front property line of any street or avenue, such restricting applies to both front and street side of corner lots as corner lot fronts on both streets which form the angle. Waters v. Collins (N. J. Eq.) 70 A 84. Where restriction in deed forbids erected of build-ing over nine feet high "on rear end of lot," the owner will be enjoined from erecting factory five stories high occupying entire lot. Wesley v. Sulzer \[Pa.) 73 A 383. Words "rear end of lot" are not indefinite when it is taken into consideration that owner of lot intends to build on whole lot. Id. Where a restriction as to the kind and enjoining defendant from continuing the enbroachment. Taylor v. McAdam, 112 NYS only building on lot shall be a residence of certain price, two buildings of that price could not be erected on such lot. Brown v. Huber (Ohto) 88 NE 322. Restricting use of land to residence purposes is violated by maintaining swap and feed yard. Lowrance v. Woods \[Tex. Civ. App.\] 11 SW 561. Where restrictive covenants, made pursuant to general building scheme in residential district, provided that no factories should be built in such district, no distinction can be drawn between manufacture and thus incistence in existence and therefore coming into existence later. Scrymser v. Seabright Elee. Light Co., (N. J. Eq.) 70 A 977. Electric light station, with necessary incidents attending its operation, is a mandatory within meaning of restrictive building covenant. Id. Where covenant running with land, stipulated that there "shall not be erected, made, or carried on when any part of such premises, any bakeery," it prohibited maintenance of bankery oven in basement ofement house subsequently erected. Simons v. Mutual Const. Co., 132 App. Dlv. 719, 117 NYS 567.

## 13 Cur. Law. Buildings and Building Restrictions SS 2. 579

Where covenant in deed by corporation provide provisionally added that grantee would not violate provisions contained of act of law enforcement, by-laws, rules, or regulations made by as-location "at any time" refers to date of violation, and not date of adoption of by-laws, rules, or regulations. Newberry v. Barkalow \[N. J. Eq.\] 71 A 752. 7. Where the neighborhood is a real-dential section and it appears that original owners never contemplated erection of business buildings on street, a clause in deed restricting location of dwellings applies also to business building. Hyman v. Tash \[N. J. Eq.\] 71 A 742. 8. Plaintiff sold defendant a lot, the deed for which contained covenant to the effect that defendant would not erect any building within seven feet of the south line of such premises, said south line being north line of plaintiff's property. Held that meaning of covenant was plain. Taylor v. McG-Aman, 112 NYS 50. Where the language of a restriction in a deed is unambiguous, acts cannot vary the force of the restriction. Waters v. Collins \[N. J. Eq.\] 70 A 84. B. Where defendant had covenanted not to erect building within seven feet of south line of premises, and while plaintiff was away violated such covenant, his act was held intentional. Taylor v. McAdam, 112 NYS 50. Mandatory injunction against defendant who with knowledge of restrictive covenants was proceeding to violate them. Codeman v. Bradley, 201 Mass. 361, 87 NE 591. 10. Where defendant erected building with with seven feet of south line of his premises, he having covenanted not to do so, the plaintiff was held entitled to judgment ending defendant from continuing the enbroachment. Taylor v. McGAdam, 112 NYS 50. Where complainants acted promptly and defendant progressed with his building in the face of warning, complainants were entitled to mandatory injunction. Hyman v. Tash \[N. J. Eq.\] 71 A 742. Restriction for benefit of adjacent land is in nature of easement and may be enforced by suit for specific performance. Codeman v. Bradley, 201 Mass. 361, 87 NE 591. 11. Scharer v. Panter, 127 Mo. App. 433, 105 SW 668. Grantee having covenanted not to erect building within seven feet of line of grantor's lot, he beyond the original parties unless it constitutes a part of a general plan or scheme of restriction.12 The vital question in this connection, however, is not whether there is a covenant running with the land, but whether the restriction asserted and relied on was imposed upon the servient estate for the benefit of the land in behalf of which it is sought to be enforced,13 the rule being the same whether the restriction imposed is charged upon the land retained by the grantor,14 and where the restriction is still of substantial value to the dominant property, the court will enforce it,18 but the right to insist upon restrictive covenants and to invoke the injunctive powers of the court to enforce them 16 must be clear and satisfactory, and if it appears that its enforcement will not benefit the party suing, or that its violation will not injure him, it will not be enforced.17 In a proceeding by one grantee to compel the grantor to enforce a building restriction against another grantee, the latter must be made a party.18 Where a restriction is implied,19 as from a dedi cation of land as a part of a general building scheme,20 such restriction is equivalent to a covenant with each purchaser,21 and is binding upon all purchasers who had knowledge thereof at time of purchase,22 and is enforcible by one grantee against any other,23 but equity recognizes implied restrictions merely for the purpose of requiring specific observance of the general plan for the benefit of those who have purchased the right to such observance,24 as distinguished from the allowance of damages or the ascertainment of the proportion of injury inflicted by the violation thereof.25 On the other hand, the violation of an express restriction may be actionable though the restriction be not specifically enforcible.26

The right to maintain an action to enforce a restriction may be barred by estropel,27 but the mere fact of delay 28 or acquiescence in a trivial breach,29 or an immaterial violation by a party himself,29 will not preclude relief in case of a substantial violation. A general abandonment of a building restriction will not be inferred from slight and immaterial violations,21 nor will one having a right under a building restriction be denied relief because other adjacent owners have agreed to abolish such restrictions,22 and the contractual rights which grantees have by reason of such restrictions in their decs cannot be effected by different restrictions

20, 21. Lowrance v. Woods \[Tex. Civ. App.\] 118 SW 551.

22. Where as part of general scheme -town-site company set apart certain block in which property of plaintiff and defend-anti is situated as residence property ex-clusively and plaintiff and defendant each purchased with knowledge of that fact, defendant was precluded from maintaining wasgson and feed yard on his lot. Lowrance v. Woods \[Tex. Civ. App.\] 118 SW 551.

01. Where deeds from corporation specifically referred to a general building plan and contained covenant by grantees which provided that grantees would not violate any provisions contained in act of incorporation, by-laws, rules, or regulations made by as-socialation at any time, it was held that lands of grantees were bound by building restriction although it only appeared in its complete form in minute book of corporation. Newberry W. Barkalow \[N. J. Eq. 7\] A 752. Where receipt of payment on lot was not sufficient to support action for specific performance, the date defendant re-evolved deed should be considered date of his purchase as affecting notice to him of dedication of land exclusively for residence purposes. Lowrance v. Woods \[Tex. Civ. App.\] 118 SW 551.

01. Where owner of plot filed map reserving strip of five feet to be always kept open next to street, and subsequently he and adjacent owners agreed that all their land should be subject to such restriction. and thereafter he sold lots abutting on such street, all grantees acquired easement which was apprunent to lot of each and enforceible against any grantee. Batchelor v. Hlinkle, 132 App. Dlv. 620, 117 NYS 542.

24, 25. Stott v. Avery \[Mich.1 16 Det. Leg. N. 295, 121 NWP 825.

26, Where because of changed conditions equity will not enforce restrictive cove-nants, yet action for damages for breach thereof exists. Doyle v. Olson Realty Co., 182 App. Dlv, 200, 116 NYS 824.

27. Where purchaser of a lot in tract subject to building restrictions knew that lots in same tract were to be sold under differ- 217.

### Buildings and Building Restrictions $\\lx@sectionsign$3. 13 Cur. Law.

put in deeds to lots subsequently sold,\[34\] but violations may be such as to constitute an abandonment.\[35\] In determining whether there has been an abandonment of building lien restrictions applicable to several streets, the streets will be considered separately,\[36\] though such restrictions constitute a part of a general plan applicable to all the streets.\[37\]

$\\lx@sectionsign$3. \_Liability for unsafe condition of premises.\[38\]--See 13 C. L. 484--The owner or person in possession of premises,\[39\] or charged with the repair thereof,\[40\] or undertaking to repair the same,\[41\] owes, to all persons who are thereon either by express or implied invitation,\[42\] or rightly passing so near thereto as to be in reach of danger from negligence in regard thereto,\[43\] the duty to use ordinary care\[44\] to have the premises safe\[45\] as well as to warn them of any hidden or lurking danger;\[46\] but

$\\lx@sectionsign$3. Resolution of company, subsequent to the sale of lots to complainant and defend-ant, that buildings might be built near front line of property, did not effect rights by the parties. Waters V. Collins \[N. J. Esq.\] 70 A 984.

$\\lx@sectionsign$4. Where owner of plot divided it into lots and sold such lots with restriction to the effect that no building should be erected here than 25 feet to front line of such lots, and owner and grantees erected all buildings within 15 feet of line, there was an abandonment, and one of the grantees collision to use toilet and in going to same tion to his building to within 5 feet of line. Scharer v. Pantler, 127 Mo. App. 433, 105

$\\lx@sectionsign$5. Newbery v. Barkalow \[N. J. Eq.\] 71 A 752.

$\\lx@sectionsign$6. Rule applies although corporation for-mulated plans for building line restrictions which should cover all its property. Newbery v. Barkalow \[N. J. Eq.\] 71 A 752.

$\\lx@sectionsign$3. _Senen Note: See nothing in 5 C. L. 576;_

$\\lx@sectionsign$9 Id. 446; 9 L. R. A. (N. S.) 379; 10 Id. 177.

See, also, Counties, Cent. Dig. 210; Dec. Dig. $ 143; 11 C. 497; Landlond and Ten-ant, Cent. Dig. $\\lx@sectionsign$629-690; Dec. Dig. $\\lx@sectionsign$162-170; 24 Cyc. 1114-1129; Master and Servant, Cent. Dig. $\\lx@sectionsign$105-208; Dec. Dig. $\\lx@sectionsign$115-117; 26 Cyc. 1113, 1114, 1115, 1116; Municipal Corporations, Cent. Dig. $\\lx@sectionsign$1547-1550, 1803-2512; Dec. Dig. $\\lx@sectionsign$183, 734, 847-857; 25 Cyc. 1285; 1299, 1302, 1732-1748; Negligence, Cent. Dig. $\\lx@sectionsign$41-68; Dec. Dig. $\\lx@sectionsign$28-55; 29 Cyc. 442-487.

$\\lx@sectionsign$8. \_Liability in such case depends upon who was in possession and control of the buildings at time of accident; and where there is no testimory that defendants owned the building, or were in possession or control, and therefore no evidence that they were bound for repairs, it is not error to direct a verdict in their favor at the conclusion of the testimory for the plaintiff. Smith v. Miller, 11 Ohio C. C. (N. S.) 577.

$\\lx@sectionsign$3. A landlord is liable for injuries caused by the falling of iron shutter which was in defective condition when last lease was made. Foley v. Everett, 142 III. App. 250. Leases prior to last lease cannot be offered in evidence to show that other ten-ants had contracted to keep premises in good repair. Id.

$\\lx@sectionsign$40. Person undertaking to underpin building for owner owes to tenants the duty of exercising due care in performance of work. Kennedy v. Hawkins \[Or.\] 102 P 733 See Independent Contractors.

$\\lx@sectionsign$41. Customer, entering public store to trade and injured by falling down unguarded cellarray was on premises by invitation, and not mere licensee. Monstague of the parties. Waters V. Collins \[N. J. Esq.\] 70 A 984.

$\\lx@sectionsign$42. Where owner of plot divided it into lots and sold such lots with restriction to the effect that no building should be erected here than 25 feet to front line of such lots, and owner and grantees erected all buildings within 15 feet of line, there was an abandonment, and one of the grantees collision to use toilet and in going to same tion to his building to within 5 feet of line. Scharer v. Pantler, 127 Mo. App. 433, 105

$\\lx@sectionsign$5. Newbery v. Barkalow \[N

## 13 Cur. Law. Buildings and Building Restrictions $ 3.

The following is a simple example of a new set of 30ally left to the jury as the arbiters of questions of fact.54 One entering a building may ordinarily assume that the party responsible for its condition has performed his duty in regard thereto.55

Where the declaration charges negligence as to the character of the material used in building a wall, evidence of negligence in the manner of construction is not admissible.56

SS 4. _Liability for negligent operation of elevators.57_-_88e 11 C. L. 488_--The owners 58 and operators of passenger elevators owe to passengers 59 the same degree of care in the operation thereof required of passenger carriers generally.50 They must, therefore, by reason of the peculiar nature of the relation,61 exercise a comparatively high degree of care,62 but, aside from any comparison with the care required under ordinary conditions and relations, the care required is merely ordinary care,63 measured by the circumstances of the particular case,64 and the same degree of care

54. Question of plaintiff's due care in entering and leaving defendants' store held for the jury. _Frost v. McCarthy,_ 200 Mass.\_ _Marshall Field & Co.,_ 238 Ill.,\_ 92\_,\_ 87 NE 117, 445, 86 NE 918. VWhether plaintiff, injured by falling down unguarded cellway in defendant's store, was guilty of contributory negligence, a finding of jury negligence held for the jury. Montague v. Tanson,\_ 38 Mont. 376,\_ 99 P 1063. Forgetting that there was a hole in walk which one had promised to repair is not contributory negligence as matter of law, nor negligence per se to walk fast on such walk without looking at same. Udwin v. Spirkel,\_ 136 Ill.,\_ 136 _All. App.,_ 155\_. More fact that one who had gone,\_ _Passenger elevator is a carrier of persons._ _Into basement of store on way to toilet fell into pit is not evidence that he failed to exercise ordinary care. Glaser v. Rothschild_ _\[_M0. 120 SV 1. Observation of loose pieces of mortar and powdered plaster does not, as a matter of law, render a walk so obviously dangerous as to stamp the act of attempting to pass over it as one that no reasonable person would undertake. Frost v. McCarthy,_ 200 Mass.,_ 445,\_ 86 NE 918.\_ _Person entering public store not under obligation to keep constant watch to avoid danger as he had right to assume that storekeeper had premises in reasonably safe condition. Montague v. Hanson,_ 38 Mon. 376,\_ 99 P 1063.\_ _Person v. Schleuter,_ 236 Ill.,\_ 467,\_ 86 NE 112,\_ 175g. 140 Ill. App. 84\_.\_ _Person Note See notes in_ 11 C. L. 486\_,\_ 600: 23 L. R. A. 155; 2. R. A. (N. S.) 744; 14 Id. 350; 15 Id. 402; 56 A. S. R. 804; 8 Ann. Cas. 976.\_ _Sec., also, Carriers. Cent. Dig. **SS 1188**, 1194: Dec. Dig. **SS 293**, 295: 6 Cyc, 622: Counties, Dec. Dig. **SS 143**; 11 Cyc. 497; Land-Iord and Tennen, Dec. Dig. **SS 1165**; 24 Cyc. 119: Master and Servant, Cent. Dig. **SS 208**, 205: Dec. Dig. **SS 117**; 26 Cyc. 1166. Negelligence, Cent. Dig. **SS 60**; Dec. Dig. **SS 46**; 29 Cyc. 470._ _471: 10 A. & E. En. L. (2ed.) 944._ _59. Elevector in building many stories in height installed for purpose of enabling tenants of upper stories to reach same 18 part of building and if it be improperly constructed or negligently operated. the propriter is liable, and he cannot escape liability by attempting to delegate that duty to some one else. Scolator v. Asch. 129 App. Div. **SS 6**, 113 NYS 446._ _59. Relation of passenger and carrier existed between person who took elevator for purpose of seeing superintendent of build-safe condition._ \_59. Elevector in building many stories in height installed for purpose of enabling tenants of upper stories to reach same 18 part of building and if it be improperly constructed or negligently operated.

is required in the matter of guarding the elevator shaft.\[45\] The distinction between passenger and freight elevators is material only with reference to the difference in the circumstances by which the care required is measured, the absolute standard being the same in both cases.\[66\] Whether proper care has been exercised in a particular case is usually a question of fact for the jury,\[47\] subject, however, to the doctrine of res ipsa loquitur.\[48\] In this connection it should be noted that the mere happening of the accident does not necessarily give rise to a presumption of negligence.\[49\] Whether a person was a passenger at the time of his injury is, likewise, usually a question for the jury.\[70\] The proprietor of an elevator is not responsible for the acts of persons not under his control,\[71\] and in any case where the defendant has not been personally negligent he must, in order to be held liable, have held towards the person, whose act caused the accident, some relation recognized by law as fixing upon him the responsibility therefor.\[72\] In all cases the act complained

dence held to warrant finding that injury it was error to charge that if jury found to workman in elevator shaft was caused that the elevator was negligently operated by lack of care of defendant's employ in plaintiff could recover. Keller v. Wove charge of elevator. Schwartz v. Onward Coast Co., 128 App. Div. 588, 115 NTS 380.

68. Where plaintiff was injured by plaster eased by falling down elevator shaft, court submitted question whether entrance to elevator shaft was reasonably guarded and charged jury that it was incumbent on plaintiff to show that defendant did not reasonably guard elevator entrance, re-know, or in the exercise of reasonable care ouirements of St. 1898, $ 1636J, providing that all elevators shall be securely guarded and fenced, was substantially covered. Anderson v. Horlick's Mailed Milk Co., 137 WIs. 569, 119 NNV 342.

01. Where plaintiff was injured by falling down shaft of elevator which was used both for passengers and freight, instruction of-fered by defendant, making distinction between degree of care required in case of freight elevator and passenger elevator, was properly refused where court instructed jury that it was defendant's duty "to excargle the highest degree of care and skill" usually exercised by prudent persons in the same business in the management and operation of elevators of the kind and character as shown by the proof. Ellerman v. Farmer \[KS.\] 118 SVW 289.

01. Whether proprietor used proper care to keep passenger elevator in ordinarily safe condition. Ferguson v. Trunax, 136 WIs. 687, 118 NPV 251. Whether plaintiff injured while standing in freight elevator ehaft, was entitled to recover. Fisher v. Chambers \[Neb.\] 120 NPV 931. Question of negligence with reference to starting elevator just as plaintiff was about to get on. Cullen v. Higgins, 188 Ill. App. 168.

01. Where passenger elevator failed to stop but continued to top of shaft and thereby cable was broken, causing elevator to fail, injurning plantiff, a presumption of negligence arose, making out a case for the plaintiff. Keller v. Wove Realty Co., 128 App. Div. 164, 112 NYS 538. Fact that passenger elevator used in store building fell when persons were being carried thereon is evidence that elevator was mismanaged, or was out of repair or of faulty construction. Steiskal v. Marshall Field & Co., 238 Ill. 92, 87 NE 117, aff. 142 Ill. App. 154.

Where evidence did not show that accident 586 BURGLARY SS 1. 13 Cur. Law. of must have been the proximate cause of the injury,\[73\] and the person seeking to recover must have been free from contributory negligence.\[74\]

Bulk Sales; Burden of Proof, see latest topical index.

BURGLARY.

_The scope of this topic is noted below.\[78\]_

$ 1. What Constitutes, SSB. Breaking and $ 2. Indetermined, SS7. Entry, 587. Nature and Situation of $ 3. Evidence, SSB. $ 58. $ 58. To Constitute the Of. $ 4. Instructions and Verdict, 590. $ 590. $ 591. $ 592. $ 593. $ 594. $ 595. $ 596. $ 597. $ 598. $ 599.

13 Cur. Law. BURGLARY SS 3.

Breaking and entry.See 11 C. L. 487.--Both breaking "" and entry "" are essential at common law and under statutes, declaratory thereof," but otherwise under statutes denouncing breaking or entry." \[58\] The removal of any obstacle will constitute a breaking," and any entry, however slight, is sufficient." The crime is complete upon breaking and entry and abandonment of criminal intent thereafter is no defense." The statutory crime of entering is not necessarily a degree of burglary."

\_Nature and situation of building.See 11 C. L. 488.--\_Stattures very generally extend the crime to include breaking and entering a store or warehouse " or a railway car," or provide a more severe punishment for burglary from an occupied dwelling." A large showcase is not, however, a house within the statutory definition," and burglary of a post-office as defined by federal statute can only be committed in that portion of a building used for post-office purposes." The statutory crime of breaking and entering a public building is not necessarily burglary."

\_To constitute the offense of having burglar's tools in possession.See 11 C. L. 488.--\_An accomplice may be convicted as such although indicted jointly as principal," and it is not necessary to the offense that the accomplice shall have himself assisted in the breaking or have personally entered." One having broken and entered is not a principal in a second entry and aspiration by his accomplices without his knowledge." The testimony of an accomplice must, of course, be corroborated.1

SS 2. _Indictment._" See 11 C. L. 488.--\_The offense must be clearly charged " in all its essentials," and the indictment or information must be laid under the appropriate statute where the common-law offense has been extended." Larceny is not

SS3. Instruction that entry is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW SW7.

SS4. Instruction that breaking is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW7.

SS5. _Indictment._" See 11 C. L. 488.--\_The offense must be clearly charged " in all its essentials," and the indictment or information must be laid under the appropriate statute where the common-law offense has been extended." Larceny is not

SS3. Instruction that entry is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW7.

SS4. Instruction that breaking is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW7.

SS7. Breaking car seal and opening door insufficient. Price v. Com. \[Ky.\] 112 SWV 855.

SS8. _Entering alone sufficient under Rev. Pen. Code, SS 566, subd. 2. State v. Vierek_

\[S. D.\] 120 N NV 1098.

SS7. \_Slightest force sufficient. Montgomery v. State \[Tex. Cr. App.\] 116 SW7160. Opening or unlatching a door. State v. Vierek Is. D.\] 120 N NV 1098. Opening closed door though there was no latch. Brown v. State \[Tex. Cr. App.\] 119 SW 312.

SS8. \_Price v. Com. \[Ky.\] 112 SWV 855.

SS9. \_Schwartz v. State \[Tex. Cr. App.\] 114 SWV 809.

SS9. \_Not under Rev. Pen. Code, SS 571.

State v. Vierek \[S. D.\] 120 N NV 1098.

SS1. Code 1906, SS 1073. Place where goods are kept for sale. State v. Smith \[Miss.\] 47 S 47S.

SS9. _Ky. St._ 1903, SS 1163. Price v. Com. \[Ky.\] 112 SWV 855.

SS3. Laws 1859, D. 318, c. 178; Pen. Code 1855, at. 839a, 845a, 845b. Lewis v. State, 54 Tex. Cr. R. 636, 114 SWV 818.

SS4. Show case, sufficient to contain six men standing, situated within building but not attached thereto, not a "house" within meaning of Pen. Code 1895, art. 843, defining burglary. Clark v. State \[Tex. Cr. App.\] 120 SWV 892.

SS5. _Indictment._" See 11 C. L. 488.--\_The offense must be clearly charged " in all its essentials," and the indictment or information must be laid under the appropriate statute where the common-law offense has been extended."

SS3. Instruction that entry is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW7.

SS4. Instruction that breaking is sufficient held erroneous. Newman v. State \[Tex. Cr. App.\] 116 SW7.

SS5. _Indictment._" See 11 C. L. 488.--\_The offense must be clearly charged " in all its essentials," and the indic a material allegation * but may be joined in the same court,7 and if so charged must be proved as laid.8 It is not necessary to designate the particular felony intended.\* A general allegation is sufficient to charge burglary in either day or nighttime.10 Principal and accessory may be jointly indicted as principals.11 Under the Texas statute denouncing burglary from an occupied dwelling as a separate offense, the indictment must clearly charge occupancy by a designated family.12

SS 3. \_Evidence.13--See 11 C. L. 489--The state must prove the crime 14 and the defendant's connection therewith 16 beyond a reasonable doubt.16 Circumstantial evidence may support a verdict of guilty,17 but strict proof is required.18 Unexplained possession of the fruits of recent burglary, while not prima facie evidence of guilt, is a circumstance to be considered by the jury 19 as raising a strong inference thereof,20 and may be sufficient to support conviction.21 The explanation necessary to overthrow the inference of guilt in such cases must be such as will raise a reasonable doubt,22 whereupon the burden is on the state to prove its falsity.24 Where possession is relied upon to convict, the property must be clearly identified.24 The locus of the burglarized premises establishes venue,25 hence the evidentiary effect of possession of stolen goods is not weakened where such possession is shown

6. Walker v. State, 5 Ga. App. 430, 63 SE 63 SE 685, Walker v. State, 5 Ga. App. 430, 63 SE 63 SE 534, People v. Wileand \[Cal. App.\] 1008.

1. Walker v. State, 5 Ga. App. 430, 63 SE 63.

119 SW 312; Skaggs v. State \[Tex. Cr. App.\] 117

12. Vahler v. State \[Tex. Cr. App.\] 120

01. Vahler v. State \[Tex. Cr. App.\] 117

01. Vance v. Com. \[Ky.\] 115 SW 774.

01. Held not good: Burglary from house occupied and actually used by a family as a private residence then and there occupied and controlled by A. Lewis v. State, 54 Tex. Cr. R. 636, 114 SW 518.

Held good: A certain house then and there actually used, occupied, and controlled by B. as the private residence for his family. Jones v. State \[Tex. Cr. App.\] 117 SW 127. Then and there occupied and controlled by C., which said house was then and there actually used and occupied by the family of C. as a private residence. Knuckles v. State \[Tex. Cr. App.\] 114 SW 825. In the last case the occupation by C. is an immaterial allegation since occupancy by family is sufficient. Id.

13. Search Note: See notes in 68 L. R. A.

141; 12 L. R. A. (N. S.) 199.

See, also, Burglary, Cent. Dig. # 79-109; Dec. Dig. # 29-43; 6 Cyc. 231-239, 240-250; 5 A. & E. Enc. (2ed.) 61.

14. Breaking and entering a post-offlee not shown. Sorenson v. U. S. \[C. C. A.\] 168

F 785.

15. Connection of defendant not shown.

State v. Hedgpath \[Towa\] 120 NW 468.

Alib suffleent to raise reasonable doubt is complete defense. State v. Tapack \[N. J. Law\] 72 A 962.

16. Commonwealth v. McCloskey, 37 Pa. Super. Ct. 621. Jury cannot guess though guess is correct. Id.

Held sufficient to go to jury. Vance v. Com. \[Ky.\] 115 SW 774. To sustain conviction of burglary, People v. Higgins, 9 Cal. App. 267, 98 P 685; Peterson v. State

\[Ga. App.\] 65 SE 311; State v. Wilkes \[S. C.\] 63 SE 685. Walker v. State, 5 Ga. App. 430, 63 SE 63 SE 534; People v. Wileand \[Cal. App.\] 1008.

119 SW 312; Skaggs v. State \[Tex. Cr. App.\] 119 SW 106; Conley v. State \[Tex. Cr. App.\] 116 SW 806. To show burglary from rail.

road car. Crowson v. State \[Tex. Cr. App.\] 118 SW 1086. To show burglary with intent to rape. Ballentine v. State \[Tex. Cr. App.\] 117 SW 872. To certain conviction notwithstanding attempted alibib. People v. Stanley, 130 App. Div. 64, 114 NYS 395. To sustain conviction notwithstanding defense of insamity. Smith v. State \[Tex. Cr. App.\] 117 SW 966.

Held insufficient. Commonwealth v. McCloskey, 37 Pa. Super. Ct. 621; Rayfield v. State, 63 Eng. App. 816, 63 SE 920.

17. State v. Vlerck \[S. D.\] 120 NW 1098.

Held sufficient. Id.

18. Sore to have been outside the jurisdiction.26 Possession of stolen goods other than those charged may be shown for the purpose of identifying the accused,27 but only where clearly connected with the crime charged.28 The testimony of an accomplice must be corroborated,29 but when so corroborated may be sufficient to convict.30 An allegation of ownership may be established by proof of unquestioned possession,31 and nonconsent of one of sevcal parties authorized to permit an entry will support a prima facie case.32 Variance may be harmless if not material to the merits.33 Confessions properly obtained are admissible,34 as are matters going to the res gestae,25 and memoranda made immediately after the crime may be used to refresh the memory of the witness.36 Immaterial testimony is properly excluded,37 and the offer of an improper witness, although not permitted to testify, may be reversible error if tending to prejudice the jury.38 Instructions must accurately define the offense 39 and correctly 40 set forth the law applicable to the case,31 but it is unnecessary to charge on matters rendered immaterial in view of the evidence.42

Under a general indictment for burglary, the court may properly instruct on burglary in the nighttime.43 The verdict need not necessarily name the offense.44 Under a charge of burglary and larency, a verdict may be returned for either.45

Footnote 4: Always begin with the latest article on the subject. Use the latest topical index.

**SS 4**. _Instructions and verdict.44--See 11 C. L. 440_

_Sentence_ See 11 C. L. 441 may depend upon the age of the convict.47 .A sentence for burglary and larency is usually regarded as cumulative.48 Failure to conform to statutory requirements may be fatal.49

**Burnt Records; By-Laws; Calendars, see latest topical index.**

**CANALS.30**

_The scope of this topic is noted below.51_

Footnote 4: Always begin with the latest article on the subject. Use the latest topical index.

It is the duty of the Secretary of War to prescribe such rules and regulations for the use, administration, and navigation of any canal, operated or maintained by the United States, as in his judgment the public necessity may require.52 The right to improve a navigable stream for the purpose of using it as a canal is a right which cannot be acquired without delegated authority from the state.53 A special grant of a franchise for such purpose,54 to a corporation already in existence, is not the creation of a corporation,55 and the transfer of such a franchise to another corporation carries with it the burdens incident thereto in the hands of the first corporation "Damages "7 may be recovered for injuries caused by the construction,"8 or the improvement,"9 or the negligent management "0 of a canal, but a contractor, constructing a canal for a state is not liable for damages caused by the obstruction of a stream which was involved in the state plan,"1 and, on the other hand, a state is not responsible to a third person for the negligence of an independent contractor in the construction of a state canal."9 Under the New York statute providing compensation for lands appropriated for canal purposes, there can be no recovery for remote or consequential damages,"9 nor does the statute of such state, providing that the state shall, in the construction of a canal, assume the same measure of liability incurred by individuals and corporations engaged in similar enterprises, make the state liable for injury to property occasioned by the changing of the grade to a highway to meet the grade of a bridge over a canal."9 Where the state owns the bed of a river and its water, it can abstract the water for canal purposes,"8 but the state cannot by reason of riparian ownership abstract water to the injury of other riparian owners,"6 nor is such right comprehended within the reserve power of the state to improve the navigation of the river."9 Permission to lay a sewer across the right of way of a canal company is not a lease of a portion of such canal."9

Where a canal company has a right of way only upon the abandonment of the land for use as a canal, the use and occupation of the land reverts to the owner of the fee."9

## 1. Nature of Remedy, 592. Adequacy of Remedy at Law, 592. Rellef Obtainle, 505.

able and Conditions Precedent Thereto, 592. Laches and Limitations, 594.

**56.** Validity of Laws 1870, p. 14, granting franchise to corporation to construct canal and locks in the Williamet river, does not depend upon legislative authority to appropriate to the school fund the 10 per cent of the net profits, but such profits can be reached as a burden upon the franchise. State v. Portland General Elec, Co. \[Or.\] 98 P 160.

57. Measure of damages for destruction of bridges passed upon. Town of Lenox v. State, 61 Misc. 28, 114 NYS 174. See Bridges, 5 7. Under Canal Law (Laws 1894, p. 629, c. 338) $ 37, one may prosecute his claim for damages without any other legislative authority. Id.

01. Canal company held liable for injury caused by overflow of mud, sand, and water. Spence v. Lake Drummond Canal Co., 150 N. C. 160; 63 SE 729.

01. Town may recover damages for destruction of bridges caused by widening and deepening ditch used to convey surplus water of canal. Town of Lenox v. State, 61 Misc. 28, 114 NYS 744.

01. Where lands were overflowed by negligent turning of water from state's canal into greek, there being no proof that any damage would have resulted irrespective of negligence of state, state was liable for full amount of damage, though creek was swollen by heavy rains. Carbart v. State, 61 Misc. 13, 114 NYS 544. In action for damages alleged to have been caused by water escaping from canal feeder, evidence with reference to prevalence of heavy rain-

591

## 2. Case of Action and Grounds for Re-

In this section, we will discuss the

## 1 Nature of remedy

11 C. L. 493--Equity has exclusive jurisdiction," independent of statute,73 to cancel a contract.

Footnote 7: Always begin with the latest article on the subject. Use the latest topical index.

\_Adequacy of remedy at law.\_See 11 C. L. 493--Equity will not ordinarily exercise jurisdiction where there exists an adequate remedy at law,74 except where some independent ground of equity jurisdiction exists.75 For the remedy at law to be adequate, it must be equivalent to a complete establishment of the status quo.76 Where there is a subject-matter of equitable cogninance, the existence of an adequate legal remedy does not go to the jurisdiction and must be availed of by timely objection.77 A party may, by bringing an action for damages, waive his right to sue for cancellation.78

Footnote 7: Always begin with the latest article on the subject. Use the latest topical index.

\_Relief obtainable and conditions precedent thereto.\_See 11 C. L. 493--As a general rule, it is a condition precedent to the right to relief that the party seeking the cancellation of an instrument restore or offer to restore everything of value received thereunder.79 Thus, equity will not usually avoid contracts made in good faith for

## 29 G9

Grantees of canal company had no |lef was denied defendant in suit on in-estate in land upon abandonment of land |surance policies, the fraud, alleged by for use as canal. Scholl v. Emerich, 36 Pa. answer, in their procurement being a com-Super, Ct. 404.

70. It treats of the equitable remedy be-tween the parties for the cancellation of contracts and conveyances. It excludes definition and proof of fraud (see Fraudent of (see Fraudent of (and Undue Influence), mistake (see Mislustake and Accident \*), lack of capacity to contract (see Incompetency \*), rescission of contracts other than by bill in equity (see Contracts, * 8; Sales, * 18 10A, 11A), relief against instruments constituting cloud on title (see Quleting Title \*) and conveyances in fraud of creditors (see Fraudulent Conveyances \*). Sufficiency of proof of forgery of signature is treated in Names, Signatures and Seals, * 2.

01. Senech Note: See notes in 14 L. R. A. (N. S.) 204; 9 A. S. R. 859.

See, also, Cancellation of Instruments, Cent. Dig. #S 1-48; Dec. Dig. #S 1-31; 5 Cyc. 285-319.

72. Mahn v. Chicago & M. Elee. R. Co. |Intequery of legal remedy. Spangler v. |Wis. 121 NEV #46. Court of law has no |Yarbrough \[OKL\] 101 P 1107.

Jurisdiction to resend sale contract. River-side Residence Co. v. Husted \[Va.\] 54 SE |Wis. Justice court has no jurisdiction. |C. Mathn v. Chicago & M. Elee. R. Co. |Wis. 121 NEV #48.

73. Cawood v. Howard \[Ky.\] 113 SW 108.

01. Lawlor v. Merritt, 81 Conn. 715, 72 A.

01. Such jurisdiction is not exercised un-less plaintiff allege and show that he will suffer some irreparable injury if equitable relief be denied him. Id. Relief denied where action at law afforded remedy for mere breach of contract complained of. Haydon v. St. Louis & S. F. R. Co. \[Mo.\] 121 NEV #5. Deniled where court of law has already obtained jurisdiction of controversy involving alleged fraud. Btermann v. Guar-any Mut. Life Ins. Co. |Iowa 120 NEV #83.

C. L. 493--As a general rule, it is a condition precedent to the right to relief that the party seeking the cancellation of an instrument restore or offer to restore everything of value received thereunder.79 Thus, equity will not usually avoid contracts made in good faith for

## 30 G9

Grantees of canal company had no |lef was denied defendant in suit on in-estate in land upon abandonment of land |surance policies, the fraud, alleged by |or use as canal. Scholl v. Emerich, 36 Pa. answer, in their procurement being a com-Super, Ct. 404.

70. It treats of the equitable remedy be-tween the parties for the cancellation of contracts and conveyances. It excludes definition and proof of fraud (see Fraudent of (and Undue Influence), mistake (see Mislustake and Accident \*), lack of capacity to contract (see Incompetency \*), rescission of contracts other than by bill in equity (see Contracts, * 8; Sales, * 18 10A, 11A), relief against instruments constituting cloud on title (see Quleting Title \*) and conveyances in fraud of creditors (see Fraudulent Conveyances \*). Sufficiency of proof of forgery of signature is treated in Names, Signatures and Seals, * 2.

01. Senech Note: See notes in 14 L. R. A. (N. S.) 204; 9 A. S. R. 859.

See, also, Cancellation of Instruments, Cent. Dig. #S 1-48; Dec. Dig. #S 1-31; 5 Cyc. 285-319.

72. Mahn v. Chicago & M. Elee. R. Co. |Intequery of legal remedy. Spangler v. |Wis.

the benefit of an incompetent, unless the parties can be restored to their original positions.\[80\] Such offer or restoration has been held not necessary, however, in certain cases, such as where the defendant by his own act has made restoration impossible,\[81\] where the things received \[82\] has no particular value or was not received under the instrument sought to be set aside,\[83\] where it appears that the grantee was guilty of fraud and had knowledge of the incompetency of the grantor,\[84\] where the accounts balance or are in favor of the opposite party and may be equitably adjusted without restoration,\[85\] and where restoration would serve no useful purpose.\[86\] The doctrine of restoration of consideration has peculiar application in respect to rescission of releases, and this aspect is elsewhere treated.\[87\] Rescission of the contract by the complaining party is prerequisite to cancellation in equity, and to such rescission notice to the opposite party is ordinarily essential.\[88\] The court may, in canceling an instrument, order each party to make a complete restoration to the other,\[89\] and may take an account of and adjust all differences between the parties in so far as is necessary in order to place them in a position of status quo,\[90\] and may grant such further relief "1 and administer relief in such way as justice may require." A money judgment may sometimes be awarded in lieu of a return of the property," and in some cases a lieu may be given to secure repayment." When a deed of gift is canceled for improvident conduct of the donor without fault of the donee, the donee is liable only for that which was actually received." If cancellation be de- cered, equity draws to itself the determination of the entire controversy." As a general rule, cancellation will not be granted to the injury of an innocent third party."

\_Laches and limitations.\_See 11 C. L. 495.--It is essential that an action for the cancellation of an instrument be brought within a reasonable time after the discovery of the ground relied on for relief." The statute of limitations does not usually operate to bar an action for the cancellation of a deed, unless there shall have been adverse possession by the grantee." By his misconduct, the defendant may be es- topped to plead laches.1

and rents collected was ordered. Post v. Hagen \[N. J. EG.\] 72 A 834. It was held \[Valley Agricultural Soc., 9 Cal. App. 228, 98\] equitable for decree settings aside deed or \[P 687\].

gift to impose on plaintiff duty of returning to done \[Vdash.\] 100 P 339.

to done \<\<everything he had received from \[Vdash.\] 1010 P 339.

her in pursuance of donor's scheme which he elects to set aside. Id. Donee held not entitled to recover back premiums paid out \[Civ. Code, 9 1691\] is question for trial on insurance polleeds on property taken out in her own name, or charges for collecting \[Vdash.\] 1047.

As to the general doctrine of laches, see \[Vdash.\] 81. Powell v. Powell, 217 Mo. 571, 117 SWP 1118. Quit claim deed was set aside and plaintiff was given benefit of judgments previously obtained by defendant against liconses. Id.

failure of enterprise before determining whether to set aside sale of land made for

veyance made by insane person, court may \[stock in part payment. Romaine v. Excel- set it aside altogether or only sub mode.

Beeson v. Smith, 149 N. C. 142, 65-SE 888.

The court properly canceled stock certification \[Vdash.\] 103

cate without determining rights of existing \[Vdash.\] 104.

readitors of limited ogarnership. Nichola \[Vdash.\] 16 Det. Leg. N. 463, 122 NWP 217.

83. Awarded where property secured through fraud had been conveyed to inno- \[Vdash.\] 7, 9, and 14 years in bringing suit to set cent purchaser. Johnson v. Carter \[Iowa\] 120 NWV 320. Damages may be awarded to

where it does not appear that they acted injured party where other party has made

relief sought impossible. Johnson v. Carter \[Iowa\] 120 NWV 320.

\[Iowa\] 1210 NWV 320.

94. Lien was allowed on property in which \[Vdash.\] 1049. Laches of principal and his devices, money secured under instrument has been \[Vdash.\] 16 Det.

in action to avoid deed to agent. Lancaster invested. Witham v. Walsh \[Mich.\] 16 Det.

v. Springer, 239 Ill. 472, 88 NE 272.

Leg. N. 190, 121 NWV 309. Defendant was \[Vdash.\] 164 meet bar to reflect: Fifteen years after

given lien on premises contracted to be \[Vdash.\] 165.

conveyed. Prindle v. Dewitt Union Free

School Board of Education, 61 Misc. 533, 115 84.

115 States \[Vdash.

## 2 Cause of action and grounds for relief

See 11 C. L. 400.-An instrument will be canceled for fraud," mistake" whether mutual" or unilateral," undue influence," incompetency," duress," want or failure of consideration 10 in some material respect,11 such as failure to furnish support and maintenance as agreed,12 re-pudiation,13 or abandonment.14 Where fraud in the execution of contract is alleged as the ground for its cancellation, it is not essential that such fraud be the sole inducing cause.15 It is important, however, that the fraud shall have existed at the time,of the execution of the contract.16 A contract will not be canceled for misrepresentations which were not relied upon 17 or which were the mere expression

## 3 Case of action and grounds for relief

See 11 C. L. 400.-An instrument will be canceled for fraud," mistake" whether mutual" or unilateral," undue influence," incompetency," duress," want or failure of consideration 10 in some material respect,11 such as failure to furnish support and maintenance as agreed,12 re-pudiation,13 or abandonment.14 Where fraud in the execution of contract is alleged as the ground for its cancellation, it is not essential that such fraud be the sole inducing cause.15 It is important, however, that the fraud shall have existed at the time,of the execution of the contract.16 A contract will not be canceled for misrepresentations which were not relied upon 17 or which were the mere expression

## 4 Case of action and grounds for relief

See 11 C. L. 400.-An instrument will be canceled for fraud," mistake" whether mutual" or unilateral," undue influence," incompetency," duress," want or failure of consideration 10 in some material respect,11 such as failure to furnish support and maintenance as agreed,12 re-pudiation,13 or abandonment.14 Where fraud in the execution of contract is alleged as the ground for its cancellation, it is not essential that such fraud be the sole inducing cause.15 It is important, however, that the fraud shall have existed at the time,of the execution of the contract.16 A contract will not be canceled for misrepresentations which were not relied upon 17 or which were the mere expression

Footnote 13: Cur. Law. CANCELLATION OF INSTHENTS SS 2.

## 5 Case of action and grounds for relief

See 11 C. L. 400.-An instrument will be canceled for fraud," mistake" whether mutual" or unilateral," undue influence," incompetency," duress," want or failure of consideration 10 in some material respect,11 such as failure to furnish support and maintenance as agreed,12 re-pudiation,13 or abandonment.14 Where fraud in the execution of contract is alleged as the ground for its cancellation, it is not essential that such fraud be the sole inducing cause.15 It is important, however, that the fraud shall have existed at the time,of the execution of the contract.16 A contract will not be canceled for misrepresentations which were not relied upon 17 or which were the mere expression

Footnote 13: Cur. Law. CANCELLATION OF INSTHENTS SS 2.

## 6 Case of action and grounds for relief

See 11 C. L. 400.-An instrument will be canceled for fraud," mistake" whether mutual" or unilateral," undue influence," incompetency," duress," want or failure of consideration 10 in some material respect,11 such as failure to furnish support and maintenance as agreed,12 re-pudiation,13 or abandonment.14 Where fraud in the execution of contract is alleged as the ground for its cancellation, it is not essential that such fraud be the sole inducing cause.15 It is important, however, that the fraud shall have existed at the time,of the execution of the contract.

of an opinion,19 or which were made by a third party and were unauthorized.19 It will not be canceled for a mistake curable by reformation 20 for mere breach of contract 21 or of warranty,22 or for the reason that mere tricks of trade were resorted to where the parties dealt at arm's length.23 Nor does the right to secure cancellation exist where the parties are equally culpable,24 where it is essential that the plaintiff plead his own wrong doing as a ground for relief,25 where no appreciable damage is shown,26 where to grant relief is as liable to be wrong as right,27 or where no proper grounds exist and the object sought is the enforcement of a\*papd trust in land.28 A deed of gift may be canceled for fraud of the donee, and in some cases for mere improvroduct conduct of the donor, under the rule of independent advise.29 It has been frequently held, however, that improvroduct conduct alone is insufficient ground for the cancellation of an instrument.30

SS 3. Procedure,31 See 11 C. L. 497 Parties,35 C. L. 497.-A bill to cancel a deed may be maintained by one not in possession of the property.32 The grantor is usually a necessary party to an action to cancel a deed.33 In an action to set aside a deed or will, all tenants in common should be joined as parties plaintiff or defendant.34 Parties having no interest in the litigation need not be joined.35

\_Pleading.\_See 11 C. L. 498.-The complaint should clearly set forth facts sufficient

where parties relied upon their own judgment and were not unduly imposed upon. Crooker v. White \[Ala.\] 50 S 227. 18. Lee v. Hall \[Tex. Civ. App.\] 114 SW 403. 19. Travis v. Taylor \[Ky.\] 118 SW 988. 20. Omission of agreed clause from in-demity bond signed in blank was curable by reformation. Bindesel v. Federal Union Surety Co., 130 App. Div. 775, 115 NYS 447. 21. As where railroad company in consideration of conveyance sought to be set aside agreed to maintain switch and to keep it free from cars, but broke its agreement in the latter particular. Haydon v. St. Louis & S. F. R. Co. \[Mo.\] 121 SW 15. 22. Stock received as consideration failed to pay dividends as represented by defendant. Forster v. Flack \[Vis.\] 121 NW 884. 23. Storth v. Crusoe \[Ark.\] 113 SW 1015. 24. Bonus contract. Farrington v. Stucky \[C. C. A.\] 165 F 325. Farrington v. Stucky \[C. C. A.\] 165 F 325. Though, were it an action to enforce bonus contract, the plaintiff herein, who would then be defendant, might prevail in his defense that such contract was invalid as containing clause that railroad company should not maintain station between two given points. Id. 26. Eichelberger v. Mills Land & Water Co., 9. Cal App. 628, 100 P 117. 27. Proof was insufficient to show fraud which was alleged to have been used in procurement of lease. Gillesp v. Fulton Oil & Gas Co., 236 IL 188, 86 NE 219. 28. O'Brant v. O'Brant \[Ala.\] 49 S 317. 29. Post v. Hagen \[N. J. Eq.\] 72 A 384. Deed was set aside for improvroduct com duct of donor, where done took no part in procurement of deed. Id. Held to be improvroduct conduct, where it appeared that fiducary relation existed between done and donor, that conveyance was of substantially all of donor's property so as to leave donor unprovided for in respect to the future, that conveyance was made with.

to warrant the equitable relief sought," and should show plaintiff's performance of all conditions precedent." Unilateral mistake " and fraud may be sufficiently alleged in general terms " in the absence of a motion to make more specific." Money damages may be awarded without any specific prayer therefor." A plea of ratification may be set up in answer to a petition alleging imposition and fraud, although it also allege insanity." In some cases the defendant may, by a sufficient cross bill," ask for the enforcement of an instrument in a suit for its cancellation." After cancellation has been decreed and an accounting ordered, the defendant will not usually be permitted to set up claims not pleaded prior thereto."

\_Evidence and proof.\_See 11 C. L. "The party seeking cancelation has the burden of proving the fraud or mistake," or other grounds relied on," together with his excuse for any delay in bringing the action," the manner and sufficiency of

**36.** Must allege no consideration if such alleged fraud not being set out. Denlike v. cause relied on. Schindler v. Parzoo \[Or.\]

Santa Clara Valley Agricultural Soc., 9 Cal. 97 P 755. Must allege of what consideration

App. 228, 98 P 687. Bill to set aside stock consisted where fraud in procurement of

pooling receipt which did not state time, contract is relied on, Id. Facts pleaded must

place, and circumstances of its delivery

show case of fraud and mistake, or fraud

parties thereto, or its acceptance without

or mistake, in order to entitle complainant

consideration. Ryan v. Martin, 165 F 765.

to relief on either ground, _Moehlenpah v._

Facts being insufficient. O'Briant v. O'Briant

Mayhew, 138 Wis. 561, 119 NW 826. Where

mental incapacity or insanity of the grantor

is relied upon, it is not necessary to allege

of stock held to be allegation of offer to

fraud and undne influence (Towner v. Moehr v.)

do everything, including delivery of

In-
Towner \[W. Va.\] 64 SE 732), or to state

the consideration of the contract sought to

such transfer. Davis v. Butler, 154 Cal. 628,

be canceled (Schindler v. Parzoo \[Or.\] 97 P 755).

98 P 1047. Should allege offer to return

consideration, where such offer essential.

Schindler v. Parzoo \[Or.\] 97 P 755.

side assignment of claim for fraud. Cox

v. Stillman, 132 App. Div. 433, 116 NYS 931.

Bill was sufficient to secure cancellation of

sustain proof of mistake on one side and

desds, which alleged that deed and will

knowledge thereof on the other. Moehlenpah v. Mayhew, 138 Wis. 561, 119 NW 826.

connection and that tile be vested in

helrs of grantor and testator. Knikel v.

ciently alleged by setting out matters

Spiris \[N. J. Eq.\] 70 A 992. Fraud and un

due influence were sufficiently alleged in

Bill to set aside deed, by the allegation of

sufficient matters to constitute. Reck v.

Reck v.

\[Md.\] 73 A 144. Bill alleging that deedant did not, and did not intend to fulfill

promises for which conveyance sought

to be set aside was given. Ten Mile Coal

& Coke Co. v. Burt, 170 F 332. Allegation

of time of execution of deed, committed of

grantor to asylum, and not admitting his

release therefrom, or lucid intervals, held

sufficient to charge incompetency. Towner v. Towner \[W. Va.\] 64 SE 732. Petition to

rescind contract of sale of electric piano

held sufficient as against general demurrer.

French Piano & Organ Co. v. Garza & Co.

\[Tex. Civ. App.\] 116 SWV 150. It not being

necessary to allege insuveny in action to

set aside conveyance for fraud (Civ. Code,

$ 1689). Shopbell v. Boyd, 9 Cal. App. 136,

98 P 69.

**Complaint held insufficient:** Allegation that mortgage by corporation was illegally

executed by directors because, as election

of such directors, certain stock was voted

by a third party claiming to have authority

from the owner and where it is not alleged

that such third party did not actually have

such authority. Florida Clay Co. v. Yause
598CARRIERS \[IN GENERAL\] $ 1. 13Cur. Law.

such proof varying in no way from the rules applicable in other caess where fraud or mistake is urged.49

Footnote 4: Always begin with the latest article on the subject. Use the latest topical index.

**Canvas of Votes; Capias; Capital; Carlisie Tables, see latest topical index.**

**CARRIERS.**

_The scope of this topic is noted below.50_

Part I. General Principles, 598. 8 16. Care Required of Carrier, 671. 8 17. Delivery, 674. 8 18. Ethallity of Carrier or Connecting Carrier, 674. 8 19. Limitation of Liability, 674. 8. Duty to Undertake and Provide Carrier, 600. Duty to Furnish Cars, 601. 8 21. Damages, 674. 8. Charges, 602. The Interstate Connere Commission, 603, Enforcement of Established Rates and Action in Respect Thereto, 620. 8 23. Duty to Receive and Carry Passengers, 672. 8. Remedies, Criminal Liability, Prosecution and Punishment, 626. 8 24. Rates and Fares, Tickets and Special Contracts, 679. 8 3. Counceting Carriers, Draymen and Transfermen, 633. 8. 8.

such transportation merely as incidental to another business, with the exception of passenger elevators,\[58\] is not usually regarded as such.\[54\] It is not necessary that he own the means of transportation,\[65\] and he may limit his business to a particular class of commodities.\[66\] Public draymen,\[67\] truckmen,\[58\] and parcel delivery companies,\[59\] are usually held to be common carriers, but mere "forwarders" are not.\[60\]

SS 2. \_Public duty, control and regulation. A. In general,\[61\]-\[58\] 11 C. L. 600_Common carriers are engaged in a semi-public service and hence cannot so contract with private persons as to incapacitate themselves in the discharge of the duties owed to the public.\[62\] In the discharge of such duties they are subject to public control\[63\] and a valid regulation may be enforced by reasonable penalties.\[64\] Such public control, however, must be exercised within constitutional limitations.\[65\] The

ment, held a common carrier. Union Stock- \[179, 209; 42 Id. 110; 67 Id. 637; 5 L. R. A. yards Co. of Omaha v. U. S. \[C. C. A.\] 169 F \[N. S.\] 1069; 14 Id. 292; 16 Id. 914.

404. Company doing switching for fixed charges, paid sometimes by shipper and 97; Dec. Dig. $ 1-11, 14-38; 6 Cyc. 265-271, sometimes by other roads, held common carrier. Kansas City So. R. Co. v. Rosebrook-Josey Grain Co. \[Tex. Civ. App.\] 114 SW7 436.

001. Stelskal v. Marshall Field & Co., 142 111. App. 154.

001. Amusement company maintaining extensive grounds and a ferry thereto merely as a part of its general scheme held not a common carrier. Melsen v. Detroit, etc., Ferry Co., 154 Mich. 545, 15 Det. Leg. N. 826, 118 NW 14. Lumber company operating engine and cars in connection with its business for transportation of number and employees held not a common carrier (Self v. Adel Lumber Co. \[Ga. App.\] 64 SE 112), especially where it does not own rolling stock (Tenaerer & Co. v. Chicago, etc., R. Co. \[C. C. A.\] 170 F 240), and a contract between it and the railroad company relative to the same is not a contract between connecting carriers (Id.). Evidence held to make question for jury whether defendant was an ordinary commercial carrier or a logging road. Campbell v. Duluth & N. E. R. Co., 107 Minn. 358, 120 NW 375.

001. Stockyard company maintaining short lines connecting with other roads and engines to haul such cars as may be rendered held a common carrier though owning no cars. United States v. Sivour City Stock Yards Co., 162 F 556.

001. Common carrier by water, not a public institution, can limit its carriage to such commodities as it wishes. Ocean Steambship Co. v. Sivananh Locomotive Works & Supply Co., 131 Ga. 831, 63 SE 577.

001. Benson v. Oregon Short Line R. Co. \[Utah\] 99 F 1072.

001. Heyman v. Stryker, 116 NYS 638.

001. Johnson Exp. Co. v. Chicago, 136 Ill. App. 368.

001. Where for 22 years defendant had acted as a forwarder and not as a carrier for plaintiff, mere fact that the special contract was not delivered in particular instance held not to change character of relation. Barasch v. Richards, 113 NYS 1005. Company's designation of its business as a "forwarder and distributor" held to setup it from asserting that it was a forwarder only. Lee v. Fidelity Storage & Transfer Co., 51 Wash. 208, 98 P 658.

001. Search Note: See notes in 33 L. R. A.

600 CARRIERS \[IN GENERAL\] $ 2B. 13 Cur. Law.

particular body seeking to exercise control must act within its constitutional powers, \[66\] and, generally speaking, the federal government can only act through its power to regulate interstate commerce. \[67\]

(SS 2) \_B. Duty to undertake and provide carriage. \[68\]--See 11 C. L. 690--The general common-law duty to accept and carry all goods tendered, unless of a prohibited character, \[69\] has been supplemented in many states by statutory enactments \[70\] and by rules and regulations of commissioners. \[71\] Under the North Carolina statute, a carrier refusing to accept \[72\] without a legal excuse \[73\] a shipment tendered \[74\] at a regular depot during business hours \[75\] is liable to a per diem penalty for each day

atlantic companies are exempt therefrom. \[tion thereof may be compelled by man-Patt v. United Surcy Co., 61 Mines 445, 116\] damus (fd.), which is not a taking of pur-NYS 844: Denvera v. U. S. Surcy Co., 115

vate property for private use without due NYES 199. Constitution should be so con-process of law (Id.). Where carrier and stirred as to preserve and make effective subperper have agreed upon what is "reasonable provision," court will adopt same un-Cost Line R. Co. \[F14\], 47 S 965. \[the\] $ 20,60. Cast, art. 16, $ 30, declaring that the \[f\]. Where neither the declaration in suit to recover penalty for violation of rule 3 pass laws for the correction of abuses and of commissioners in refusing to accept or prevention discrimination, etc., held not a great or implication of power but an express

tached there gives destination or states recognition of power. State v. Florida East

To Coast R. Co. \[F14\] $ 43. Under Const. \[the\], $ 18 (Bunn's Ed.), corporation com-

mission has power to require establishment and maintenance of flag station. Atchison, etc., H. Co. v. State (Col.): 101 p 16. See. \[the\], $ 222, giving commission power to require

"such public service facilities and con-

ventiones as may be reasonable and just,"

means everything incident to the general report, safe, and important performance of

the duties of common carrier (Chicago, etc., R. Co. v. State (Col.): 99 P 30), but does

not require such facilities as will overcome

natural disadvantages of location, etc. Id.

#: "Commodities clause of interstate

commerce act, making it unlawful for rail-

roads to transport certain commodities if

owned by them, held not a regulation of

interstate commerce and unconstitutional as

to companies that had acquired and develop-

oped coal mines at great expense prior to

its enactment. United States v. Delaware

& H. R. Co., 164 F 215. \[the\] $ 68. Search Note: See notes In S. C. 1592;

1 L. R. Co. 1935; 5 L. R. A. (N. S.): 783;

6 14. 834; 710. 1088; 111. 697; 12. 164. \[the\] $ 16. 15 Id. 108; 16 Id. 651. \[the\] $ 20. 158. \[the\] $ 69. In receiving prohibited goods, serv.

ants of carrier must exercise same kind of

judament as if doing business for them:

selves, and where they would so acquire

knowledge carrier is charged therewith.

Adams Exp. Co. v. Comm. 33 K. L. R. 967;

112 SWY 571. \[the\] $ 2631, providing a pen-

alty for refusal to accept freight for trans-

portation, is not unconstitutional as applied

to interactate shipments as an interference

therewith. Reid v. Southern R. Co., 149

N. C. 423, $ 215; 16. \[N. C.\] $ 2574;

parrison. V. Southern R. Co., 160 N. C. 682 874;

parrison. V. Southern R. Co., 161 N. C. 682 874;

64 SE 678. What will constitute "reason-

able provision" within Code 1966, $ 2864, for

transportation of coal, held to depend upon

facts and circumstances of the case (State

general tender. Cox v. Atlantic Coast Line V. White Oak R. Co., 65 W. Va. 15, 64 SE

R. Co., 148 N. C. 459, 62 SE 556. \[the\] $20), and where it requires a side track

75. Garrison v. Southern R. Co., 150 N. C. 675, 64 SE 578.

7.8. Sufficient exeuse: Where it is impost-

be because of conditions for which it is not

responsible to carry tendered shipment.

R. Co. v. State (Col.): 99 P 30), but does

4 SE 578. Mottive power tied up by strike.

Murphy Hardware Co. v. Southern R * 13Cur. Law. CARRIERS \[IN GENERAL\] SS 2B.

it so refuses to accept 76 to the party aggrieved,77 provided the tender is kept good.78 Since, however, the carrier is entitled to two days at initial point within which to make the shipment, it may refuse a tender for immediate shipment.79 It is no defense to a suit for the penalty that the shipper suffered no pecuniary loss.80 A carrier merely having trackage rights over the road of another need not act as a carrier over such line.81 Carriers may be compelled to furnish reasonable connecting service 82 and adequate train facilities,83 and especially are they bound to discharge the duties imposed by their enabling act.84

_Duty to furnish cars.85e 11 C. L. 801_--Carriers rest under a general common-law duty to furnish cars upon proper demand,85 but many states have re-enforced the obligation by special statutes 86 enforcible in prescribed manner.87 These statutes frequently prescribe the kind of cars to be furnished and the equipment thereof.88

76Where shipper was permitted to load of branch line. Delaware, L. & W. R. Co. lumber on car and demanded a bill of lading therefor which was refused, but car 498. Constitution of Kentucky, SS 213, re-was finally transported after repeated re-quests, held that there was a refusal to own cars to any point where there is a ship on each day from time of loading un-ill final shipment. Garrison v. Southern K. Co., 150 N. C. 675, 64 SE 578.

77. "Party aggrieved" held not to include attorney who had attached goods in action against real owner (McRackal v. Atlantic Coast Line R. Co., 150 N. C. 331, 63 SE 1042), nor can such attorney maintain action for benefit of attaching creditor, since action must, under the statute, be prosecected in the name of the real party in interest (Id.).

- "Owner of freight is proper party to use and not intended consignee. Reid v. Southern R. Co., 149 N. C. 423, 63 SE 112.

78. Wampum Cotton Millis v. Carolina & N. W. R. Co., 150 N. C. 608, 64 SE 586. Where goods which have been tendered and refused are left on platform, a mere inquiry as to when they would be shipped held to make question of tender for jury. Id.

01. On train being loaded at time of ten-der. Cox v. Atlantic Coast Line R. Co., 148 N. C. 459, 62 SE 556.

01. Reid v. Southern R. Co., 150 N. C. 753, 64 SE 874.

01. Where carrier who contgaced for trackage over another road agreed not to do business at intermediate points, the railroad commissioners had no authority under Rev. St. 1895, art. 4580, subd. 2, as amended by Acts 1992, p. 183, c. 117, to capped said road to stop at intermediate points, especially where service appeared ample. State v. Trinity & B. V. R. Co. \[Tex Civ. App.\] 120 - SWP 1123.

01. Provision of interstate commence act that requirement that all railroads shall provide reasonable facilities for interchange of traffic shall not require one carrier to give use of its track or terminal facilities to another is not a substantive enactment but a rule of interpretation. Pittsburgh, etc., R. Co. v. Hunt \[Ind.\] 86 NE 328. Intermediate commerce act requiring carriers in certain cases to construct connections with branch lines on application of shipper, and providing that if carrier falls to install such connections "on application therefor in writing by any shipper" complaint may be made to commission, etc., does not authorize complaint on refusal of application 609CARRIERS \[IN GENERAL\] $ 2C. 13Cur. Law. (SS 2) \_C. Charges.\_80--See 11 C. L. 601--Subject to constitutional restrictions,90 such as the inhibition against taking property without due process of law,91 denying equal protection of the laws,92 etc., the states may establish reasonable rates 89 and prescribe penalties for any deviation: therefrom.94 Where the statute, under which a corporation carrier organizes, prescribes rates, it is bound thereby without regard to their reasonableness.95 The reasonableness of a rate is ultimately a judicial question,96 and, where a statute attempts to make the rate conclusive,97 imposes 87. Laws 1907, p. 311, c. 90, will not in 1873, p. 504, No. 198, $ 9, relating to max-every instance afford adequate remedy to "mum freight rates for cariod lots, held a shipper unlawfully refused sufficient cars" evored by subsequent amendments. Robin-by an appeal to the commission (State v. \[Mich.\] 15 Det. Leg. N. 711, Chicago & N. W. R. Co. \[Neb.\] 110 NW 161). Laws 1907, p. 73, c. 61, amend. and district court has jurisdiction to comm-ing and re-enacting Rev. Codes 1905, $ 4335, peel carrier to furnish same by mandamus (Id.).

Footnote 95: The author is grateful to the author.

Footnote 96: All rates established are subject to judicial inquiry as to justness and reasonableness.

Footnote 97: The author is grateful to the author.

Footnote 98: The author is grateful to the author.

Footnote 99: The author is grateful to the author.

13 Cur. Law. CARRIERS \[IN GENERAL\] $ 20.

onerous conditions upon an appeal to the courts,"# or prescribes penalties so excessive as to prevent redress therein,"99 it is invalid. A carrier is entitled to a reasonable return upon its investment,1 unless it is unreasonable in its expenditures.2 In determining what are reasonable rates, all facts and circumstances having a legitimate bearing upon the matter may be considered.3 Among the facts thus proper to be considered are the existence of a large surplus under existing rates,4 the effect of the change upon the revenues of the company,5 differences in the nature of commodities,6 evidence of unlawful' combinations,7 the fact that the rates are the out-

ableness. Milsourl, K. & T. R. Co. v. Inter-state Commerce Commission, 164 F 645.

**07. Law, making decision of legislative**

604CARRIERS \[IN GENERAL\] $ 2C. 13Cur. Law.

growth of actual conditions and gradual development," the fact that the rate was the result of conference and understanding among carriers," agreements between shipper 'and carrier,10 and the amount shipped; 11 but other facts, such as the division of rates accepted by the carrier,12 the value of the commodity,13 comparative earnings per ton per mile,14 increases in cost of labor, materials, and decrease in net earnings,15 the existence of a lower rate on another line,16 or the voluntary re-

New Jersey group, to certain New England used as evidence of admission as between points. Cement moves to same points under plausible commodity rate from all mills value, that rate agreed upon is reasonable. Within radius of two groups. Held that complained's contention that potatoes (C. 15.

with. for that reason, to enjoy one rate, viz. 14-cent rate, from all points within slitle to or no bearing on question of reason-same radius is without merit, and complaint is therefore dismissed. Id.

**7.** While evidence of unlawful combinations is always admissible as part of history of rate of which complaint is made, and may often throw light upon question of its reasonableness, unlawful combination, standing by itself, without proof also of unreasonableness of rate, is not sufficient ground for order reducing rate. Mayor & Aldermen of Bristol V. Virginia & S. W. R. Co., 15 C. C. 453.

**8.** The complainant alleges exaction by defendants of unreasonable class rates from Indianapolis to Ohio River points and to Chicago, respectively, as compared with rates between Chicago and Ohio River.

More fact that there is greater percentage disparity between rates on two classes from Indianapolis than on two other classes, or that disparity greater in one case than in another exists between corresponding classes from Indianapolis and Chicago, does not afford just or proper basis or reason for rearrangement of rates and disturbance of conditions, commercial and otherwise, throughout large territory when it is manid-fest that established system is outgrowth of actual conditions and result of gradual development. No showing has been made that present rates are unreasonable or unlawful in and of themselves, or that they yield to carriers exorbitant earnings for transportation service. This prayer of petittion is denied. Indianapolis Freight Buena V. Cleveland, etc., R. Co., 15 I. C. C. 504.

**9.** Fact that advance was result of conference and understanding between car-riers is entitled to be duly considered in connection with other circumstances and conditions bearing upon reasonableness of the rates under consideration, but this fact of itself does not of necessity establish unreasonableness of such rates. Chicago

In conformment, the author & Coal Co. v. Tioga S. W. R. Co., 16 I. C. C. 333.

**10.** Because delivering carrier sees fit to patent state that it will protect rate made by its competitor, but fails to do so, commissioning cannot hold that such lower rate is necessary. It will take some other evidence in order to justify commissioning.

**11.** While amount shipped by concern has asking rate unreasonable than mere statement two years ago of one of connecting carriers that it will protect rate made by one of its competitors. De Camp

Bros. v. Southern R. Co., 16 I. C. C. 144.

Agreement between carrier and shipper for issuance of a tariff may be regarded and of carrier or preclude possibility even of
13 Cur. Law. CARRIERS \[IN GENERAL\] SS 2C. 605

duction of a rate,17 and methods of issuing stocks and certificates in past or whether for value, are not entitled to consideration or weight and are not conclusive of the unreasonableness of a rate.18 Besides these general matters of fact which may be considered, there are, however, certain general rules which may often be alone deterministic of the question. Thus through rates will seldom 19 be permitted to exceed the sum of the locals,20 and, where a rate has been long established and capital

increase in its net earnings, due to increase in volume of its traffic or to decrease in stock which was originally issued without ratio of its operating expenses to its oper- money consideration. Id.

ating revenues; nor is increase in cost of 13. Unreasonableness of through rate labor and materials, accompanied by de- upon interstate shipment via given route censoring in net revenues of carrier, necessity, by mere comparison therewith of net earnings may still suffice to afford it lower aggregate of rates consisting of 10-fair return on investment without increase in its rate schedules. Shippers' & Receive- state rate based upon junction through early Bureau V. New York, O. & W. R. Co., which carriers have no joint route and no basis of division. Marble Fails Insulator idea that lower rate in effect via one line than via another line is conclusive evidence - pounds upon lumber, in carloads, from War.

of unreasonableness of higher rate. A. Hence the unreasonable, because it exceeded combina-C. 49. Charge of 14 cents per 100 pounds for carload of corn from Cella, Ohio, to York, where it appeared that for reasons Johnston, Pa., held not unreasonable stated complainant could not have taken merely because lower rate is in effect because of combination of local charges, except at expense as great or greater v. Lake Erie & W. R. Co., 15 I. C. C. 107.

Rate of 32.6 cents per 100 pounds for yel-low pine from Lake Charles, La., to R1 P. Paso, Tex., distance of 1,067 miles over two lines, cannot be found unreasonable because single line has published rate on such commodity between same points of 23

sion again insists on principle that in ab-cents per 100 pounds, carrying it distance of 972 miles, even though defendants subsequent for competitive reasons reduced their rate to 25 cents per 100 pounds. Repe-aration denied and complaint dismissed. Grand Rapids & L. R. Co., 15 I. C. C. 6; Michigan Buygy Co. v. Menefee Lumber Co., Texas & P. R. Co., 15 I. C. C. 49. Carrier with long route is 894.

not obliged as matter of law to meet rate of short-line competitor, neither is carried via long route obliged as matter of law to reduce its rate because its short-line com- or, while combination of local rates based upon kansas City amounted to only 18 via both routes. Commercial Co. V.

Seitmore & O. R. Co., 15 I. C. C. 11.

37. Voluntary reduction of rate does not rate applicable to grape baskets from Tra-carry with it conclusive presumption that verse City, Mich., to Montrose, Iowa, to prior rate was unreasonable, Commercial Coa. v. Baltimore & O. R. Co., 15 I. C. C. 11.

01. Certificates issued against ore lands

formerly owned by Great Northern Railway

Kalb, Ill., to Olivia and Hutchinson, Minn. Company can not be properly considered in

determining what are reasonable earnings

16 I. C. C. 447. Shipment of machinery from for that company at present day. City of Allegheny, Pa., to Victoria Mines, Ontario, Sepokane v. Northern Pacific R. Co., 15 I. C. C. 477. Rate for gasoline pany has in past distributed its stock's in

in catalogs from Reno, Pa., to Mitton June-sues among its stockholders at par from

time to time, although market value of

etc., R. Co., 16 I. C. C. 401. Shipment of stock was often much above par. Without

building paper from St. Joseph, Mich., to expressing any opinion upon legality or

Wusasau, Wils., because sixth class rate, propriety of this practice, it is held that

higher than combination of local rates, was

this fact, at this time, can have no bearing

charged after such class rate had been can-upon earnings to which that company is

celed. Barrett Mfg. Co. v. Graham & Mor- entitled. Id. Neither can capital stock or

ton Transp. Co., 16 I. C. C. 399. Rate on Great Northern Railway Company be re-

buckwheat from Cattarausus, N. Y., to duced for purpose of determining what its

Janesville, Wils. Elodgett Milling Co. v.

has been invested and industries established in reliance thereon, the rate will not be discontinued without taking into account the effect upon commercial and industrial conditions,\[21\] though this does not require the indefinite continuance of the rate unless it is just and reasonable under all the circumstances.\[22\] It is not necessary, however, that the rate on each particular commodity should allow a profit from

Chicago, etc., R. Co., 16 I. C. C. 384. Rate \[fendants' lines, via Chicago, one going to of 74 cents per 100 pounds on shipment of Woodford and the other to Argyle, Wis. oilwell supplies and pipe from Fishers, Ind., Lindsay v. Grand Rapids & L. R. Co., 15 I to Bartleville, Okl., should not have ex-

C. C. 182. Rates of $1.49 per 100 pounds, needed 58% cents per 100 pounds. Glichrist applied by defendants on shipments of steel v. Lake Erle & W. W. C., 16 I. C. 318.

Lanks, L. C. L., from Goshen, Ind., to Bulli-

Express rates from New York City to Boise and other points in southern Idaho held in

Shore & M. So. R. Co., 15 I. C. C. 284. As

almost every instance to violate general

defendant carriers have right to increase

principle that through rate shall not exceed

lower combination of locals between same points. Boise Commercial Club v. Adams

except sum of local rates could, by such in-

Exp. Co., 17 I. C. C. 115. Rate on bran from

crease in local rates, be made ineffective.

Salima, Kan., to Hugo, Okl. Le-Warren

Specific rate prescribed. Michigan Buygy

Milling Co. v. Chicago, etc., R. Co., 16 I. C. C. 41.

Co. v. Grand Rapids & L. R. Co., 15 I. C. C. 422. Rate of 23% cents for carloads of

297. Rates from north to Monroe cannot

stack chimney brick from Brazil, Ind., to

reasonably exceed in any instance combining-

Minnesota Transfer, Minn. Alphons Custodins Champv Const. Co. V. Vandalia R. Co.,

ever may make lower. Monroe Progressive

16 I. C. C. 600. Rates for transportation of

leilers (under 10 feet in length) and parts

534. Rate of 29 cents per 100 pounds on

from Kalamazoo, Mich., to Blue Monales

shipment of vehicles from Lawrenceburg,

and Mount Horeb, Wis. Lindsay Bros. v.

Ind., to Milwaukee, Wis., should not have

Grand Rapids & L. R. Co., 16 I. C. C. 41.

extended 25% cents per 100 pounds. Lind-

With respect to shipment of machinery

say v. Baltimore, etc., R. Co., 15 I. C. C. 6.

from Hopkins, Minn., to Abhyville, Kan.

21. Green Bay Business Men's Asr'n v.

Minneapolis Threshing Mach. Co. v. Chi-

Baltimore & O. R. Co., 15 I. C. C. 59.

cago, etc., R. Co., 14 I. C. C. 536. Shipment

22. Green Bay Business Men's Asr'n v.

of grain products from Kansas City, Mo.,

Baltimore & O. R. Co., 15 I. C. C. 59. There

to Howard, Wis. Wilson v. Chicago, etc.,

is no such thing as contract between rail-

R. Co., 14 I. C. C. 549. Changes from differ-

way and shipper that certain rate shall be

ent Florida points to Pottsville, Pa., where

charged, for railway rate is matter of pub-

rates applicable to this traffic exceeded

lic concern, which cannot ordinarily be

combination of locals upon Reading, Pa., by

made subject of private contract, but in

5 cents per box. Since shipments in ques-

terming what is just and reasonable thing

tion defendants have increased rate from

points of origin to Reading by 8.8 cents

effect upon all parties. Blue Valley Cream-

per box, thus making combination of locals

55 Co. v. Michigan Cent. R. Co., 15 I. C. C. 3.2 cents greater than through rate.

held
109\. When it is remembered that value of

that through joint rates at time of ship-

ice when taken up for transportation is al-

ments were unjust and unreasonable to ex

tent that they exceeded combination of

to their physical capacity, on average more

locals upon Reading, Pa. Sylvester v. Penn-

than 27 tons, it will be seen that to few if

syivania R. Co., 14 I. C. C. 573. Carloads of

any kinds of business should lower rates

may shipped by complainment from Portland,

be applied by defendants; and this is

Or., to Auburn, Wash. over defendants' line

peculiarly true in view of fact that business

at rate of 14 cents per 100 pounds in accordance with its duly published tariffs

much lower rates, voluntarily established

while combination of locals upon Tacoms

and long maintained by defendants, and

or Seattle is 13 cents per 100 pounds,

that investment so induced must be largely

Hardenberg v. Northern Pac. R. Co, 14 I.

destroy its handling, although separate and distinct charges must be separately considered,24 as must interstate and intrastate business as respecting the rates on either.25 Where expensive branches are built primarily as feeders for interstate business, the carrier is not entitled to such rate on intrastate business as will allow full return for such investment.26 The fact that a rate is unreasonable and confiscatory as to one carrier does not invalidate it as to others.27 The power to establish rates is usually lodged in the legislature,28 although it may be invested in appropriate, inferior bodies,29 especially nonlegislative powers.30 In many states, the commissioners, etc., are only empowered to prescribe or alter rates upon proper complaint.31 In all cases, however, a duly established and published rate is the legal rate,32 is presumed to be reasonable,33 and must be conformed to; but such publication cannot render a rate immune from attack as unreasonable and excessive.34

porting same, yields a fair profit upon investment. State v. Northern Pac. R. Co. \[N. D.\] 120 NNV 869. In attacking single rate, carrier need not show that carrier cannot under the schedule prescribed earn a fair return on its investment. Gulf, etc., R. Co. v. Railroad Commission \[Tex.\] 113 SWV 741.

24 Where separate terminal charge of $2 for transportation to stockyards is reasonable in itself, commission cannot reduce it on ground that it renders rate from point of shipment to stockyards excessive. Stickle-ney V. Interstate Commerce Com., 164 F 638.

25 St. Louis & S. F. R. Co. v. Hadjley, 168 F 317. In determining reasonableness of intrastate rates, as applied to railroads doing intrastate and interstate business, difference in cost in handling each kind of business as related to earnings from each should be taken into account. In re Arkansas R. Rates, 163 F 141; St. Louis & S. F. R. Co. v. Hadjley, 168 F 317.

26 In re Arkansas R. Rates, 168 F 720.

27 St. Louis & S. F. R. Co. v. Hadjley, 168 F 317.

28 Under Const. $ 142, legislature held to have power to prescribe a reasonable maximum rate. State v. Northern Pac. R. Co. \[N. D.\] 120 NNV 869.

29 See topic Commerce. Const. art. 12, SS 18, providing that legislative shall pass laws fixing reasonable maximum rates, is merely declaratory of the common-law power to $6 Mx rates, and does not prevent a delegation of the power to a commission. State v. Railroad Com. \[Wash.\] 100 P 184.

30 Power conferred on public service commission to prescribe rates in legislative rather than judicial merely because it prescribes rule for future conduct. People v. Wilcox, 194 N. Y. 383, 87 NE 517.

31 Railroad commission held without power to change rates on commodities where no complaint has been made in respect thereto, and no hearing has been had thereon. State v. Railroad Com. \[Wash.\] 100 P 987. Kentucky railroad commission is not given, by Act of March 10, 1900, power to make a general schedule of maximum rates for transportation of all commodities, upon all railroads, to and from all points within state, upon a general complaint that all rates are too high, or upon like information of the commission itself, as the power of such commission is limited to
The Interstate Commerce CommissionSee 11 C. L. 504. Under the act to regulate commerce as amended, the Interstate Commerce Commission is given very complete and comprehensive powers to fix, determine the reasonableness, and order reparation for unreasonable rates,58 allowances,39 storage,37 track,38 demurrage,39

ments, If it be excessive and unreasonable in amount. Id.

38. It is duty of commission to establish just and reasonable rates available for all shippers alike without discrimination in favor of any shipper by reason of agree.

rates or has any real relation to rates. Id.

That held reasonable: Local rate between Hudson Co., 17 I. C. C. 15. Reparation will

Louisville, Ky., and New Albany, Ind., here

be awarded in accordance with findings

complined of Railroad Commission of upon proper proof of shipments. Id. Commission, in passing upon reasonableness or

R. Co., 14 L C. C. 563. Rates from eastern unreasonableness of rate, acts as admins-

terriutory to Green Bay, Wis., may properly

tative body having quasi judicial functions; when it determines what rate should

be higher than Chicago scale. Basis now in

have been and shall be in future, it exercise

Cago, not found unlawful. Green Bay Business certain legislative functions; when it

ness Men's As'n v. Baltimore & Q. R. Co.,

computes damages or reparation due shipper by reason of enforcement and collece-

fields on line of Frisco in Oklahoma to

tion of rate unreasonable to extent that it

points on Cotton Belt in Texas is through

exceeds rate which is declared to be re-

their junction at Sherman. Complinant's

sonable, there is mere mathematical deter-

Hour milli at Celina is 28 miles south of

mination of damages shipper should receive. Sherman; hail of its wheat to Celina and

Reparation or damages, therefore, in all

of its flour back to Sherman therefore in-

matters which concern rates, are reduced,

after commission has determined what re-

get benefit of through milling-in-transit

sonable rate should have been, to simplicity

of mathematical calculation; elements of

fendants cannot be required to perform the

conjecture, speculation, and inference are

actively eliminated. In matters of discrimination, however, of undie preference, prejud-

line service are not unreasonable. Celina

dice, or disadvantage, different field is en-

Milli & Elevator Co. v. St. Louis S. W. R.

tered, where services of jury may be

Co., 15 I. C. C. 138. Class and commodity

necessary, not only by reason of seventh

rates to Santa Rosa, N. M., over defenant

amendment to constitution, but by very na-

railways, from Chicago, Kansas City, St.

ture of subject-matter itself. It may be

Louis, and Memphis, in and of themselves

proper, and commission has no considered

and when compared with through rates

in many instances to award money dam-

from same points of origin to EI Paso,

ages in cases of kind just described, and

such awards have been compiled with by

R. Co., 16 I. C. C. 550. Compliant al-

carriers, but proofs to support such awards

sides that class proportional rates to

should be very clear and exact; they should

Ohio River crossings, generally applica-

be free from surmise and conjecture.

ble on traffic destined to southeastern ter-

Washer Grain Co. v. Missouri Pac. R. Co.,

titory on specific articles mentioned, are

15 I. C. C. 147. Defendants issue certificates

eliminated by publication of higher com-

for actual weight of grain shipments going

modity proportional rates, and asks that

into their elevators at Baltimore, and on

these latter be canceled in order that lower

that weight assess their transportation and

clear vcharges; but each certificate shows

under circumstances of this case order

on its face "scleage deduction" that will

be made, on basis of published tariff est-

Freight Bureau v. Cleveland, etc., R. Co.,

mates, when grain is delivered out of ele-

15 I. C. C. 367. Percentage of Chicago

vator to certificate holder. Upon complaint

that these deductions are arbitrary and

constitute illegal appropriation of property

and money of complainants' members and

others who ship grain to Baltimore, held

that defendants by this practice are not

eracting from grain shipper ather rate in

for gram or addition to rate, and therefore

theories question presented is not one of rates.

R. Co., 17 I. C. C. 128. In case of commodi-

Baltimore Chamber of Commerce v. Penn-

tides except 5, present rate from Chicago to

sylvania R. Co., 15 I. C. C. 341. Neither is

Seattle is established as reasonable local

practice one affecting rates, as tariff rules

rate from St. Paul to Spokane. Upon 5 ar-

are simply notice that while shipment

veighed so much when taken into elevator

Rates on all these commodities from Ch-

grain will weigh so much less when it goes

out, because of weight of dirt, dust, chaff.

and moisture, which, in process of elevator

of course, would require that the material is not

not to be confused with the material.

## 18 Cur. Law. CARRIES \[in GENERAL\] $ 2C.

orangees from Florida base points to terri-

and Waterloo, Iowa. Lagomarcino-Grupe story north of Ohio River ought not to be

Co. v. Illinois Cent. R. Co., 16 L. C. C. 151.

higher on average than from California:

Rates for apples via defendants' lines from

establishment of blanket rate applies-

Ozark fruit region in Arkansas and Mibble to that territory is not justified. Florota:

sourt to St. Louis and Kansas City, Mo., and

da. Fruit & Vegetable Shippers' Protective

Ass'n v. Atlantic C. L. R. Co., 14 L. C. C. 476.

Georgia, Florida, Alabama, Mississippi, and

Express charges on small packages shipped

from St. Paul, Minn., to Courtens, N. D.,

St. Louis & S. F. R. Co., 16 L. C. 134. De-

held governed by Kindel v. Adams Exp. Co.,

13 I. C. C. 476, in which it was held that

rates on small packages were made in competition with United States mall rates.

City of Spokane v. Northern Pac. R. Co., 15

I. C. C. 376. Rates on small packages

shipped from New York, N. Y., to Courtens,

way, N. D. Sanford v. Western Exp. Co.,

16 I. C. C. 32. Rate of 37% cents per 100 pounds for agricultural implements in car-

Ioads, from Minneapolis, Minn., to New

Polits in Kansas to Memphis, Tenn., and

York, N. Y., when for export. Minneapolis

apolls Threshing Mach. Co. v. Chicago,

Cummical Club v. Chicago, etc., R. Co., 15

etc, R. Co., 16 I. C. C. 193. Rate of 92

cents per 100 pounds for unerated auto-

Oklahoma to Kansas City, Mo. Southern

mobile from Beatrice, Neb., to Kenosha,

VVis. Whitcomb v. Chicago & N. W. R. Co.,

18 I. C. C. 27. Rates for transportation of

and one-half times first class rates for

warlap bags from New York to Chicago and

rapid roller tetiper coples in Western Classi-

other points in Central Freight Association

fication territory. Yawman & Erbe Mfg.

territory. Neither can commission, under

Co. v. Atchison, etc., R. Co., 16 I. C. C. 260.

peculiar circumstances of case, take action

Complaints manufacture yellow-pine lum-

condemming relation between rates upon

snel brulp bags and upon burlaps. Percy

and ship it over defendants' lines to mar-

Kent Co. v. New York Cent. & H. R. Co.,

15 I. C. C. 439.

Cenal rates from Pittsburg, Kan., and

certain Colorado points, to various points in

Oklahoma. State of Oklahoma v. Atchison,

etc, R. Co., 14 I. C. C. 516. Rate of $1.90

pounds on number originating in complain-

per net ton for bituminous coal from Grant-

ton, W. Va., via Willow Creek, Ind., to

Kalamazoo, Mich., 640 miles, though de-

and there were material reductions in some

fendants subsequently for competitive reasons

sons reduced rate to $1.85 per ton, as car-

as unreasonable and discriminatory.' Held

riers may voluntarily make rates lower

that rates were not unreasonable per se

than they may lawfully be required to

make. Commercial Coal Co. v. Baltimore

- O. R. Co., 15 I. C. C. 11. Compared to

present adjustment. Chicago Lumber &

soft coal mined in west, summing coal is

different commodity with different charac-

323. Carload rates on manufactured pro-

teristics and of different value. Whether it

mets of gypsum rock from Grand Rapids,

may move under special sampling coal rate

Mich., to all points in Official and Southern

is not here determined. but there are no

Classification territory, state of Wisconsin,

grounds shown for disturbing rates on

and that part of Illinois which is in West-

smithing coal from Chicago, IL, to Portales,

N. M. Sligo Iron Stove Co. v. Atchison, etc.,

Paster Co. v. Lake Shore & M. S. R. Co.,

R. Co., 17 I. C. C. 139. Rate of 39 cents per

100 pounds on ses-ismand cotton from Alac-

chus to Savannah when shipped over the

Searboard Air Line. Burr v. Seaboard A. L. R. Co., 16 I. C. C. 1

Fruit All-rail rates on oranges and pine-

apples from shipping points in Florida to

Florida base points. Florida Fruit & Vegetable Shippers' Protective AsS'n v. Atlantic

Cosat Line R. Co., 14 I. C. C. 476. Rail and

Water rates on these commodities between

such points not found unreasonable, and

commission declines to establish carload

rates by rail and wazer. Id. Rate of 82

cents per 100 pounds for transportation of

bananas in carloads from New Orleans. La.,

to El
Andrews, S. C. to New York, N. Y. Voor-

Hann., to extent that it exceeded defendness v. Atlantic Coast Line R. Co., 16 L. C.

ant's rate of 15 cents per 100 pounds, ap-

C. 45. Rates on wainul vener from Kan-

sals City to Chicago and Chicago points at

time of filing complaint were 65 cents in

any quantity, but shortly before hearing

they were reduced to 27 cents, C. L., and

45 cents, L. C. L. Upon complaint that

present rates are still excessive, held that,

considering value of article and manner in

which it is manufactured, present rates

ought not to be pronounced excessive.

Reparation will be awarded upon basis of

rates here established in further proceedings,

ings, if necessary. Penrod Walnut & Ye-

neer Co. v. Chicago, B. & Q. R. Co., 15 L. C.

C. 326.

Rate held unreasonable, rate established,

and reparation ordered. Nollenberger v.

Missouri Pac. R. Co., 15 I. C. C. 595; Inter-

state Iron & Steel Co. v. Chicago, etc., R. Co., 15 L. C. 480.

C. 15 L. C. 277. Class rate. Reasonable

commodity rate voluntarily established by

carriers. Monarch Milling Co. v. Chicago,

etc., R. Co., 17 I. C. C. 1. Reparation

agrett to Milwaukee, Mils,

awarded in case No. 1,828 for $2,509.74 and

interest. Nye-Schneider-Fowler Grain Co.

v. Union Pac. R. Co., 15 L. C. C. 90. Reparna-

tion awarded In case No. 1,775 for $1,560.79

and interest. Id. Reparation awarded In

case No. 1,642 for $688.28 and interest. Id.

transformation would have been reasonable

Reparation awarded in case No. 1,655 for

and lawful v. Wisconsin Pearl. Button

$6,742.10 and interest. Id. Reparation

C. v. Chicago, etc., R. Co., 16 L. C. 50.

awarded in case No. 1,644 for $1,013.71 and

present rate of 40 cents per ton from mines

interest. Id. Commission declines to put

in eralead rates on boats and shoes between

for points upon Santa Fe. should not for

Boston and Des Moines, because those artif-

distance exceed 25 cents. Santa Fe should,

cles generally move In less than carload

by proper tariff provision, apply to this

quantities and there is no evidence in

coal when received from Colorado & South-

ord warranting introduction of new unit

ern at Trinidad rate of 10 cents per ton

of transportation as to those commodities.

less than local Trinidad rate. Cedar Hill

Bentley & Olmsted Co. v. Lake Shore & M.

Coal & Coke Co. v. Atchison, etc., R. Co., 15

S. R. Co., 17 I. C. C. 56.

R. Co., 17 I. C. 78. Rates for binuminous and

between Phoenix, Mesa, and Tempe, Arka,

and specified points in California, Arizona,

Minn., and Superior, Wis., to St. Paul and

New Mexico, Colorado, and Kansas. Marl-

come County Commercial Club v. Wells

Pace. R. Co., 17 I. C. C. 95. Rates assessed

Fargo & Co., 16 I. C. C. 182. Proportional

on shipments of soft coal from Wellston,

rates on through traffic te Des Moines,

Ohlo, to Manitowowe, Wis., for points beyond.

Iowa, ordered reduced. Greater Des Moines

Sunderland Bros. Co. v. Pere Marquette R.

Committee v. Chicago, etc., R. Co., 17 I. C. C. 450. Rate of $5.20 per ton

C. 54. Class rates from Chicago and from

on soft coal from Sterling, Ill., to Pwasas,

St. Louis to Denver. Kindel v. New York,

Web. Rate of $2.70 per ton prescribed.

etc., R. Co., 15 L. C. 55. Class rates from

Sunderland Bros. Co. v. Chicago & N. W. R.

Missouri River to Denver and from Denver

Co., 16 L. C. 212. Rate charged from

to Utah common points. Id. First class

Focsonates (VA), district to Winston-Salem

rate from Chicago to Des Moines. Greater

on soft coal in carloads 'is unreasonable

Des Moines Committee v. Chicago, etc., R. Co., 17 I. C. C. 57. Class rates from St. Paul

that charge to Durham is unreasonable to

and Chicago to Spokane and commodity rates

agent that it exceeds $2.20 per ton. WTh-

upon 34 enumerated articles. Class rates

ston-Salem and Winston City Board of

are established from St. Paul to Spokane

Trade v. Norfolk & W. R. Co., 16 L. C. 18.

which are 16 - 2- per cent less than those

Plant rate 15 Cur. Law. CARRIERS \[IN GENERAL\] $ 8C.

Davis Co. v. St. Louis, etc., R. Co., 15 I. C.

Tex., to Kansas City and Chicago, respectively, ought not to have exceeded present on cotton from Mafshall, Tex., to East St.

commodity rates of 51 cents per 100 pounds Louis, Ill., as part of through rate to Biddede-ford, Me., to extent that it exceeded 60

Godffrey v. Texas, A. & L. R. Co., 15 I. C. C. C.

eets per 100 pounds. Perpercell Mfg. Co. v. Texas So. R. Co., 16 I. C. C. 353. Reason-

from new point of production moved under class-rates. Carrier thereafter established

port, La., to Leon, Kan., routed via Sherman, commodity rates from that point, which

Tex., prespercell and reparation awarded.

were adjusted with relation to other pro-

Stock Yards Cotton & Linseed Mesal Co. v. St. Louis S. W. R. Co., 14 I. C. C. 530. Repa-

ducing points similarly situated, and which

vere resigned to provide for further move-

ration for unreasonable charges onments. Reparation awarded upon basis of

loads of cotton seed shipped from Kill-

the commodity rates thus established.

bourne, La., to Pine Bluff, Ark., on basis of

Hutcheson & Co. v. Central of Georgia R.

subsequent lower rate voluntarily estab-

Co., 16 I. C. C. 535. Reparation allowed

with respect to shipment of peaches from

R. Co., 16 I. C. C. 296.

Dairy products: Present rates for trans-

portation of cheese from various stations

in state of Wisconsin, named in report

Henin, to Chicago, Ill. Railroad Comms-

man and Billings, Mont., of $1.32 and $1.371$

son of Wisconsin v. Chicago & N. W. R.

per 100 pounds, respectively, and $1.10 per

Co., 16 I. C. C. 85. Rates for transportation

of cream to Chicago between Detroit and

For Huron upon east and Colorado

Contracts for apples via defendants' lines from

mon points upon west. Defendants ordered

to establish scale of rates prescribed as

and Texas. Ozarik Fruit Growers' Asa'n v.

maximum. Blue Valley Creamery Co. v.

St. Louis & S. F. R. Co., 16 I. C. C. 134.

Chielnian Cent. R. Co., 15 I. C. C. 109.

Purniture Rate of 171% cents per 100

plainant shipped carload of eggs from Les-

pounds for transportation of chairs, in car-

lie, Ark., to Chicago, Ill. Defendants' rate,

ads, from Grafton, Wils., to Chicago, Ill.,

as applied to this traffic, was (third class)

to extent that it exceeds 15 cents per 100

$1.10 per 100 pounds. Subsequent to shipment in question, defendants established

1908, and subsequent to September 1, 1908,

special commodity rate of 77% cents per

Milwaukee Falls Chair Co. v. Chicago, etc.,

100 pounds on butter, eggs, dressed pol-

tr, from Leslie to Chicago. Held that rate

Grain and flour: Rate for corn in car-

applied was unjust and unreasonable.

10ads of 19 cents per 100 pounds from Hum-

Smith & Co. v. Missouri & N. A. R. Co., 15

hold, Neb, to St. Francis, Kan., and of 18

L. C. C. 448. Reparation awarded to com-

cents per 100 pounds from Pawnee, Neb.,

plaints for excessive amount collected on

to St. Francis and Atwood, Kan., and max-

their shipment of emigrant outfits, plus

imum of 13.6 cents per 100 pounds pre-

whatever amount was collected by sale for

seribed. Cooper v. Chicago, B. & G. R. Co.,

demurrage or warehousing. Porter v. St. Louis S. F. R. Co., 15 I. C. C. 324.

15 I. C. C. 524. In view of former practice

Louis & S. F. R. Co., 15 I. C. C. 1. The

through rate on wheat from Idaho Falls,

Pecos & Northern Texas Railway Company

Idaho, to McKinney, Tex., held applicable,

required to keep in force for at least two

year's local rate which now results in com-

ston's tariff department, to earload ship-

bination rate of 41 cents per 100 pounds on

emigrant outfits from Fletcher to Bovina,

1907, from Wooley's Spur, intermediate

Id. Rates on fertiliser from Shreveport,

point from which no specific through rate

La., to certain Arkansas destinations, and

had been published. Reparation is awarded

reasonable maximum rates prescribed. Vir-

ginia-Carolina Chemical Co. v. St. Louis S.

Line R. Co., 15 I. C. C. 228. Rate of 26%

W. R. Co., 16 I. C. C. 49. Fertilizer is low-

cents terests at Phoenix were unfavorably affected by that decision, and in this proceeding relationship of rates on wheat and flown from Belpre, Pawnee Rock, and Hutchinson, Kan., to Phoenix, Arriz, is brought in issue. Held that rate on wheat from said Kansas points to Phoenix, Arriz, should not exceed $1 per 100 pounds, and that rate on flour from same points to same destination should not exceed rate on wheat by more than 12 per cent. Order in Howard Mills case modified accordingly. Valley Flour Mills v. Atchison, etc., R. Co., 16 I. C. C. 305. Perfectands voluntarily reduced their rate on snapped corn from Okemah, Okl, to Terrell, Tex. Within period of statute of limitations, but fifteen months after rate was reduced, complaint was filed asking reparation on shipment moving under higher rate. Defendants were never asked to make informal adjustment, and when formal complaint was filed, were willing to satisfy same without formal hearing. Held that complainant is entitled to reparation for difference between reduced rate and rate charged as applied to weight of shipment, but under peculiar facts, reduced rate should be maintained for period of not less than two years from date it became effective. Tully Grain Co. v. Fort Smith & W. R. Co., 16 I. C. C. 28. Rate of $1.40 per 100 pounds of rice in carloads from New Orleans, LA., to Billings, Mont., to extent that it exceeded $1.07 per 100 pounds. Stone-Orden-Vells Co. v. Chicago, B. & Q. R. Co., 16 I. C. C. 30. Rate of 18% cents per 100 pounds formerly applied on carload shipments of - malt from Chilton, Wis., to Kansas City, Mo., and present rate of 10 cents per 100 pounds held reasonable. Chilton Mailing Co. v. Chicago, etc., R. Co., 16 I. C. C. 563. 16 I. C. C. 10. Class rates charged for hay from Kansas City, Mo., to Mississippi River points and points east. These rates ought not to have exceeded proportional commodity rates. North Bros. v. Chicago, etc., R. Co., 15 I. C. C. 70. Class rate charged by principal defendant for carload of laled hay originating at Batesville, Kan., from Kansas City, Mo., to Clinton, Ohio. Tyler Commission Co. v. Chicago, etc., R. Co., 16 I. C. C. 490. On June 30, 1907, class C rates became effective on hay from Kansas City to Mississippi River, Peoria, St. Paul, Chicago, and common points, because of cancellation on that date of proportional commodity rates that had been in force between those points on hay coming from points beyond Kansas City. Shortly thereafter later rates were restored. During interval complainant made shipments to points in Illinois, Iowa, and Minnesota. Held that rates charged were excessive, and that complainant is entitled to reparation on basis of proportional rates. Kansas City Hay Co. v. Chicago, etc., R. Co., 16 I. C. C. 100. Complainant shipped from Kansas City City, Mo., to Seymour, Iowa, via defendants' railway. carload of hay upon which it was compelled to pay class rate of 13% cents per 100 pounds. This was 1 cent higher than proportional commodity rate which had been in effect between points in question until short time prior to date of shipment and was restored within about sixty days thereafter by amendment to defendants' tariffs. Held that, under admission of defendant, and upon commission's knowled edge of hay rates in same territory, class rate was excessive and unreasonable, and should not have exceeded commodity rate, Arkansas Fuel Co. v. Chicago, etc., R. Co., 16 I. C. C. 95. Rates on natural lee from points of harvest in New Jersey and Penn. sylvania to various consuming interstate destinations and maximum rates prescribed when the ice is carried in ordinary box cars. Mountain Ice Co. & Trout Lake Ice Co. v. Erie R. Co., 15 I. C. C. 305. Service rendered by defendants in movement of traffic may properly be styled "special" service; but it is not in any proper sense "expelled" service. Id.

& Northwestern Railway, should not exceed providing for compromise settlement of 75 per cent of beef-cattle rate. Shimmer v., these claims, it appearing that same con-chicago, etc., R. Co., 14 I. C. C. 525. De-fendants' tariff, applicable to transportation of cattle from Anaconda, Mont., to and satisfaction thereof, in so far as it re-Tacema, Wash., names rate of $110 per 36%-foot car. Complainant ordered 36%-foot equipment, but two of cars furnished were only 34 feet in length. Since shipment defendants' tariff has been amended so as to provide that when cars less than 36 feet in length are furnished for carriers' convenience, reduction of 3% per cent per foot will be made from rates applicable to cars not exceeding $0% feet in length. Held that tariff prior to amendment as indicated was unreasonable. Carstens Packing Co. v. Northern Pac. R. Co., 14' I. C. C. 577. Preparation all-s shipments of range cattle from Mid-land, Tex., to Kennebec, S. D., under conditions obtaining at time, to extent of 9% 1. C. C. 539; Hayden & Westcott Lumber Co. cents per 100 pounds, and as excess was collected by principal defendant for its portion of transportation, reparation is awarded against that carrier. Philip v. Chicago, etc., R. Co., 16 I. C. C. 418. Reparation awarded 'complinant against initial carrier for excessive charges on shipments of cattle from Ontario, Or., and Nampa, Idaho, to Tacoma, Wash., on account of unnecessary diversion in transit #Crected without knowledge or consent of shippers. Carstens Packing Co. v. Oregon R. & Nav. Co., 15 I. C. C. 482. De-fendants' tariff, applicable to transportation of cattle from Anaconda, Mont., to Tacoma, Wash., names rate of $110 per 36%-foot car. Complainant shipped 2 carloads of cattle between these points, but the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff has been amended so as to provide that when cars less than 36 feet in length are furnished for carriers' convenience reduction of 3% per 36%-foot car. Complainant shipped 2 carloads of cattle between these points, but the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff has been amended so as to provide that when cars less than 36 feet in length are furnished for carriers' convenience reduction of 3% per 36%-foot car. Complainant shipped 2 carloads of cattle between these points, but the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff has been amended so as to provide that when cars less than 36 feet in length are furnished for carriers' convenience reduction of 3% per 36%-foot car. Complainant shipped 2 carloads of cattle between these points, but the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge. Since 'missing complaint defendants' tariff, the cars furnished were only 34 feet in length, which resulted in an excess charge.

Minnneapolis, St. Paul & Sault Ste. Marie \[Haulway companies ordered to establish and maintain through routes and joint rates on number and other forest products between 100 pounds. Hafey v. St. Louis & S. F. \[Haulway companies ordered to establish and maintain through routes and joint rates on number and other forest products between 100 pounds. Hafey v. St. Louis & S. F. \[Haulway companies ordered to establish and maintain between 100 pounds. Hafey v. St. Louis & S. F. \[Haulway companies ordered to establish and maintain between 100 pounds.

loads from East Branch, N. Y., to Wee-hawken, N. J., 150 miles, and $140 per net net then prescribed as maximum for future. ShFlippers/ & Receivers' Bureau v. New York, O. & W. R. Co., 15 I. C. C. 264. Rates on furnace limestone from Bunker Hill, W. Va., to various points in Ohio and Pennsylvania west of Pittsburgh, to extent that they exceed increase of 5 cents per ton over and above rate from Martinsburg, W. Va. & Reduction ordered. Baker v. Cumberland Valley R. Co., 14 I. C. C. 568. Defendants' rates on phosphate rock shipped from Mount Pleasant and Centreurlity districts in Tennessee to fertilize manufactories at cities located in Illinois-Indians, Ohio, Michigan, New York, and Pennsylvania, via Ohio River crossings, and reductions in such rates ordered. Darling & Co. v. Baltimore & O. R. Co., 15 I. C. C. 79. Rate applied to carloads of marble from Long Island City, N. Y., to Shipman, Va., of 54 cents per 100 pounds, and rate of 22 cents per 100 pounds found reasonable. Cohen & Co. v. Southern R. Co., 16 I. C. C. 177. Through fifth class rate of 38 cents per 100 pounds formerly applied by defendants on carload shipments of stoves from Minneapolis, Minn., via Chicago, to Fremont, Ohio, reparation awarded on basis of present through commodity rate of 29% cents per 100 pounds. Hartman Fur-niture & Carpet Co. v. Wisconsin Cent. R. Co., 15 I. C. C. 530. Through class rate of 74% cents per 100 pounds for sugar from Eaton, Colo., to Decatur, Ill., to extent that it exceeded subsequently established joint through rate of 32% cents per 100 pounds. Havemeyer v. Union Pac. R. Co., 17 I. C. C. 13. Charges exacted on carload of beet sugar shipped in May, 1988, from Las Animals, Colo., to Romero, Tex. American Beet Sugar Co. v. Chicago, etc., R. Co., 16 I. C. C. 258. Defendants' class rate for carloads of sulphoxide acid from Howe, Ill., to Atena, Ind. Mineral Point Zinc Co. v. Wabash R. Co., 16 I. C. C. 440. Preparation awarded for unreasonable charges collected on a shipment of tan bark from Trenary, Mich., to Milwaukee, Wis. Albert Trostel v. Minneapolis, etc., R. Co., 16 I. C. C. 548.

Vehicles: Class rate of 73 cents per 100 pounds on mixed carload of burggles and wagons from East St. Louis, Ill., to Beebe, Ark., ought not to have exceeded commodity rate of 39 cents per 100 pounds presently to be established by defendant. Parlin & Orendorf Co. v. St. Louis, etc., R. Co., 15 I. C. C. 145.

Veregables: Present rail and water rates on vegetables from Florida base points to northeastern cities. Whether lower carload rates should be established upon vegetables to eastern markets, query. Florida Fruit & Vegetable Shippers' Protective Asg? n. Atlantic Coast Line R. Co., 14 I. C. C. 476. Combination through rate of 31% cents per 100 pounds formerly applied on carload shipments of vegetables from Green Bay, Wis., to Pattonsburg, Mo., and reparation carried at rate of 63 cents per half-barrel crate. V. Chicago, etc., R. Co., 15 I. C. C. 45.

Washington: The Ohio River Crossing, Inc., 15 I.

refrigeraticn,\[40\] switching,\[41\] reconsignment,\[42\] change of destination,\[43\] and other charges.\[44\] The Interstate Commerce Commission ray.also determine the rate schedule or tariff applicable,\[45\] and the reasonableness\[48\] and applicability of classifications.\[47\] In connection with these powers, the commission has power to order sonable; but there is, however, no such reasonable charge. Memphis Prepint Bu-showing in record in this case. Id. 40. Charges held reasonable: Refrigerata changes on fruits and vegetables from Louisville destined to New Albany, or Florida to northern markets. Traffic Bureau, Merchants' Exch. v. Chicago, B. & Q. R. Co., 14 I. C. C. 510. Rates for refrigerators. 40.11.1.

- \[13\] Cur. Law. CARRIERS \[IN GENERAL\] $ 2C.

reparation in cases of overcharge erroneously or illegally collected," in case of in-because of their tendency to uniformity and stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 30.

- \[14\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 30.

- \[15\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 31.

- \[16\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[17\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[18\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[19\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[20\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[21\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[22\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[23\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[24\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[25\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[26\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 32.

- \[27\] Serivania and New Jersey. Naylor & Co. v. stability. It is only in cases where it clearly appears that inclusion of given article in class results in unreasonable charges, and lower classification will not meet demands of justice, commodity rates are required to be established. Acme Cement Plaster Co. v. Lake Shore & M. R. Co., 17 I. C. C. 3 618 CAPRIERS \[IN GENERAL\] $ 8C. 13 Cur. Law.

creased charges due to carrier's inability to furnish a car of the size ordered by the shipper,\[49\] in case of misclassification resulting in increased charge,\[50\] in case of mis-routing resulting in increased charges,\[61\] where carrier and not shipper is at fault,\[42\]

Co., 16 L C. C. 458. For unreasonable rates

consition of unreasonable freight charge on charged on less than railroad shipments of

shipment of corn from Bates, Ill., to Detroit,

metallic cartridges and loaded paper shells

Mich. Beggs v. Wabash R. Co., 16 I. C. C.

from Kings Mills, Ohio, to Muncle, Ind.,

lease of typographical error in tariff sheet

able freight charge on a shipment of lumber

which has subsequently been corrected.

Joseph A. Goddard Co. v. Cleveland, etc.,

Pa. American Lumber & Mfg. Co. v. South-

R. Co., 16 I. C. C. 289. For overcharges

acted on shipments of elevator guides from

50. Rate for transportation of cotton lint-

Chicago, Ill., to Portland, Or. Otis Eleviator

ers from Meridian, Miss., to New Orleans"for

Co. v. Chicago G. W. R. Co., 16 I. C. C. 502.

export, value limited to 2 cents per pound, is

For excessive charge erroneously collected
30 cents per 100 pounds; when not so limited

by defendant on 1 earriad of shingles

rate is 46 cents per 100 pounds, this being

shipped from Lake City, Ark., to spring-

fend, Mo. Ketch Mfg. Co. v. St. Louis &

g, F. R. Co., 15 I. C. C. 230. On account of

dered 150 bales of cotton linters to defend

earth's agent at Meridian for transportation

weight on shipment of coal from Williams,

Oklt, to Kansas City, Mo. Katabarar v.

lowest rate on cotton linters. Defendant

Atchison, etc.): R. Co., 14 I. C. C. 528. Defendants collected from compliant

toning application of 46-cent rate and ask-

cents per 100 pounds on 60,000 pounds of

rise for reparation, held that it was duty

wheat shipped in carf of $5,000 pounds' maximum capacity from Kansas City, Kan., to

lower of two rates, and that reparation

Galveston, Tex., for export, and thus collected on 5,000 pounds more than maximum

basis. Salamon Bros. & Co. v. New Orleans

loading capacity of car. Held that this was

unreasonable charge. Rosenbaum Grain Co.

S1. Commission declines to modify its ad-

v. Missouri, K. & T. R. Co., 16 I. C. C. 499.

ministrative rulings numbered 60, 70, and

49. Carriad rate and minimum weight for

83, in regard to misrouting and liability

car of definite dimensions when lawfully

preferred, under pleasings in this case; but

published in tariffs of carrier constitute

if there is any modification of these rulings

open offer to shipping public to move their

methodange on those terms, and it would

will entertain any suggestion that carriers

be wholly unsound In principle to permit

may make without formality of compliant,

carrier to impose additional transportation

v Woodward, Louisville & N. T. Co., 15 I.

charges on shipper who ordered car of a

capacity, length, or dimension specified in

**Reparation awarded:** Hille v. Missouri, K.

its tariffs, simply because it is not provided

with cars of dimensions ordered. Kaye &

Carter Lumber Co. v. Minnesota & I. R. Co.,

16 I. C. C. 285.

**Reparation denied:** On shipments of sheep

from points in California to Tacoma, Wash.,

because single-deck cars were furnished in-

stead of double-deck cars ordered. Car-

stens Packing Co. v. Southern Pac. Co., 17

1. C. C. 6.

**Reparation awarded:** Because of excess

weight charged on shipment of wagons,

where 2 cars of smaller size but of larger

aggregate minimum weight were furnished

instead of one car of smaller minimum

weight ordered, which would have held

Wagons. Racine-Sattley Co. v. Chicago, etc.,

t. Co., 16 I. C. C. 458. Obligation to carry

directed at published rate of $3.45 per gross

merchandise of shippers on basis of pub-

lished rates and minimum weights, and to

use whatever cars are available for that

purpose, ought to have been covered in pub-

plant asking damages for excess charged

lished tariffs of defendants by proper rule

caused by such misrouting, held that this

to that effect, and their tariffs were unreasonable and unlawful in not containing such

ages for diversion of shipments under such

provision at time these shipments were

made. Kaye & Carter Lumber Co. v. Min-

be awarded damages. Woodward v. Louis-

nesota & L. R. Co., 16 I. C. C. 285. On account of

routing of certain shipments of wheat from

charges on but reparation will not be ordered in certain cases where the carrier has voluntarily reduced a rate not per se unreasonable before complaint \[83\], or the commission has reduced the rate before claim for reparation has been made \[54\], or where the shipper has been negligently deprived of an unlawful privilege or rate \[68\], or the subject-

33% cents, and were sent by more expensive route. McCaull-Dinsmore Co. v. Chliosare Co. v. Chliosare doe G. W. R. Co., 14 I. C. C. 527. On facts itself made such reduction, and where it shown of record, held that defendant alone does not clearly appear that rate was at some in question through junction carrying higher rate than was available through another junction, and must therefore bear entire burden of mistake, and that connect- ing carriers participating in movement, being without fault in premises, cannot be required to join In payment of damages to which complaint is entitled. Washington Broom A. Woodenwarne Co. v. Chliosare, etc., R. Co., 15 I. C. C. 519. Where record discloses that while defendants transported shipment over lines named by complaint, they did not route or carry it via cheapest reasonable route available over lines of carriers specified in shipping bill. If shipment had moved over Frisco Line from Kansas City to Popular Bluf through Springfield, Mo., rather than through St. Louis, lower rate than one collected would have been available. Duluth Log Co., Minnesota & I. R. Co., 15 I. C. C. 627.

52 Shlper held at fault. Preston v. Chesapekae & O. R. Co., 16 I. C. C. 565.

Complainant alleges that Its shipment of poles over lines of defendants from La Porte, Min., to Popular Bluf, Mo., should have moved to St. Louis without passing through Kansas City, but it appeared that representative of complplainant directed that routing. Held that it was duty of the initial carrier to obey specific routing instructions furnished by complainant. When shippper names carriers that are to transport his shipment, it must be assumed that he is relying upon his own investigations, and that for some reason he considers it expedent that shipment move over route indicated by him: Duluth Log Co. v. Min.nesota & I. R. Co., 15 I. C. C. 627. Complainant specifically directed that shipment of live stock be forwarded via certain route in order that he might have advantage of trying market so reached. Shipment moved in accordance with his directions. He now claims reparation on ground that lower rate applied via another and more direct route than one which he selected, but via which he could not have reached market which he desired to try. Complain dismissed. Cousil v. St. Louis & S. F. R. Co., 16 I. C. C. 188.

53. Often wide divergence of opinion exists as to reasonableness of specific rate between certain points, and any policy pursued by this commission tending to make it burdensome to carriers to reduce rates would ultimately work hardship to shipping public. For these reasons it would appear unwise for this commission to adopt policy by which, upon voluntary reduction of rate, shipper who had previously paid higher rate should recover as damages whatever difference there might be between rate which he was compelled to pay and rate newly established by railroad, where application had not been mhde, either to matter of the contract has been destroyed in transit without the carrier's fault and the shipper thus deprived of the right to claim a privilege subsequently accruing,56 nor will reparation be awarded against a shipper in favor of a carrier in case of undercharge.57

\_Enforcement of established rates and actions in respect thereto._See 11 C. L. 100_

Since the Interstate Commerce Commission has been given jurisdiction in the first instance to determine the reasonableness of an interstate rate, it has been held that the courts have no power to enjoin the enforcement of rates until it has acted thereon,58 especially the state courts,59 although a distinction has been made between enjoining the enforcement of an established rate and the restraining of the establishment of a rate by the railroads.60 But in any case an injunction should issue only in the absence of other adequate remedy 61 and upon a clear showing of the unreasonableness of the rates,62 and where no inequity will result.63 Where established rates have proven confiscatory,64 a temporary injunction may issue

reconsigned had misrouting not occurred. | 60. Under Interstate Commerce Act exince provision theretor was not filed with pressly reserving all legal remedies, circuit commission. Kille & Morgan Co. v. Deep-

court of United States has jurisdiction to water H. Co., 15 I. C. C. 235. Because car-

enjoin railroad companies from dling and rier has ceased to grant unpublished -privi-

enforcing schedules alleged to be unjust lege, which amounted to nothing less than

and unreasonable, pending investigation by departure from legal tariff, and that transit

commission, a proper showing being made.

privileges cannot be given retroactive

fect. National Lumber Co. v. San Pedro,

her Mitrs. \[C. C. A.\] 165 F 1. After a new

etc., R. Co., 15 I. C. C. 434. Complaint

interstate rate has been duly established

claims reparation in these two cases for

higher charge collected on shipments of

enjoin the enforcement of same until compoles from Washburn, Wis., to Winside,

Neb., and from Northome, Minn., to James,

Great Northern R. Co. v. Kalispell Lumber

Iowa, because actual weight at destination

was greater than that named in bill of

lading. Record shows that weight upon

which rates were finally assessed was correct weight, and complaints as to this matter should be dismissed, but order issued

for admitted overcharge on Northome shipments. Duluth Log Co. v. Chicago, etc., R.

Co., 16 I. C. C. 38.

50. Complaintant shipped 125 bales of cotton from Lawton, Okl., to Chickasha, Okl.,

for concentration and subsequent reshipment. Defendants' tariffs provided that on

reshipment from the concentration point

the through rate from point of origin to

final destination would be protected. Consignment was destroyed by fire while standing upon the platform of the compress at

Chickasha. Complaint seeking refund of

the local charges collected for the movement from Lawton to Chickasha dismissed.

Anderson, Clayton & Co. v. St. Louis & S. F. R. Co., 17 I. C. C. 12.

57. Commission is without authority to

order shipper to make good undercharge,

but shippers must understand their liability

under law for failure or refusal to pay pub-

lished rates. Falk & Co. v. Chicago, etc.,

R. Co., 18 I. C. C. 269.

58. Atlantic Coast Line R. Co. v. Macon

Grocery Co. \[C. C. A.\] 166 F 206, rvs. Id.

163 F 738.

50. State court is without jurisdiction to

temporarily enjoin putting into effect of

increase in freight rates on interstate traff

fic, pending a determination by Interstate

Commerce Commission of the question of

reasonableness of the proposed rate. Ohio

Dairy Co. v. Luke Shore & M. S. R. Co., 7 Ohio N. P. (Nr S.) 451.

45.

Although its office is usually to preserve a status quo. \[95\] Upon granting an injunction to a carrier, the court may restrict the rates to be charged as a condition thereof, \[96\] or it may leave the carrier untrammeled. \[97\] An injunction should not issue where it is probable that a practical test will be necessary to determine the reasonableness of the rates. \[98\] Where a federal court having jurisdiction of the subject and of the parties \[99\] has found a state statute establishing rates void and still retains jurisdiction, it may restrain state officials from attempting to enforce the same. \[90\] In the absence of statute a court has only power to determine whether a particular rate is reasonable or confiscatory and cannot prescribe another rate, \[71\] and it is doubtful if such power can be conferred. \[72\] A statutory method for the review of the orders of commissioners is usually prescribed \[98\] and must be followed. \[99\] In the absence thereof, the usual and appropriate procedure is to enjoin the members of the commission from enforcing a confiscatory order. \[99\] The federal courts may set aside an order of the Interstate Commerce Commission resulting from a misapplication or misconception of law. \[90\]

thorize temporary injunction. In re Arkansas R. Rates, 163 F 141.

- 65. In re Arkansas R. Rates, 163 F 141.
- 66. Where upon enjoining prescribed rates pendente life as confiscatory, railroad immediately returned to three-cent passenger rate and raised freight rate from 50 to 200 per cent, held that freight advancement was extortionate, and court could limit advancement as condition to retaining injunction. In re Arkansas R. Rates, 168 F 720.
- 67. Issuing of preliminary injunction re-straining the enforcement of freight rates prescribed by Arkansas R Railroad Commission and two-cent passenger rate imposed by Act Ark. Feb. 5th, 1907, (Acts 1907, p. 10), held to leave no limitation as to freight rates and to allow return to three-cent rate. In re Arkansas R. Rates, 168 F 720.
- 68. Railroad Com. of Alabama v. Central of Georgia R. Co. \[C. C. A.\] 170 F 225.
- 69. Federal court of district of which complaints are inhabitants has jurisdiction of suit to enjoin several railroads, members of association, from putting into effect alleged illegal rates on food commodities shipped in interstate commerce within the territory of district, although roads are citizens of another state. Macon Gregory Co. v. Atlantic Coast Line R. Co., 163 F 736.
- 70. May on supplemental bill enjoin circuit attorney of state from prosecuting suit in state court to restrain railroads from charging more than statutory rates. Missouri Pac. R. Co. v. Jones, 170 F 124.
- 71. Gulf. etc., R. Co. v. Railroad Com. \[Tex.\] 116 SW7 795.
- 72. Pub. Acts 1907, p. 433. $ 26, No. 453. empowering courts to determine whether rates fixed are unreasonable or confiscatory, but no authority to ascertain what rate would be reasonable, held not unconstitutional as conferring jurisdiction to fix rates (Michigan Cent. R. Co. v. Murphy \[Mich.\] 16 Det. Neg. N. 168, 120 NW 1073), and even if such provision is unconstitutional, the other provisions of the act are not thereby rendered invalid (\[71\],).
- 73. Under Acts 1907, p. 469, e. 241, $ 6, 632

CARRERS \[IN GENERAL\] $ 2D. 13 Cur. Law.

(SS 2) \_D. Discriminations and preferences.\_17--See 11 C. L. 690--At common law,_18_ under the Elkins act and its amendments_79 \_and under the constitution and statutes of many states,\_80 \_a carrier must not unjustly_81 \_discriminate between commodities,\_82 \_persons,\_83 \_or localities,\_84 \_but must serve all alike who apply under substantially similar conditions.\_85 \_The prohibition applies not only to rates,\_86 \_but to facilities,\_87 _and thus in case of a car shortage such cars as are available must be_

13 Cur. Law. CARRIERS \[IN GENERAL\] SS 2D. 623

equitably pro rated \*\* without unjust discrimination.\*\* What constitutes an unjust and unreasonable discrimination is a question of fact,\*\* into which, however, the existence of substantially dissimilar, natural,**19** and competitive conditions necesportation and it is no defense that it does P 72. Fact that company permitted private not own portion of cars operated over its elevator to be constructed on its right of line. United States v. Baltimore & O. R. way does not render its refusal to conCo. \[C. C. A.\] 165 F 113. Rule 36 of Rail: struct at its own expense a sidetrack to road Commission, relating to equal facilities, held not violated by refusal to issue discrimination within Conat. art. 9, SS 18 through bills of lading or to furnish its cars to connecting carriers, Augusta Brokerage Co. v. Central of Georgia R. Co., 5 G. Azp. 187, 62 SE 936. Word "transportation" as used in Act June 29th, 1986, 6. 3591, 8 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amending Interstate Commerce Act, includes all kinds of instrumentalities of shipment. United States v. Baltimore & O. R. Co. \[C. C. A.\] 165 F 113.

**88. Shipper is only entitled to his proporting of cars apportioned to his station. State v. Chicago & N. W. R. Co. \[Neb.\] 120** and varying conditions, and therefore rates NPV 165. While mine owner is entitled to dis individual private cars, such cars. In case of shortage, must be charged against its pro-rata share. United States v. Baltimore & O. R. Co. \[C. C. A.\] 165 F 113. In pro rating insufficient cars, company's pri- 'vate fuel cars, fuel cars of other roads sent upon its line, private or individual cars by mines, should be placed on same basis as forming available supply, fuel cars specially consigned and private ears being charged against particular miners' quota. Id. In determining a mine's rating during car shortage, its physical capacity to furnish coal should be taken as sole basis, and rule by which such capacity is taken as one, and shipments during last two years as two, is unfair and inequitable to new mines. Id. Interstate carrier making a shortage distribution of cars among coal mines companies has no right under the firstest Commerce Act to leave out private and foreign cars used in intrastate business. Majestic Coal & Coke Co. v. III-nois Cent. R. Co., 162 F 810.

**89. United States v. Baltimore & O. R. Co. \[C. C. A.\] 165 F 113. Shippers on main and collateral lines are entitled to same treatment under Interstate Commerce Act, as amended. Id. Rule allowing any mine operator using sea coast terminal tracks and unloading its cars threat within five days on average, a 50 per cent allotment during succeeding month, held a violation of Interstate Commerce Act. Id.**

\*\*90. State v. Central Vermont R. Co., 81 Vt. 463, 71 A 194. Lease by carrier of space between its tracks and river, held and treated as a part of its right of way or depot grounds, to logging company to en- 'hitchman Coal & Coke Co. v. Baltimore & ologs, held a discrimination against other similar shippers, in violation of Rev. St. 1839, 8 1177 (Ann. St. 1800, p. 872). Hobart-Lee Tie Co. v. Stone, 135 Mo. App. 438, 117 SW 604. Where carrier engaged in transferring cars from track of another carrier to a certain town delivered to all parties except the plaintiff, a milling company, it was an unlawful preference. Missouri Pac. & Miquaukee, With section of the act is not 612, 53 Law. Ed. --, aff. 74 Kan. 808, SS 81 Vt. 463, 71 A 194.

**91.** It is matter of common knowledge portion of cars apportioned to his station. State v. Chicago & N. W. R. Co. \[Neb.\] 120\*\* and varying conditions, and therefore rates established in one section furnish no reliable standard by which to measure reason- 'hitchman's of rates in another section where dissimilar conditions prevail. Acme Cement Paster Co. v. Lake Shore & M. S. R. Co. 17 L. C. C. 30.

**92.** It is matter of common knowledge portion of cars apportioned to his station. State v. Chicago & N. W. R. Co. \[Neb.\] 120\*\* and varying conditions, and therefore rates established in one section furnish no reliable standard by which to measure reason- 'hitchman's of rates in another section where dissimilar conditions prevail. Acme Cement Paster Co. v. Lake Shore & M. S. R. Co. 17 L. C. C. 30.

**93.** It is matter of common knowledge portion of cars apportioned to his station. State v. Chicago & N. W. R. Co. \[Neb.\] 120\*\* and varying conditions, and therefore rates established in one section furnish no reliable standard by which to measure reason- 'hitchman's of rates in another section where dissimilar conditions prevail. Acme Cement Paster Co. v. Lake Shore & M. S. R. Co. 17 L. C. C. 30.

**94.** It is matter of common knowledge portion of cars apportioned to his station. State v. Chicago & N. W. R. Co. \[Neb.\] 120\*\* and varying conditions, and therefore rates established

### 624. Carriers \[in general\] $ 2D.

13 Cur. Law.

sarily enter to a considerable extent.92 A mere unequal charge or furnishing of

etc., R. Co., 15 I. C. C. 329. Blanket rates

pounds was applied, made by combination

for coal from Walsenburg fields, in southern Colorado, to points in Kansas, Nekapids & Indiana Railway and Pittsburg,

brasska, Oklahoma, Texas, and New Mexico,

cincinnati, Chicago & St. Louis Railway

compared with rates on coal from points in

from Kendallville to Louisville, distance

Kansas, Iowa, Missouri, Wyoming, Illinois,

248 miles, and local rate of $0 cents via Oklahoma, and Arkansas, to consuming

markets, held justified by dissimilar conditions, distance 159 miles. Rate

from Louisville to Nashville, distance 187

rado & So. R. Co., 16 I. C. C. 387. Rate as compared with rates of one of defendants from Middlesboro to Knoxville is not ans-

Movement to Nashville is through Gallatin.

tained, as circumstances surrounding ship.

ments from Middlesboro are dissimilar,

& I. R. Co., 14 I. C. C. 520. Lower rate to

City of Bristol v. Virginia & S. W. R. Co.,

more distant points. Chicago Sash & Door

15 I. C. C. 45. Rate of $1.20 per ton

biltuminous coal from Middlesboro, Ky., to

594. Held that rate adjustment, in view of

Bristol, Tenn., when compared with $0-cent

substantial dissimilarity in circumstances

rate for hauh of same distance to Chatta-

and conditions surrounding traffic from

nooga, Tenn., is not sustained, there being

A dissimilarity in circumstances and condition

nothing against unjust discrimination

tions surrounding traffic to Chattaoga.

tor long-and-short-haul provision of state-

City of Bristol v. Southern R. Co., 15 I. C.

ate. Paola Refining Co. v. Missouri, K. &

C. 887. Held that circumstances and condition

T. R. Co., 16 I. C. C. 29. Defendants having

tions obtaining at Eufaula are materially

shown that competitive conditions at E1

different from those surrounding Balin-

Paso compelled lower rates thereto than to bridge, and that therefore complaint should

Santa Rosa, burden of proof does not rest
be dismissed. Bainbridge Board of Trade

upon them to justify their Santa Rosa rates,

Y. Louisville, etc., R. Co., 15 I. C. C. 588.

Moise Bros. Co. v. Chicago, etc., R. Co., 16

Imposition of higher track-stegare charges

at Pennsylvania Lines Produce Tards in

York, which does not exist in Philadelphia,

Pittsburg than at other points does not

justifies longer free time at former city.

constitute unde discrimination in view of

Brey v. Pennsylvania R. Co., 16

substantial dissimilarity of conditions. VII

Bros Produce Co., Pennyslvana R. Co., 16

traffic to Fall River and Bristol Berry

f. C. C. 116. Held that, in view of practical

plains and justifies relation of defendants'

difficulties attending "C. O. D." carriage of

rates to two points. Phillips v. New York

intocatefaire liquers, discrimination against

& Boston Depastol Exp., 15 I. C. C. 631.

that traffic resulting from refusal to per-

It is manifest that rail carriers from Grand

form service in question is not undne, and

Rapids ought not to be required to make

therefore not in violation of statute. Royal

rates to meet water competitors or to

Brew, Co. v. Adams Exp. Co., 15 I.C. C. 225.

equallez for complainant advantages of

Right of express company to maintain free

business rival which moves its product to

package pick-up and delivery service at one

Chicago by its own water line. Acme

point, while not maintaining such service

Cement Plaster Co., v. Lake Shore & M. S.

at another point, must necessarily be con-

R. Co., 17 I. C. C. 30. Water competition

trolled by conditions existing at each place.

may justify difference in railroad minimum

Because such service is maintained at Fall

and in right of combining different com-

Hiver, where volume of traffic is large, and

modities at carload rate as well as in rate

vragon service can be conducted economic

itself, but carriers should be prepared to

ically, it by no means follows that like serv-

justify such preference. City of Spokane

ice must be maintained at Bristol Terry,

v. Northern Pac. R. Co., 15 I. C. C. 376.

where traffic is small and cost of keeping

System of transcontinental rates now in

up wagon service might more than absorb

forge applies lower transportation charges

all revenue. Phillips v. New York & Bos-

from points of origin upon Missouri River

ton Despatch Exp. Co., 15 I. C. C. 631.

and east to Pacific coast cities than are ap-

92. Where competitive conditions among

plied to intermediate interior points. Held

shippers are leading considerations that in

that this scheme of rate making has been

duce complaint, commission in determining

forced by water competition between At-

reasonableness of rates must have due re-

lantle and Pacific coasts, and that main-

gard to transportation conditions

## 18 Cur. Law. CARRIERS \[IN GENERAL\] SS 2D.

faillities is not conclusive. \[93\] Penal statutes, however, relating thereto are strictly construed. \[94\] The prohibition against undue preference applies equally to a commission fixing the rates. \[95\]

To more effectually prevent unjust discrimination, the interstate commerce act requires interstatb rates to be filed, \[94\] and the amendment of June 89th, 1906, makes the transportation of property moving in interstate commerce \[97\] by a carrier who has failed to file rates for such service a misdemeanor. \[98\] Where a rate has been duly established, it is an offense under the Elkins Act to deviate therefrom, \[99\] and

A. R. Co., 15 I. C. C. 851. Where well sus-

tated water competition exists that takes

substantial portion of tonnage and could

choose to meet. Lindsay Bros. v. Balti-

readily prepare to take it all, if left in un-

more, etc., R. Co., 15 I. C. C. 6. Held that

disturbed control of traffic, call line, with-

order as prayed for in relation to class

out necessarily subjecting itself to charges

rates from Indianapolis to St. Paul and

of discriminating against other localities,

Winona is not warranted in view of pe-

may adjust its rates so as to fight for whole

culiar conditions under which traffic is

tonnage the moment it really feels effect

handled and rates constructed from Indian-

and influence of its competitor's rates; it

apolla and competing cities of St. Louis

need not wait, as complainants contend,

and Chicago to St. Paul and Winona terri-

until water line is prepared to take half

tory. Chicago not only has advantage of

tonnage. Id. Rates from St. Louis and

more intense railroad competition, but is

points basing thereon to New Orleans, Nat.

much shorter distance and enjoys natural

chez, Vicksburg, and other Mississippi river

dvantages of location over Indianapolis in

points are controlled by water competition,

reaching St. Paul and Winona. Likewise

and, therefore, fact that such rates are

St. Louis, while but little nearer than In-

lower than rates from same points of

dianapolis by short line, reaches St. Paul

origin to Monroe does not unjusty discrimini-

and Winona by direct routes, which must

nate against Monroe. Monroe Progressive

compete not only with each other but also

I. League v. St. Louis, etc., R. Co., 15 I. C. C. 634. That departure from former relation-

ship of rates on sugar from New Orleans

Cleveland, etc., R. Co., 16 I. C. C. 276.

to Indianapolis and to St. Louis and

**93.** Mere charging of 50 centres per ton less

Ohio River crossings is not unjusty dis-

for transportation of coal does not of itself

criminatory against Indianapolis, because

show unreasonable discrimination. State v.

rates on sugar from New Orleans to St.

Central Vermont R. Co., 15 V. 463, 71 A 194. Louis and to Ohio River crossings are con-

94. Rev. St. 1895, art, 4574, providing that

'trolled by potential water competition, but

a shipper unjustly discriminated against

that it is unjusty discriminatory against

may recover penalties, is a penal statut

Radianapolis to depart from former relation-

and strictly construed and will not be ex-

tionship of rates on coffee as between

tended so as to embrace acts not covered

dianapolis and St. Louis and Ohio River

by its language. Missouri, K. & T. R. Co.

crossings, because such rates on coffee are

not controlled by the water competition.

95. Rates established by Interstate Com-

Indianapolis Fright Bureau v. Illinois

merce Commission. Missouri, K. & T. R.

Cent. R. Co., 15 I. C. C. 567. That rates on

sugar from Atlantic seaboard points to St.

F 645. Railroad commission cannot disre-

Louis and the Ohio River crossings are con-

gard Rev. St. 1895, art, 4574, subd. 1, pro-

trolled by water-controlled rates from New

hibiting undue preference. Railroad Com-

mission v. Galveston Chamber of Commerce

justly discriminatory against Indianapolis

to depart from former relationship of rates

96. It is not essential to constitute "rates

on sugar from Atlantic seaboard points to

in force," within interstate commerce act

Indianapolis and to St. Louis and Ohio

requiring the same to be filed, that trans-

River crossings, but that it is unjusty dis-

orminatory against Indianapolis to depart

under. New York Cent. & H. R. R. Co. v.

from former relationship of rates on coffee

us between Indianapolis and St. Louis and

**07.** Where railroad haulie interstate com-

Ohio River crossings, which are not so con-

merec, it is subject to interstate commerce

trolled by water competition. Id. Indian-

acq and amendments in respect thereto, al-

apolis Fright Bureau v. Pennsylvania R.

though its line lies wholly within one stste.

Co., 15 I. C. C. 567; Indianapolis Fright

United States v. Illinois Terminal R. Co..

168 F 546.

567. While water competition may be

001. Amendment of June 29th, 1906, c. 3591, it is no defense that the concession was granted by way of a compromise of claims.1 It is equally an offense to receive a concession, but in either case the granting or receiving thereof must be willful. The act applies to a carrier transporting an interstate shipment under a "common arrangement." Likewise, it is an offense under the Elkins Act " to charge the lawful rate 6 and to thereafter knowingly ' and willfully 8 give a rebate therefrom,9 and it is no defense that competition required the giving thereof 10 or that the officers acted in good faith, believing that they could lawfully do as they did.11 Where a carrier is a party to a joint rate, it may be prosecuted for granting a rebate therefrom, though it did not file and publish the same.12 The payment of the rebate is the gist of the offense,13 and a single payment constitutes but one offense though it covers several shipments.14 Conspiracy to induce the giving or receiving of a rebate in violation of the Elkins Act is not limited to the giver or receiver alone.15

\_Remedies, criminal liability, prosecution, and punishment.\_See 11 C. L. 612--Mandamus 16 and injunction 17 will ordinarily lie at the instance of the party affected 18

or less or different" compensation than that named in schedules. United States v. Chicago, I. & L. R. Co., 163 F 114.

_It united States v. Atchison, etc., R. Co., 163 F 111._

\_It should be noted that the public state is not the public state.

to remedy and prevent unlawful discrimination. The plaintiff in a suit for unlawful discrimination by granting rebates to his competitor cannot recover if he has also received rebate though less in amount.19 Where the interstate commerce commission finds a rate, regulation, or practice, unlawfully discriminatory, it may make such order as is necessary to eliminate the same,20 and, where all the parties appear and are fully heard, it may grant such relief as the facts warrant though technically without the pleadings.21 While it is the duty of the commission to fix the duration of an order, failure to do so does not invalidate the same.22

Under the Elkins Act, prosecutions for the violation of the Interstate Commerce Act and its amendments must be in the district where the offense occurs,23 and, where the offense is a continuing one,24 it may be prosecuted in any district through which the transportation may have extended. An indictment for granting a concession or a rebate must allege all the essential elements of the offense,25 and the evidence must establish the offense charged.26 The carrier and its agents may be jointly indicted for giving a rebate.27 The integer for imposing penalty for the granting of a concession is the transaction,28 but the amount thereof rests largely within the discretion of the court.29

\_Interstate Commerce Commission.--\_The Interstate Commerce Commission has broad powers with regard to discrimination,20 and, in the exercise of that power,

Railroad Com. v. Galveston Chamber of ils amendments commences in one federal Commerce \[Tex. Civ. App.\] 115 SW 94. 19. International Coal Min. Co, v. Pennishvan R. Co., 162 F 996. 20. Is not limited to fixing maximum rsfes. New York, etc., R. Co. v. Interstate Commerce Com., 168 F 131. Order correction--ing a discrimination is not invalid because it does not correct others. Id. Interstate Commerce Act, SS 15, as amended by Hepburn Act, providing that where comminsion finds a rate or any regulations or practices unjustly discriminative it shall "determine and prescribe what. will be the just and reasonable rate or rates * * and what regulations or practices will be just," etc., does not require that on finding particular rate discriminatory it shall prescribe regulations in detail not necessary to remove discriminations. Id. Order, requiring carriers to cease from according to flour milled in transit at interior points, a lower rate for export than that for grain brought to New York from such interior points and there milled for export, held within powers of commission. Id. Carrier cannot complain of provision in order for its benefit, though outside of commission's power. Id. No objection to modification of rate order of commission that modified rate was discriminatory, for it is duty of commission to adjust same. Railroad Com. v. Galveston Chamber of Commerce \[Tex. Civ. App.\] 115 SW 94. 21. New York, etc., R. Co. v. Interstate Commerce Com., 168 F 131. 22. VIII be deemed effective for maximum limit of two years. New York, etc., R. Co. v. Interstate Commerce Com., 168 F 131. 23. Offense of failure to file schedule is committed in District of Columbia where filling is required. New York, etc., R. Co. v. D., S., 16C C. A.\] 168 F 267. 24. Provision in Elkins Act, that, where violation of Interstate Commerce Act and of common carrier to receive and carry, may determine the existence, order the cessation and afford reparation for undue discrimination \[21\] between commodities, \[32\] industries, \[33\] persons, \[34\] places and localities, \[35\] privileges, \[36\] oprates. \[37\]

upon reasonable terms, all goods tendered in suitable condition, and it cannot lawfully this commission is to establish just and discriminate in favor of any person, product, or locality. Standard Lime & Stone that can be done and allow these rival Co. v. Cumberland Val. R. Co., 15 I. C. C. & 620. There can, however, be no question as to right and power of commission to or. R. Co., 15 I. C. C. & 109.

& **Held discriminative:** Common carrier, in to prescribe such reasonable rates and regulations as will effect such removal.

& **Held discriminative:** A Common carrier, in to prescribe such reasonable rates and regulations as will effect such removal.

& **Held discriminative:** A Common carrier products of like industries located on connecting lines. Standard Lime & Stone Co. v. Cumberland Val. R. Co., 15 I. C. C. & 620. There is of course limit to products in a reasonableness of established rate and to which can reasonably be included in list award reparation predicated upon unreasonables of established rate, commis- material rate either with or without tran- isotriable. It might be reasonable to study transit privilege from product reasonable preference or advantage, undue material and from other products of same and, generally, whenever commission may rave material which are accorded transit rates, as, for example, liquid product relations of act. Washer Grain Co. v. Misouri Pa. R. Co., 15 I. C. C. 147.

& **Held discriminative:** A Common carrier, in to prescribe such a consumer that isotriable. Distermination involved in carrying of personal baggage of passenger without extra charge is not undue as against passenger without baggage. Herebeck-Demer Co. v. Baltimore & O. R. Co., 17 I. C. C. & 88.

& **Held not discriminative:** Movement of traffic is encouraged and increased when carriers adjust their charges to meet meet meet meet meet meet.

& **Held discriminative:** A Document of traffic is encouraged and increased when carriers adjust their charges to meet meet meet meet.

& **Held discriminative:** A Document of traffic is not ideal with carriers collectively as single unit or system, but its commands are directed to each with respect to service which it is required to perform. Id. De- vision of commission must be based upon broad principles of justice, keeping in view welfare of public as well as interests of carriers and shippers in entire territory Im- or under facts and circumstances of this case it should not be limited to those interests located in restricted part of producing territory. Id. Blanket or group rates in many cases, especially with reference to particular commodities, are of great advantage to public without serious injustice to any interest, though there is of necessity more or less disregard of dis-tance and varying degrees of Inequality. Id.

& **Held discriminative:** Common carrier, in to prescribe such reasonable rates and regulations as will effect such removal.

## 13 Cur. Law. CARRIERS \[IN GENERAL\] $ 2D.

on their part will be accepted and taken as

Conroe in well-established group, which evidence of unreasonableness of higher rates which they may undertake to enforce

that dissolution of. Just east in Alabama against other shippers. Hitchman Coal &

are other groups, established, maintained, Coke Co. v. Baltimore & O. R. Co., 16 I. C.

and defended upon same ground. And C. $12. Difference in rates based on time

Jackson and Meridian are grouped, and that of payment of charges cannot be made.

Grouping is maintained and defended upon

Boles Commercial Club v. Adams Exp. Co., 17 I. C. C. 115. Railway company may not

carriers may voluntarily do many things

lawfully transport men and supplies or

which they may not lawfully be compiled

press company when employed or used in

to do. Some of these defendants could, if

business of that company at points not on

they chose, add Hattiesburg to the Jackson-

line of railway, and express company may

Meridian group, and others could meet

not lawfully transport for railway pack-

adges between points on its route but not

and all of them could no doubt defend that

on that particular line of railway. In re

action as strongly and logically as they

Contracts of Exp. Companales for Free

now defend Jackson-Meridian group. Com

Transap. of Their Men affad Material Over

mission cannot, how find that, as mat-

Railroads, 16 I. C. C. 246. Where carriers

ter of law, Hattiesburg must be grouped

have in effect uniform rate per 100 pounds

with Jackson and Meridian. Commercial

for any quantity, which rate applies uni-

Cibu of Hattiesburg v. Alabama, G. S. R.

formly to all shippers, different rate ap

piled to carloads from that applied to less

mission might feel inclined to relieve con-

than exidoxs will not be ordered, especially

within provisions of law and with due and

to increase rate on less than exidoxs, and

proper regard for rights of every affected

further, to cut off consumers and small

interest. Id. George's Creek basin for ten

dealers from purchasing at distant markets

years or more has been grouped for rate-

In less-than-carload lots. Duncan & Co. v.

making purposes with Myerdsale, Austen-

Nashville, etc., R. Co., 16 I. C. C. 590.

Neburbg, and Upper Potomac coal-produc-

Held not discriminatory Railway company

mg districts, and Philadelphia, Baltimore,

may lawfully transport men and supplies

Wilmington, and other points of consump-

of express company without reference to

tion for like period of time have also taken

any tariff provision when employed or used

a group rate from all these mines. Held

in the business of express company upon

that no showing is here made justifying

line of railway itself, and in same manner

order disturbing this grouping of coal-produc

expressive company may lawfully transport

to packages of railway company between

dimensions. American Coal Co. v. Baltimore

points upon that line of railway without

& O. R. Co., 17 I. C. C. 149. Rates for coal

reference to its tariff rates. In re Contracts

and coke and of various other commodities

of Exp. Companales for Free Transap. of Their

named from Chicago, Ill., and other points,

Men and Material Over Railroads, 16 I. C. C.

to Fort Dodge, Iowa, as compared with

246.

- 35. Held not to discriminate: Defendants'

rate on beer from Milwaukee, Wis., to Ros-

is Fort Dodge uniquely discriminated

well, N. M., was at time complain's ship-

gagnant by reason of rate adjustment in

ments moved 78 cents per 100 pounds,

which rate to El Paso, Tex., was
60 cents,

Illinois Cont. R. Co., 16 I. C. 672. Rate

subsequently Roswell rate was reduced to

43.

71 cents. Held, that rate on beer from Mil-

while to Roswell, under circumstances

against Monroe. Monroe, Akeran-

disclosed by record, is not violative of

v. R. Louis, etc., It Co., 15 I. C. C. 534.

fourth section of act, does not unduly

Rate adjustment from Mississippi River

prejudice Roswell, and should not be fur-

ther reduced. Filant v. Atchison, etc., R.

from Vicksburg, Miss, to certain points in

Co., 15 I. C. C. 178. Local rates for transap.

portation of freight between Chicago and

Vicksburg, S. & P. R., 16 I. C. 482. Adop-

Des Moines and to give undude advantage to

tion of distance alone as measure of rates

Minneapolis and St. Paul as against Des

from points of origin to primary market

Moines, Greater Des Moines Committee v.

would necessarily result in clear division

Chicago, etc., R. Co., 17 I. C. C. 57. Com-

plant alleges that rate adjustment

destructity of competition in most of that

lined by defendants, under and in accord

with commission's decision in Farmer's Mer-

Iished adjustment which places Missouri

chants & Shippers' Club of Kansas v. Atchison, etc., R. Co., 12 I. C. C. 351, is unjust

and unbound rates on traffic generally, Granted Canton, Galva, and Springfield do

ping public to contribute to its revenues on any such grounds. Id. Complaminant had

foro not unlawful. Avery Mtg. Co. v. Atkinson, etc., R. Co., 16 I. C. C. 20.

**Heid to discriminate: Complaminant made**

shipment of apples from Nooksack, Wash., to Minneapolis, Minn., paying $1 per 100 pounds, Complaint alleged that rate from Nooksack should not have exceeded 80

cents, since that rate was applicable from

certain other points. After shipment rate

of 80 cents was extended to Nooksack, but

before hearing rate from all points had

been advanced to $1. Held that to main-

tain higher rate from Nooksack than from

other point was discrimination against

Nooksack and unlawful, that rate at time

shipment moved should have been 80 cents,

and that complaminant was therefore entitled

to reparation upon that basis. Gamble-

Rohinson Com. Co. v. Northern Pac. R. Co.,

14 I. C. C. 52. If milling-in-transit rates

over through route from Oklahoma wheat

defolds to points where flour is consumed are

made available to one milling point not on

such through route, by giving it back hault

or out-of-line service at reasonable rates,

point from Paul and Julian, Neb. Bartling

no reason is perceived why same opportunity

tunity should not be accorded to another

milling point, even though more distant

from such through route, at rates that are

Colorado & Southeastern Railway and

relatively reasonable. Celina Mill & Elie-

vator Co. v. St. Louis S. W. R. Co., 15 I. C.

rate than is given to coal of complainants

C. I38. Where, however, same carrier serves

two districts which, by their location, char-

filter Co., 16 I. C. C. 402. While recognizing diff-

markets where their product must be dis-

ferences in competitive conditions as be-

posed of are in substantially similar cir-

vumstances and conditions, serving carrier

sion is convinced that disparities between

cannot lawfully prefer one to other in any

existing rates from these respective points

manner whatsoever. Black Mountain Coal

of origin are too great on some commodi-

Land Co. v. Southern R. Co., 15 I. C. 286.

ties, and prescribes proper relative adjust-

Carrier cannot lawfully so group its mines

with respect of rates as to unduly discrimination

burlap and gummy bags, furniture and

mate against any locality. Duty imposed

by law is to give equal treatment to all

dianapolis .Freight Bureau v. Cleveland,

shippers who are in position to demand it,

etc., R. Co., 15 I. C. C. 504. Commission is

and this includes right to reach competitive markets on relatively equal terms. Id.

for-one rule from Chicago and its nonapili-

Rates from Apalachia coal district in Vir

sigma, including Black Mountain coal

district, which exceed by 25 cents rate from

coal Creek to all points on defendants'

just discrimination against place last

linea east and south of Morristown, Tenn.

saf law south as Charleston, S. C., and

Aupista, Ga., unduly discriminate against

However, rule similar in substance, but so

Black Mountain and Apalachia operators

restricted and modified as to prevent its

and unduly prefer Coal Creek operators. Id.

In claiming that as Chicago affords as good

to Indianapolis or else unlawful discrimina-

market for grain as does Milwaukee prin-

tion should be removed by readjustment of

cignal defendant may therefore lawfully so

minimum weights on various articles re-
adjust its rate schedules as to force grain

ferred to in complaint so that they will

to Chicago, defendant overlooks right of

conform approximately to actual loading

shipper to choose his own market and to

capacity of cars. Id. Dependant has dis-

do business where he prefers or finds it

ded various lumber-producing points on its

more advantageous to carry it on. It also

lines in northern and northeastern Wiscon-

overlooks chief function of common car-

air, which is to carry at reasonable rates

ber applying from all points in particular

traffic that is tendered to it. Milwaukee

Granp to points on defendant's lines in III-

Chamber of Commerce v. Chicago, etc., R.

nois and Iowa. Wabeno has been placed in

Co., 15 I. C. C. 460. Carrier has no right to

inist that shipment shall go to end of its

tails if shipper desires it to be diverted at

washington, etc., R. Co., 18 I. C. C. 505. Defendant

orced to establish no higher rates for

defolds to points where flour is consumed are

corn and wheat in carloads from Talmage

made available to one milling point not on

and Brook, Neb., to St. Louis, Mo., than are

such through route, by giving it back hault

contemporaneously maintained to same

or out-of-line service at reasonable rates,

point from Paul and Julian, Neb. Bartling

no reason is perceived why same opportunity

Gran Co. v. Missouri Pac. R. Co., 16 I. C. C.

tunity should not be accorded to another

494. Defendants ordered to cease and de-

milling point, even though more distant

ist from according to coal originating upon

from such through route, at rates that are

Colorado & Southeastern Railway and

relatively reasonable. Celina Mill & Elie-
15 Cur. Law. CARRIERS \[IN GENERAL\] $ 2D.

same rates as points in Wausau group. ant lines held undue preference to Alachua. Jones Lumber Co. v. Chicago & N. W. R. \[Hur v. Seaboard A. L. R. Co., 16 I. C. C. 1. Co., 15 I. C. C. 427. Rate of 22% cents per Forty-cent rate from Gainesville to Savan-100 pounds on laths, in carloads, from nah and 45-cent rate from Hawthorne to Deeee Lake, Wils., to Chicago, III, to ex-Savannah, 14. Present class rates on tent that it exceeded 10 cents per 100 rounds, rate applicable from Pennphone, Wils, partner-hitant, and the "Pertor
632

cas because it is found that free commermer-

an under so-called "two-for-one rule," per-

mitting application of cariload rates on

discriminated against Atichism and affected

part car lots in excess of full carloads from

rates paid by complainant to exact extent

Cimennati, Louisville, New Albany, Evans-

of % of cent per 100 pounds. Vrasher Grain

ville, and Chicago, whereas less than car-

Co. v. Missouri Pac. R. Co., 15 L. C. C. 147.

load rates are charged on any excess from

Indianapolis. Indianapolis Fre Freight Bureau

rimination in favor of complainant's com-

v. Cleveland, etc., R. Co., 16 L. C. C. 254.

picture in elevator allowances made by de

Rates on furniture (new, n. o. s.) kitchen

fendant at Omaha and Council Bluffs. Mer-

safes, iron and steel articles, stoves, roasted

rimam v. Union Pac. R. Co., 16 I. C. C. 337.

coffee, and machinery for coal mines, car-

Various complainants herein _et&ck_ repara-

loads, from Indianapolis to Mushosegege

tion caused by alleged undue discrimination

should not exceed those contemporaneously

against them in favor of competitors in

in effect from Cincinnati. Id. Against

-elevator allowances made by defendant at

dianapolis in favor of Chicago, Cincinnati

Omaha and Council Bluffs. Defendant de-

Louisville, New Albany, and Evansville in

clined to pay these allowances, alleging

transportation of vehicles, chairs, furniture,

that they were unlawful and that terms of

and woodenware to Arkansas common

traiffs were not compiled with. Held that

points in that local clags rates to East St.

this commission cannot, without stuffly-

Louis are applied on such shipments from

Inte itself, make any ruling which will

Indianapolis to common points in Arkansas

gems as unlawful payment of these allow-

whereas on similar shipments from Chicago

ances during time they have been expressly

and other points of origin mentioned, ar-

sanctioned by its decisions. Nye-Schneider-

bitrary differential bases via East St. Louis

Fowler Grain Co. v. Union Pac. R. Co., 15

are applied, which added to rate beyond, re-

t. C. C. 90.

sult in lower through rates. Id. Against

Indianapolis in application of clas rates to

point in Louisiana as compared with rates

contermoreously applied from Cincinnati

for carriers to undertake to compensate

and Louisville to same destinations. Id.

-

Class rates from Indianapolis to St. Paul

shippers are legally bound to do for them-

approximately 30 per cent in excess of

sieves for carriers to violate act. In re

those from St. Louis, on many commodities

Allowances for Transfer of Sugar, 14 I.

disparities between rates from these re-

spective points of origin are much greater.

These greater disparities as between com-

modity rates from these two points of

origin are not warranted. Indianapolis

Fregight Bureau v. Cleveland, etc., R. Co.,

16 L. C. C. 276.

**36.** The commission finds with respect to

all shipments involved in these cases that

provision in tariffs requiring return to de-

fendant of car within forty-eight hours as

condition precedent to payment of allow-

ance is unjust, unreasonable, unduly dis-

rimrimatory, and unlawful and that com-

planants are entitled to damages by re-

son of maintenance of such unlawful

provision which equal amount which would

have accrued to them by way of this eleva-

tion allowance, provided tariff had contained

no such provision. Defendant has paid to

competitors of complainants this elevation

allowance; it has at same time declined to

pay it to complainants. Commission finds

that defendant's reason for so declining is

not valid one, and that it has been guilty

of undue discrimination against complainants

ants, for which they are entitled to recover

as damages difference between what has

been paid to their competitors and to them.

Nye-Schneider-Fowler Grain Co. v. Union

Pac. R. Co., 15 I. C. C. 90.

Free delivery: Held that if defendants

voluntarily extend time of free delivery at

Philadelphia they must treat alike all points

similarly situated, and there might arise

duty to extend benefit to every other non-

fendant at Omaha and Council Bluffs. Merc-

R. Co., 16 I. C. C. 497.

**Elevator charges:** Payment of so-called

elevation allowance to dealers in hay, grain

and grain products in Nashville, Tenn.

Duncan & Co. v. Nashville, etc., R. Co., 16

I. C. C. 690. Reparation, based upon amount

# grain actually elevated, allowed in this

case. because it is found that free commer-

can use because it is found that free commer-

amiting application of cariload rates on

discriminated against Atichism and affected

rates paid by complainant to exact extent

Cinennati, Louisville, New Albany, Evans-

of % of cent per 100 pounds. Vrasher Grain

Ville, and Chicago, whereas less than car-

Co. v. Missouri Pac. R. Co., 15 13 Cur. Law. CARRIERS \[in general\] $ 3. 633

**SS 3.**_Connecting carriers, draymen, and transformer._\[38\] See 11 C. L. 612\_--Ordinarily a carrier is liable only for its own negligence,\[39\] and its responsibility ends upon a delivery to a connecting carrier.\[40\] It may, however, by a special course of dealing or by contract \[41\] undertake to carry to destination, in which case it is liable wherever the loss may occur,\[42\] the connecting carriers being its agents,\[43\] and the

**SS 3.**_Searech Note:_ See notes in 5 C. L. 513; \[contract did not lmply contract by carrier to return over all connecting lines so as to 101 Id. 520, 532; 22 A. S. R. 699; 89 Id. 527; 101 Id. 922; 106 Id. 604; 1 Ann. Cas. 707; 2 render it liable for a loss thereon. Erie R. Id. 517; 3 Id. 5, 584; 5 Id. 576; 7 Id. 471; 9 contact for shipment from New York to Los Angeles, Cal., named Colon as terminus of initial carrier, fact that answer admitted 187; 6 Cry. 374, 478-490; 6 A. & E. Zinc. L. Its liability as far as Panama because of its management of railroad across institutions does not necessitate the disregarding of terminus named in construing contract. \[Schwartz, Panama, R. Co. \[Ca.\] 103 P. Connecting carrier is not liable for default of prior carrier though damages develop on its line. Gnlt, etc., R. Co. v. Cunningham \[Tex. Civ. App.\] 113 SW7 167. Connecting carrier is not liable for negligence of initial carrier in selling a ticket to wrong station where there was no proof of partnership or that selling agent represented both carriers and instruction that if selling agent was negligent in selling the ticket both carriers were liable for injuries proximately resulting was erroneous. International & G. N. R. Co. v. Doolan \[Tex. Civ. App.\] 120 SW7 1118. Instruction as to liability of carrier held erroneous. Texas Cent. R. Co. v. Water-eon \[Tex. Civ. App.\] 118 SW7 175. Initial carrier is liable for loss by acts of connecting carriers. Windmillier v. Northern Pac. R. Co. \[Vwah.\] 101 P. 255. 40, Kirk v. Lehigh Val. Transp. Co., 185 Mo. App. 99, 115 SW7 615. In absence of contract or course of business to the contrary. Blackburn v. Chicago, etc., R. Co. \[Tox. Civ. App.\] 115 SW7 874. Plea that defendat's liability according to contract was to cease upon delivery to connecting l'Ine and that shipment was safely delivered held not demurable for failure to allege \[Hanke, 185\]. Glasharve of duty by connecting carrier. McNeill v. Atlantic Coast Line R. Co. \[Ala.\] 49 S 797. Railroad company merely shifting and placing car on house track of a consignee is not a connecting carrier, but acts as agent of the carrier. St. Louis S. W. R. Co. v. Jackson & Co. \[Tex. Civ. App.\] 118 SW7 853. 41. Express or implied. Lake Erie & W. R. Co. v. Seeley \[Ind. App.\] 86 NE 1002. Where steamboard company solid single ticket to destination which was reached by boat and trolley line, presumption arises that passenger was to be under care of steamboat company to the end, and burden rests on it to show that trolley line was under separate management. Clommens v. Washington Park Steamboat Co., 162 F 815. Where on trolal some evidence was introduced to show that trolley line used was under separate management, fact held for jury. Id. Goods carried to destination by connecting carrier were refused by consignee. Consignor entered into contract with Initial carrier appointing it as his agent to stop delivery and return goods, lasting it shall be liable for negligence of any carrier over whose lines it passes.

acceptance of goods consigned beyond its line makes a prima facie case of through shipment \[44\] in the absence of a limiting contract.\[45\] A local freight agent has no implied authority to contract for carriage beyond termini,\[46\] and hence actual authority must be shown \[47\] or such a course of dealing as will imply the same.\[48\] Likewise, where a partnership,\[49\] joint undertaking,\[50\] or agency \[51\] exists between connecting carriers, they are jointly liable for loss or damage without regard to place. A carrier is liable for the damages proximately resulting from its negligence, though the injury results beyond its line,\[52\] and where the negligence of connecting carriers concur in causing the injury, they are jointly liable.\[53\] A carrier receiving Holland v. Atchison, etc., R. Co., 138 Mo. and by agreement files with company a App. 694, 114 SW 61. Under Rev., 18: 1899, claim for damages, the company will be $ 522$ (Ann. St. 1906, p. 2718), a carrier $ 10 have recognized that there was but issuing a through bill of lading is liable for the negligence of a connecting carrier, and if a full rate is charged it is an unsurer $ 1 goods to be forwarded over another line becomes the agent of the shipper for that purpose,54 and, where it routes at variance with instructions, it becomes liable for any loss or damage that may result.55 The liability of connecting carriers has been the subject of the state 56 and federal 57 legislation, and under the Hepburn Act the initial carrier in an interstate shipment is liable wherever the loss or injury may occur,58 provided the connecting carrier causing the same would be liable therefor.59 The loss or damage, however, must be connected with the transportation of the goods,56 and the liability is enforcible in the state courts,61 especially if adopted into the general law of the state.62 It may also be enforced in the federal courts if the proper jurisdictional grounds exist.63 The act is inapplicable to a drayman or truckman merely transporting goods to the depot or wharf.64

Footnote 58: The use of the _e_-mail address of the author, which is a member of the author, which is

**636**: CARRIERS \[OF GOODS\] $ 4. **13** Cur. Law. As between the carriers, the one causing the loss or damage is usually liable and a recovery over should be allowed.\[67\]

A carrier cannot grant such "exclusive privileges to a transfer company as to create a monopoly." A contract whereby a hotel company agrees to lease the exclusive "taximeter cab" service includes motor cab service.\[69\] A railroad company may designate the places at its platform where competing hackmen shall stand their vehicles.\[70\]

Part II. Carriage of Goods.

**SS 4.**_Delivery to carrier and inception of liability._"11_See 11 C. L. #15_The liability of a carrier attaches when the goods have been delivered to \[72\] and accepted by \[73\] the carrier for immediate shipment, and not when the bill of lading issues.\[74\] What constitutes a delivery depends largely upon the circumstances of each particular case,\[75\] and the general custom of doing business.\[76\] Where the shipper is required to load, the carrier may refuse a tender thereof when loaded in a car which would render transportation unsafe.\[77\] One shipping explosives without disclosing the nature thereof,\[78\] is liable for resulting damage,\[79\] the burden resting, however, upon the carrier to show that a disclosure was not made.\[80\] Where an article presented

no discrimination unless such road wishes

**13**: Evidence, that large shipment of cotton was delivered onto platform as fast as & F. R. Co., $6. App. **163**, $5 SE 29. **14**: For more, that the cotton burned had been delivered thereon but that agent had not had time to check same and hence had co. v. Pool \[Tex. City. App.\] **114** SW 685. not signed the bill of lading, held to show acceptance for immediate shipment. St. Louis, etc., R. Co. v. Burrow & Co. \[Ark.\] 118 SW 198. **14**: St. Louis, etc., R. Co. v. Burrow & Co. \[Ark.\] 116 SW 198. **15**: Held sufficient delivery to common carrier engaged in switching cars over its switch tracks to and from other roads where shipper loaded and sealed car and notified carrier to move same which it agreed to do. Kansas City S. R. Co. v. Rosebrock-Josey Grain Co. \[Tex. Civ. App.\] 114\*\* SW 436. **16**: Evidence that lumber was placed-on wharf where it was customarily received by boat and that president of defendant company was notified thereof held to authoring findings of delivery and acceptance. Oostanaula & C. R. Steamboat Co. v. Hampton \[Ga. App.\] 65 SE 303. **17**: Barrel stays loaded under rule of commission. Central of Georgia R. Co. v. Cook, $6. App. **163**, $2 SE 464. **17**: International Mercantile Marine Co. v. Fels \[C. C. A.\] 170 F 275. Evidence held to show that shipper of soap containing naphtha sufficiently disclosed explosive character. Id. Letters and conversations and markings "Fels Napphtha" soap held to advise carrier of explosive character from vapor. International Mercantile Marine Co. v. Fels, 164 F 337. **17**: Surrounding facts held to sustain finding that explosion was caused by vapors from naphtha soap. International Mercantile Marine Co. v. Fels, 164 F 337. **18**: International Mercantile Marine Co. v. Fels, 164 F 337. **18**: International Mercantile Marine Co. v. Fels \[C. C. A.\] 170 F 275.

13 Cur. Law. CARRIERS \[OF GOODS\] SS 5. 637

for shipment possesses unusual value which is not indicated by its marking; it is the affirmative is on shipper or his delivering agent \[81\] to disclose the fact, and the failure to do so constitutes a fraud without regard to the actual intent of the shipper,\[82\] unless the carrier otherwise has knowledge thereof,\[83\] and defeats recovery for any loss or injury thereto.\[84\] Although not possessing exceptional value, if actual fraud is practiced,\[85\] recovery will be limited or denied, and especially under the statutes of some states.\[86\]

SS 5. _Bills of lading and other contracts of carriage.\[87\]--See 11 C. L. 516--A_ contract of carriage is governed by the laws of the state where made,\[88\] especially if it is to be partially or wholly performed therein.\[89\] It is not necessary that the contract of carriage should be in writing,\[90\] but an oral contract is usually merged in a sub- **31. Local express company delivering**

ing value of goods can only recover for goods to carrier held shipper's agent for purpose of disclosing contents. Harrington of lading in silence, knowing that it is v. Wabash R. Co. \[Alin.\] 122 NW 14.

82. Southern Exp. Co. v. Pope, 5 Ga. App. 689, 63 SE 809. Fact that shipper of house- 278.

hold furniture concealed some wearing ap- 278.

86. Virginia Code 1904, 12 94c, el 10, would preclude recovery for loss of furni- 278.

ture although no recovery could be had for merec Act, making it an offense- to procure such apparad. Way v. Southern R. Co. \[Ga.\] shipment at lesser rate by falsely representing character of goods, etc., except that **64** SE 1068.

83. Where carrier, knowing exact nature of goods, classified them, it cannot assert conventional as in conflict therewith, wrongful classification to defeat liability. Adams Exp. Co. V. Charlottesville Woolen St. Louis & S. F. R. Co. v. Cash Grain Co. \[Ala.\] 50 S1. Answer alleging that shipper represented the horse to be worth $75, 49 L. R. A. (79; 1 L. R. A. (N. S.) 242; 6 Id. that defendant did not know its actual value, but not alleging that defendant did not know that it was worth more than $75, 49 L. R. A. (79; 1 L. R. A. (N. S.) 242; 6 Id. that defendant did not know its actual value, but not alleging that defendant did not know that it was worth more than $75, 49 L. R. A. (79; 1 L. R. A. (79; 231 Id.) 595; 301 Id.) 323; not know that it was worth more than $75, 49 L. R. A. (79; 1 L. R. A. (79; 231 Id.) 595; 301 Id.) 324; 301 Id.) 325; 302 Id.) 326; 303 Id.) 327; 304 Id.) 328; 305 Id.) 329; 306 Id.) 329; 307 Id.) 334 Id.) 344 Id. (79; 1 L. R. A. (79; 231 Id.) 334 Id.) 344 Id. (79; 231 Id.) 344 Id.) 354 Id.) 364 Id.) 377; 307 Id.) 377; 308 Id.) 384 Id.) 394 Id.) 394 Id.

sequent written one " in the absence of fraud or imposition," unless rights have accrued thereunder," and especially where the parties contemplated a formal written contract." It need not be imbodied in a single instrument or paper," but, if in writing, it cannot be varied or altered by parol." The general rules governing the making," effect," and construction " of contracts, control. A contract may be ratified and made binding by subsequent acts thereunder." The miere fact that the contract contains provisions inapplicable to the shipment does not render it invalid." Such contracts are subject to reasonable public control," and stipulations therein for the sole benefit of the carrier are strictly construed." A contract with the final carrier is terminated by the shipper ordering return of the goods before it receives the same."

A bill of lading " is usually an instrument of a dual character, being a receipt for the goods and a contract for the carriage thereof." As a receipt, it is usually only prima facie evidence of the receipt of the goods," and, if nonnegotiable, the carrier may show that it did not in fact receive the goods as against a purchaser thereof." In some states, it is conclusive in the hands of a bona fide holder," and negotiations. Whitnack v. Chicago, B. & Q. \[K. & T. R. Co. v. Thompson \[Tex. Civ. E. Co. \[Neb.\] 118 NW 67. 92. Written contract signed, supposing it to correspond to oral contract and without an opportunity to read same, held not to us supersede oral one. Gulf, etc., R. Co. v. Looney \[Tex. Civ. App.\] 115 SW 268. 93. Lake Erie & W. R. Co. v. Beeley \[Ind. App.\] 86 NE 1002; Luckey, V. St. Louis & S. F. R. Co., 133 Mo. App. 589, 113 SW 703. 94. Assuming that where carrier has once accepted goods under common-law liability, it can not thereafter limit its liability by agreement assented to by shipper, such rule has no application where parties contemplated entering into a formal contract. Union Pac. R. Co. v. Beardwell \[Kan.\] 99 P 214. 95. Where letters contemplated issuing of usual bill of lading, such bill forms a part of contract of carriage. Merchants' & Miners' Transp. Co. v. Eicheberg, 109 McM. 211, 71 A 983. 96. Hachadoorian v. Louisville & N. R. Co., 128 App. Div. 171, 112 NYS 660. Where bill of lading has blank for rate unfilled, said rate, however, being recited as less than regular rate for carriage at carrier's risk, it is not varied by parol evidence of rate. St. Louis. etc., R. Co. v. Furlow \[Ark.\] 117 SW 517. 97. Where shipper accepted bill of lading after routing designated by him had been erased and permitted carrier to take cars for shipment, he was bound by contract as changed. Missouri, K. & T. R. Co. v. Thompson \[Tex. Civ. App.\] 118 SW 618. Where shipper prepares and sends to railroad company with his goods a shipping ticket containing directions that goods be shipped to certain point "as per condition of company's bill of lading," and company signs receipt for goods under those terms, and there is a standard form of bill. express contract of shipment is created, and conditions of bill of lading become a part of it. Southern R. Co. v. Frank & Co., 5 Ga. App. 514, 63 SE 656. 98. Whatever contract of shipment provides, whether verbal or written, under which refight is carried, determines route and connections to be observed. Missouri, 13 Cur. Law. CARRIERS \[OF GOODS\] SS 5. 639 in others it is expressly governed by statute.\[11\] Where the goods are loaded by the shipper and the bill is issued without verification,\[12\] it is not prima facie proof.\[13\]

\_Indorsement and transfer.\_See 11 C. L. 518--At common law bills of lading are symbolical of the property represented thereby,\[14\] and the indorsement thereof passes the title,\[15\] although a mere transfer thereof is usually held sufficient.\[10\] In some states, however, statutes expressly require indorsement.\[17\] Although bills of lading may be negotiable or nonnegotiable,\[18\] they do not ordinarily possess all the attributes of negotiable paper in the absence of statute,\[19\] and the transferee acquires only such interest as the transferor may have.\[20\] An assignee of a bill of lading holds superior to an assignee of the invoice bill of which he had no notice.\[21\] Rights under the transfer are not lost by allowing delivery of the goods to the consignee,\[22\] and, where the consignee fraudulently induces a delivery without a surrender of the bill contrary to its terms, it is no defense that the transferee fails to present
claim therefor until after the consignee becomes insolvent.28 Where a seller ships to his own order and assigns the bills of lading with a draft for the price attached, such assignee does not ordinarily become liable on the contract of sale,24 and especially whee he has no notice of the breach.25

SS 6. \_The duty to furnish cars.28--Sec 11 C. L. 517--Under the common law a carrier must furnish suitable and proper cars 27 sufficient to meet normal conditions of traffic 28 within a reasonable time after demand.29 A carrier is, however, under no common-law duty to furnish cars for a shipment beyond its own line,30 nor can a carrier be compelled to allow its cars to go beyond its own line without compensation.31 Where a carrier enters into a contract to furnish cars at a specified time,33 it must do so,33 and excuses which would relieve it from common-law liability are usually unavailable.34 The agent making such a contract must have authority to do so,35 although an unauthorized contract may be ratified.30 Where the contract

23. Sheldon v. New York Cent. & H. R. 30. Gulf, etc., R. Co. v. State \[Tex. Civ. R. Co., 61 Mice. 274, 113 NYS 676.

01. Buyer of draft for price with bill of lading attached may hold goods until draft is paid, and fact that consignee is obliged to pay draft before he can examine goods goes not render holder liable for breach of warrant in contract of sale. Mason v. Nelson Cotton Co., 148 N. C. 492, 62 SWB 625.

SELer of cotton, pursuant to instructions from buyer, shipped under bill of lading naming purchaser as shipper and a bank as consignee. Seller drew draft on purchaser payable to bank and attached bill of lading, which was deposited with bank.

113 SWP 703. Statement that cattle would be ready for shipment on a specified day, coupled with request for cars on that day and answer "AII right," held to constitute contract to furnish cars on that date. San Antonio & A. P. R. Co. v. Timon \[Tex.\] 114 SWP 792. Petition alleging that general manager of defendar orally told plaintiff that defendant could handle his fruit and would have cars at designated station with: In 24 hours after same were ordered, that plaintiff ordered cars, which were received but not until after expiration of the 24 hours, held to show contract to furnish cars within 24 hours. Chattanooga So. R. Co. v. Thompson \[Ga.\] 65 SE 285.

33. Carrier cannot relieve itself on ground that it exercised due diligence. Grimes v. Lake Erie & W. R. Co., 142 Ill. App. 532.

01. Chattanooga So. R. Co. v. Thompson \[Ga.\] 65 SE 285. Where defendant did not have cars but shipper secured same from another carrier and defendant agreed to deliver them to shipper at certain time, failure to do so gave right of action against defendant though there was a scarcity of cars. Texas & P. R. Co. v. Shawnee Cotton Oil Co. \[Tex. Civ. App.\] 118 SWP 776.

118 SWP 776.

35. Station agent has apparent authority. Grimes v. Lake Erie & W. R. Co., 142 Ill. App. 532. Agent authorized to receive and ship freight has implied authority. St. Louis, etc., R. Co. v. Taylor \[Ark.\] 112 SWP 745. Evidence that prior agreements of traveling freight agent to furnish cars had been carried out held to authorize submision of question of authority to make contact to jury. St. Louis, etc., R. Co. v.

01. Darlington Lunmber Co. v. Missouri Pac. R. Co., 216 Mo. 658, 116 SWP 530.

stipulates for cars upon shipper's order, a proper requisition must be made therefor." A carrier, leading the people of a particular region to believe that, if they put in a paticular crop, suitable cars will be furnished for the handling thereof, is liable for a failure to furnish the same.\[38\]

In some states, a carrier failing to furnish cars within a specified time after a proper demand \[39\] is subject to a penalty,\[40\] unless legally exensed.\[41\] Although the Arkansas statute on its face imposes an absolute duty to furnish cars, legal excuses are available to defeat liability.\[42\]

Unless the carrier has refused to furnish the cars,\[43\] a tender of the goods for shipment is usually necessary to fix liability,\[44\] and, to entitle a shipper to a penalty under the Texas statute, he must at the time of demand for cars have goods on

bound to furnish cars off its own line did so in accordance with contract of traveling

cause they make no provision for exempt-

fright agent held to justify finding that

ing carriers from damage for failure under

they were furnished in pursuance of such

circumstances beyond its control. Texas &

gerement (St. Louis, etc., R. Co. v. Taylor \[Tex. Civ. App.\] 118 SWF

shear \[Tex.\] 113 SWF 6), and to authorize

submission of issue of ratification of such

ads & Co. \[Tex. Civ. App.\] 118 SWF 110L

agreement if agent had no authority to

Rev. St. 1895, arts. 4197-4502, not in viola-

make same (Id.).

**37.** No recovery can be had for failure to

funnish cars for ungathened peaches for

Andrews, Reynolds & Co. \[Tex. Civ. App.\] 118 SWF 110L

Rev. St. 1895, art. 4497, re-

quiring a railroad company to furnish cars

spinments. Texas & P. R. Co. v. Smiltt \[Tex.

shpments. Texas & P. R. Co. v. Smiltt \[Tex.

curs. necessary for their transportation

would be furnished. Atlantic Coast Line R,

Co. v. Geraty \[C. C. A.\] 166 F 10.

**38.** Under the Texas statutes authorizing

the recovery of a penalty for failure to

funnish cars, the application must suff-

ciently comply with the requirements of

the statute. Application construed and

held sufficient to authorize recovery of penc-

sily. Texas & P. R. Co. v. Andrews, Reyn-

olds & Co. \[Tex. Civ. App.\] 118 SWF 110L

Judgment held to require conclusion that

Acts 20th Leg. 1887, pp. 133, 14, c. 139 (Rev. St. 1895, arts. 4497-4502) arts. 4497 and 4500

being & 11, 4, of Act of 1887, as amended

by Acts 26th Leg. 1899, pp. 166, 167, c. 95,

providing that when proper application is

made in writing for 10 cars or less, carrier

shall furnish same at place stated within

three days from time of demand and shall

Chicago, etc. & R. Co. \[Ark.\] 117 SWF 238.

be liable for penalty for failure, held that

requisition calling for cars on date of

pplication is insufficient. Griffith v. Texas

& N. O. R. Co. \[Tex. Civ. App.\] 118 SWF 648.

Rev. St. 1905, art. 4497, does not impose

upon a railway company the duty of sup-

plying a particular kind of cars, and the

shipper who imposes upon the company that

duty does not bring himself within the

letter of the statute giving the penalty,

and therefore he has no cause of action for

penalty. Chicago, etc., R. Co. v., Ivalley Bros.

**& Co. \[Tex. Civ. App.\] 119 SWF 897.**

**40.** Since a shipment is either interstate

or intrastate, held that there would be no

confusion to enforcing Laws 1901, Act No.

193, p. 453, $ 1, requiring cars to be furthest

infished within six days, as to intrastate

the arguments If it is unconconstitutional as to

terstate shipments. Oliver v. Chicago, etc.,

R. Co. \[Ark.\] 117 SWF 238. Rev. St.

atts. 4497-4502, authorizing recovery of penc-

and it is the only one- * \[of goods\] $ 7. 13 Cur. Law. hand for shipment.45 Where a carrier has incurred liability for failing to furnish cars as required, it is not relieved therefrom by the fact that the shipment is subsequently made.46

- \[of goods\] $ 7. \_Forwarding and transporting goods.47\_\_See 11 C. L. 519\_\_Custom cannot control an express contract as to forwarding obligations,48 and, when a carrier accepts perishable goods, it impliedly undertakes to exercise such care as the nature thereof may require.49 The duty to furnish suitable cars extends to proper refrigeration according to established custom.50 A carrier must render such special services as it expressly contracts to furnish,51 but it cannot charge for special services unnecessarily rendered.52 Where a carrier deviates from the designated route,53 it is liable for any resulting injury,54 and the burden rests upon it to show that the deviation was not a contributing cause.55 A carrier issuing a through bill cannot forward therefore they were not entitled to penalty for defendant's failure to furnish cars. \[Tex. Civ. App.\] 113 SVV 780. 50 Evidence that shipper's cabbage had \[Tex. Civ. App.\] 119 SVV 897. Rev. St. 1895, art. 4509, requiring a shipper, before recovery of penalty may be had for failure to furnish cars, to allow by evidence that he "had on hand at the time any demand for cars was made" the necessary freight with which to load them, is not void for uncertainty. Meaning of "on hand" construed. Texas & P. R. Co. v. Taylor \[Tex. Civ. App.\] 118 SVV 1097. Petition held to sufficiently allege that carrier had cattle intended to be shipped "on hand" as required by Rev. St. 1895, art. 4502, providing that shipper claiming penalty must show that he had property "on hand." Texas & P. R. Co. v. Smith \[Tex. Civ. App.\] 118 SVV 1118. 46 St. Louis, etc., R. Co. v. Taylor \[Ark.\] 112 SVV 746. 47. 5earch Note: See notes in 3 C. L. 596; 1 A. S. R. 312; 19 Id. 87; 11 Ann. Cas. 274. 254. 255, also, Carriers, Cent. Dig. **SS 240-461**, 734-852; Dec. Dig. **SS 70-106**, 169-187; 6 Cyc. 433-436\*\*, 463-490. 48. 3 Where express company undertook by contract to transport money, it cannot show custom merely to pay on order without actual transmission. Downs v. Pacific Exp. Co., 135 Mo. App. 330, 116 SWV 9. 49. 40. Carrier undertaking to carry perishable property in cars specially adapted to preserve it is responsible for any defect in cars resulting in injury to property. Missouri, K. & T. R. Co. v. McLean \[Tex. Civ. App.\] 118 SVV 161. Where connecting car-rier accepts car of peenshes it is charged with notice of perishable nature of shipment, and by such acceptance undertakes to exercise reasonable care to protect same and to deliver with reasonable dispatch. Philadelphia, B. & W. R. Co. v. Diffendal, 109 Md. 494, 72 A 193. Falled to ventilate car of apples which should have been delivered to cold storage. Michigan Cent. R. Co. v. Harville, 136 Ill. App. 243. Where carrier undertakes to transport fruit in the cars provided with ventilating apparatus, it "Impledy contracts to sea handle as to make appliance available. Western R. Co. v. Shule for the refusal of connecting carrter Hart \[La.\] 49 S 371. Although carrier does not expressly contract to furnish refriger- \[136 Ill. App. 243. 255, not car, if it accepts perishable property \[55 V. Southern R. Co., 135 Mo. App. 210, 115 SVV 500. Carrier is liable for such difference as class of goods requires, loss of goods where but for changing of by another carrier to a point to which its line extends.60 A carrier accepting a shipment for a point on its own line is not bound to obey a reconsigning order taking its cars onto another road.57

\_Delay in transportation._See 11 C. L. 519_-A carrier is not an insurer against delay,68 but must exercise reasonable care 69 to transport within a reasonable time,60 and is liable for all injuries proximately 61 resulting from its negligence.62 What directions of shipper they would have reached destination notwithstanding neglig-gent directing of shipper. Id. 50. St. Louis, etc., -R. Co. v. Caldwell \[Ark.\] 116 SWV 210.

67. Where there was no special contract to that effect and no universal custom, and if so notice had been given by carrier that its cars would not be reconsidered to points on foreign roads, Martin-Howe Coal Co. v. Illinois Cent. R. Co., 142 Ill. App. 80.

01. Tiller v. Chicago, B. de Q. R. Co. \[Iowa\] 120 NW 672. Carrier may ordinarily make such reasonable train schedules as may be proper to the ordinary and economicised conduct of its business, due regard being had to nature of shipment. Id. Evident.

Hence held insufficient to support judgment by reason of the fact that there was no proof of special contract with reference to time of transportation and no proof of inspection.

51. **Extensible causes for delay: Snowstorm, R. Co. v. Rogers \[Tex. Civ. App.\] 118 SWV 722.** 112 SWV 1030. _Evidence held_, not to show any actionable delay in shipping cattle from Watson, Mo., to Chicago, Ill., de-lays on its own line. Shockley v. Penn-sylvania R. Co., 190 MG. 123, 71 A. 437. Although notice of special damages that will result from delay requires exercise of care commensurate with the case, carrier is only required to exercise reasonable care to transport promptly. Chicago, etc., R. Co. v. Planners \[Gin & Oil Co. \[Ark.\] 113 SWV 852. $e$0. Libby v. St. Louis, etc., R. Co. \[Mo.\] App.\] 117 SWV 659; Groot v. Oregon Short Line R. Co., 34 Utah, 152, 98 P. 1019; Tiller v. Chicago, B. de Q. R. Co. \[Iowa\] 120 NWV 672. Where there is evidence that shipment was materially delayed and was received by consignee in damaged condition, held not error to submit question of unreasonable delay to jury. Allen v. Chicago, B. & Q. R. Co. \[Neb.\] 118 NWV 655. Evidence held not support verdict that carrier had unreasonably delayed transportation of stock. Tate v. Missouri Pac. R. Co. \[J.\] 143 Ill. App. 289. Where goods consigned at point in Washington to a point in Minne.

01. \*\*Extensible causes for delay: Snowstorm, R. Co. v. Planners \[Gin & Oil Co. \[Ark.\] 113 SWV 852. $e$0. Libby v. St. Louis, etc., R. Co. \[Mo.\] App.\] 117 SWV 659; Groot v. Oregon Short Line R. Co., 34 Utah, 152, 98 P. 1019; Tiller v. Chicago, B. de Q. R. Co. \[Iowa\] 120 NWV 672. Where there is evidence that shipment was materially delayed and was received by consignee in damaged condition, held not error to submit question of unreasonable delay to jury. Allen v. Chicago, B. & Q. R. Co. \[Neb.\] 118 NWV 655. Evidence held not support verdict that carrier had unreasonably delayed transportation of stock. Tate v. Missouri Pac. R. Co., 143 Ill. App. 289. Where goods consigned at point in Minne.

01. \*\*Extensible causes for delay: Snowstorm, R. Co. v. Planners \[Gin & Oil Co. \[Ark.\] 113 SWV 852. $e$0. Libby v. St. Louis, etc., R. Co. \[Mo.\] App.\] 118 SWV 655; Groot v. Oregon Short Line R. Co., 34 Utah, 152, 98 P. 1019; Tiller v. Chicago, B. de Q. R. Co. \[Iowa\] 120 NWV 672. Where there is evidence that shipment was materially delayed and was received by consignee in damaged condition, held not error to submit question of unreasonable delay to jury. Allen v. Chicago, B. & Q. R. Co. \[Neb.\] 118 NWV 655. Evidence held not support verdict that carrier had unreasonably delayed transportation of stock. Tate v. Missouri Pac. R. Co., 143 Ill. App. 289. Where goods consigned at point in Minne.

01. \*\*Extensible causes for delay: Snowstorm, R. Co. v. Planners \[Gin & Oil Co. \[Ark.\] 113 SWV 893. $e$0. Libby v. St. Louis, etc., R. Co. \[Mo.\] App.\] 118 NWV 655; Groot v. Oregon Short Line R. Co., 34 Utah, 152, 98 P. 1019; Tiller v. Chicago, B. de Q. R. Co. \[Iowa\] 120 NWV 672. Where there is evidence that shipment was materially delayed and 644 CARRIERS \[OF GOODS\] SS 7. 13 Cur. Law. is a reasonable time is a question of fact,63 to be determined from all the surrounding circumstances.64 While mere delay is not proof of negligence,65 it may be so great as to make a prima facie case.66 A carrier may, however, expressly obligate itself to transport within a specified time 67 or in time for a particular market.66 The carrier must not mislead shipper as to the time of starting the shipment,69 and where there is unreasonable delay therein, it must notify him so that he may act accordingly.70 Likewise, it must not mislead him as to arrival of goods at destination.71 It is liable for delay caused by route deviation.72 In the exercise of its control over carriers, a state may prescribe a penalty 78 for unreasonable 74 delay 78 or _may_ authorize the recovery of liquidated damages.76

01. Tiller v. Chicago, B. & Q. R. Co. train until 9:30 and it requiring eight or nine hours to get special. St. Louis & S. F. R. Co. v. Vaughan \[Ark.\] 113 SVW 1038. Where shipper would have cared for cattle at junction at yards or elsewhere had it not been for representation that cars would be forwarded at once, it cannot be contended that assurances were not proximate cause of injury because yards of connecting carrier were too small to accommodate all. Id. 76 St. Louis & S. F. R. Co. v. Vaughan \[Ark.\] 113 SVW 1035. 71. Where, after arrival of horses, agent, without exercising due care to ascertain that fact, informed plaintiff that they had not arrived, knowing that he was very anxious to give them care, held negligent. Gilbert v. Chicago, etc., R. Co., 132 Mo. App. J 115 SWV 635. 72. Where it appeared that the unusual evidence. Holland v. Atchison, etc., R. Co., 133 Mo. App. 694, 114 SVW 61. Only slight evidence is required where there has been any unusual delay. Gilbert v. Chicago, etc., 132 Mo. App. 697, 112 SVW 1002. 66. Where it took 31 hours to transport stock over route which usually took but 8 or 10 hours, a prima facie case of negli-gence is made out. Libby v. St. Louis, etc., R. Co. \[Mo. App.\] 117 SVW 658. Where evidence showed that shipment of cattle did not arrive at certain station until four or five hours after they were loaded, and time required for the run was 2 hours and 20 minutes, whether there was negligent delay was question for jury. Texas & P. R. Co. v. Moore \[Tex. Civ. App.\] 113 SWW 67. 67. Mere statement by agent that shipment would arrive at a certain time held not to constitute a special contract to carry by that time. Sauter v. Atchison, etc., R. Co. \[Kan.\] 97 P 434. Where carrier had expressly contracted to transport wheat, without stipulating for exemptions for delay caused by extraordinary rush of busl-e.g., it cannot defend on that ground. Mis-souri, K. & T. R. Co. of Texas v. Stark Grain Co. \[Tex. Civ. App.\] 120 SWV 1146. 68. Station agent may make contract for delivery in time for a particular market. Gulf, etc., R. Co. v. Looney \[Tex. Civ. App.\] 115 SWV 268. Evidence held sufficient to take issue of contract for delivery in time of specified market to jury. Id. 76 St. Louis & S. F. R. Co. v. Vaughan \[Ark.\] 113 SVW 1035. 69. Although carrier was not liable for failure to forward stock received at 7 o'clock until 9:30 next morning, held liable where it led shipper to believe that it would be "amendment to U. S. Const. Cram v. Chi 13 Cur. Law. CARRIERS \[OF GOODS\] $ 8.

Such penal statutes must be strictly construed,17 and the action must be prosecuted by the proper party.78 These statutes frequently prescribe the speed which must be maintained.79 Under the South Carolina statute due and timely 80 notice must be given to the shipping agent that prompt shipment is desired,81 by the consignor or his agent.82 The petition must allege all facts necessary to bring the case within the statute.83

SS 8. \_Loss or injury to goods.84--See 11 C. L. 621--In the absence of special contract 88 or statute,86 a common carrier is an insurer 87 against loss or injury to goods being carried in such capacity,88 unless due to an act of God,89 judicial intervention,90 the inherent nature of the goods,91 or the negligence of the shipper,92 and,

cago, B. & Q. R. Co. \[Neb.\] 122 NW 31;

S4. Search Note: See notes 1m 5 L. R. A. Kyle v. Chicago, B. & Q. R. Co. \[Neb.\] 122 (N. S.) 459; 10 Id. 317; 15 Id. 801; 11 A. S. - NW 37. Rule of railroad commissioners & 260; 90 Id. 200; 97 Id. 526; 4 Ann. Cas. making carrier liable to shipper for certain 769; 5 Id. 821; 10 Id. 171.

delays by way of demurrage penalty held See, also, Carriers, Cent. Dig. $ 462-607, reasonable, and not discriminatory. State 775-803; Dec. Dig. $ 107-137%, 177; 6 Cyc. v. Atlantic Coast Lane R. Co. \[Fla.\] 47 $ 488; 5 A. & B. Enc. L. (Jed.) 233.

969. Complaint alleging delay of three weeks in violation of 24 Stat. 671, and de-

001. Where legislature increases common-manding judgment against defendant for law liability, it will not be declared un-the sum of $90 penalty as provided by statutes, constitutional under Const. art. 11, $ 4, pro-

uto, held to sufficiently show that action viding that carrier's liability shall not be was for per diem penalty for delay as pro-

limited, because under a hypothetical stu-

vided in 24 Stat. 671. Farrell v. Atlantic

cation it may work to prejudice of shipper. Coast Line R. Co., $ 8. C. 410, $ 48 28.

Cram V. Chicago, B. & Q. R. Co. \[Neb.\] 122 Mere refusal to pay dournurrage charge as

NW 31.

prescribed by rule of commissioners does not subject carrier to penalty. State v. goods. Kansas City So. R. Co. v. Rose-

Atlantic Coast Line R. Co. \[Fla.\] 47 $ 896.

brook-Josey Grain Co. \[Tex. Cl.\], App. J. 114 76. Cram v. Chicago, B. & Q. R. Co. \[Neb.\] SW 436. Under Hepburn amendment to

122 NW 31.

77. Act Mar. 26, 1904 (24 Stat. 671), pre-

scribing penalty for delay, being penal

rule for "any loss, damage, or injury caused

must be strictly construed. Mills v. South-

by it" or connecting carrier, the liability is

orn R. Co., $ 2. S. C. 242, 64 SE 238.

that of insurer as to common law. Louis-

78. Penalty prescribed by Rule 10 of de-

ville & N. R. Co. v. Warfield \[Ga. App.\] 65 (Nimurrage and delay rules of railroad commissioners may be recovered by consignee.

evidence shows that goods were received

Keysstone Lumber Yard v. Yazoo & M. V. R. Co. \[Miss.\] 47 $ 803. Rule of railroad

fendant. Hill v. Adams Exp. Co. \[N. J. commissioners, making carrier liable for

Law\] 11 A 683. That connecting carrier

demurrage for delay of car and prescribing

a penalty, is enforible by shipper and not

tion as to whom to deliver to does not ex-

by commissioners. State v. Atlantic Coast

cuse from duty to carry safely, where

Line R. Co. \[Fla.\] 47 $ 896.

owner did not prevent it from getting

79. Speed prescribed by Cobbey's Ann. St.

same. Western R. Co. of Alabama v. Hart

1907, 19 10,606, need only be maintained from

Initial point "of receiving said stock to the

point of feeding or destination," and, hence,

under contract between shipper and ter-

when maintained until arrival at feeding

point, statute is compiled with. Cram v. ing

in-

carrier agrees with shipper to receive

Chicago, B. & Q. R. Co. \[Neb.\] 122 NW 31.

80. Notice must be given within such re-

sonable time-before shipment that agent,

notwithstanding his other duties, by re-

sonable diligence, may keep same in mind.

Mills v. Southern R. Co.

646 CARRIERS \[OF GOODS\] $ 8. 13 Cur. Law. hence, is liable for the tortious acts of third persons \[98\] and of its servants. \[94\] It is always liable for injuries proximately \[95\] resulting from its negligence, \[98\] and the negligence of the shipper, \[97\] inherent deterioration, \[98\] or an act of God, \[99\] is no defense if its negligence proximately contributed therewith. \[1\] Where a carrier ex-pressly accepts \[2\] a shipment defectively addressed, it must deliver it safely, \[9\] and where shipping directions are not clear, it is the duty of the carrier to hold the shipment and demand further instructions. \[4\] A special contract must be performed according to its terms. \[5\] The liability has been expressly defined in some states by to protect same and to deliver same with long period during which goods might have dispatch. Philadelphia, B. & W. T. Co. , been traced, and they are finally destroyed Diffenda1, 109 Md. 494, 72 A 198. Evidence in a burning warehouse, carrier is liable as held to show that apples when shipped a matter of law for the loss thus sustained. were in good condition and were properly Friberg v. Cleveland, etc., R. Co., 11 Ohio packed, and that the only reason the apples of did not reach destination in sound condition was the failure of carrier to keep car ven- Texas, was not leed by shipper, the terminated and properly feed. St. Louis S. W. , perature being 10 degrees above zero at New York, nor were any instructions given App.J 118 SW 853. 92 Rev. Codes 1905, $ 5690, making car- rier an insurer with certain specified exception of which negligence of shipper is car ventilated and properly feed. St. Louis s. W. T. Co. of Texas v. Jackson & Co. (Texr. common-law 18 Cur. Law. CARRIERS \[OF GOods\] $ 9.

special statutes.\* Nonpayment of freight in advance does not less responsibility if transportation is undertaken.\*

**SS 9.**\_Delivery by carrier and storage at destination.8_See 11 C. L. 822--Delivery to the proper person * or his agent,10 or a tender of such delivery,11 terminates the relationship,12 and the carrier may thereafter assume a different one.13 A constructive delivery, however, can be effected only by agreement.14 In the absence of special contract,18 a carrier's liability as such ceases in some states upon the arrival of the goods and a reasonable opportunity for removal,16 but in others it continues out contract. Garberson v. Trans-Conti-

tination is there accepted by consignee, no nentral Freight Co., 51 VNash. 213, 98 P 612.

recovery can be had for cost of returning &. Absolutely liable unless loss was due

same to rlight destination. Flakne v. Great to act shipper or by one of the causes

Northern R. Co., 106 Minn. 64, 118 NW 58.

specified in Civ. Code, & 2194. Stockholm

Where carrier contracts to deliver trunk at Lumber Co. v. California Nava, & Imp. Co.

station, and not to owner at station, and \[Cal. App.\] 101 P 541. Under Civ. Code, & 2194, destruction by the elements is no

defense unless caused by some irresisible Super. Ct. 634. Duty of carrier to deliver superhuman cause. Id. First sentence of

in such condition that consigneement may be Va. Code 1904, & 1294c(24), rendering initial

identified, and consignee cannot arbitrarily * carryer liable as insurer for damage caused

apply undetermined goods in its warehouse

- by its negligence or the negligence of a

subject to carrier's order to the consignor's connecting carrier, does not apply to ship-

account. Galveston, etc., R. Co. v. Crow

ment wholly on one road. Chesapeka & \[Tex. Civ. App.\] 117 SW 170.

O. R. Co. v. Few \[Va.\] 464 SB 35.

**13.** Where, after delivery of cars, carrier

7. Cleveland, etc., R. Co. v. Rudy \[Ind. App.\] 87 NE 555.

protect from flood, consignee to pay only

8.\*\*_Searne Note:_ See notes 13 C. L. 600;

17 L. R. A. 691; 33 Id. 66; 37 Id. 177; 38 Id.

858; 4 L. R. A. (N. S.) 1056; 37 Id. 98; 37. 104.

835; 240; 9 Id. 57; 14 Id. 393; 15 Id. 176; 99.

912 SW 721. Evidence held to show deliv-

A. S. R. 511; 34 Id. 731, 735; 97 Id. 84; 5 Ann.

Cas. 100; 9 Id. 794; 10 Id. 44.

See, also, Carriers, Cent. Dig. 872 273-955,

special contract to hold in storage, the li-

608-636, 764, 765; Dec. Dig. 87 79-148-

bility of a common carrier is terminated

146, 175: Cyc. 436, 453:477; 5 A. & E. Enc.

L. (2ed.) 244; 26 Id. 1077.

**9.** At common law, unless bill of lading

otherwise stipulated or carrier has notice

carr to consignee for storage of fruit and

to contrary, delivery to consignee exner-

tature has exclusive possession thereof, the

ates carrier from liability. Bonds-Foster

consignee owes no duty to repair car (Mis-

Lumber Co. v. Northern Pac. R. Co. \[Wash.\]

souri, K. & T. R. Co. v. Triples \[Tex. Civ. App.\] 117 SW 1999.)

for notice to particular person, he becomes

sence of notice or knowledge of the need

agent of consignor for purpose of receiving

thereof (Id.), although it must exercise or

notice. Hardin Grain Co. v. Chicago & A.

Glinary care (Id.). Negligence in failing

R. Co., 134 Mo. App. 681, 114 SW 1117. Ad-

dressing of package to consignee in care of

Where carrier furnishes defective refriger

a third person, in absence of known limitations

of authority, confers upon such third

person implied authority to receive the

foods. Commonwealth V. People's Exp. Co.,

owner had no cold storage facilities, there

201 Mass. 564, 88 NE 420. Provision in bill

is no issue of contributory negligence in

of lading to notify certain person does not

leaving fruit therein. Missouri, & R. T. R.

make him consignee. Pisme Y. Hartford

Co. v. Triples \[Tex. Civ. App.\] 117 SW * \[OF GOODS\] $ 9. 13 Cur. Law.

wherever the goods may be kept 17 for a reasonable time after due notice to the consignee of the arrival.18 While it continues thereafter to hold the goods as a carrier,19 its liability becomes that of a warehouseman 20 wherever the goods may be kept,21 unless it has wrongfully prevented removal.22 What constitutes a reasonable time within which to remove goods depends upon the circumstances of the particular case,23 unless controlled by statute.24 Notice of arrival of goods may be required by special contract 25 or local custom.26 While a notice through the mails is usually sufficient,27 it must be directed to the consignee's known place of business.28 The place where property is to be delivered by the carrier is at the usual place for making such delivery at the point of destination, unless the specific place is named in the contract of shipment.29 A delivery of a shipment which is indivisible is not complete until the delivery of the entire shipment, provided the same is removed within a reasonable time.30 While it is ordinarily the duty of a carrier to unload goods from the car,31 if the consignee is to unload the same, the car must be placed in a convenient position for that purpose 32 and the placing thereof is usually held a delivery.33 Under the common law, express companies may establish reasonable delivery limits.34 It is the duty of the consignee to remove the goods within a re-

- \[OF GOODS\] $ 9. 13 Cur. Law.

- \[OF GOODS\] $ 9.

- 13 Cur. Law. CARRIERS \[OF GOODS\] $ 9.

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- 152 been wrongfully converted by misdelivery, the shipper need not seek to recover the goods,44 and if he thereafter accepts them back, the liability is not affected.50 A negligent delay 51 or injury 52 does not authorize the consignee to reject the goods and claim conversion, but, if on the consignee's refusal to accept delayed goods the carrier disposes of them, it is a conversion.53

tractual in character, the shipper or his duly authorized agent \[61\] must assent thereto, \[82\] although such assent is usually presumed from the signing \[83\] or acceptance \[84\] before shipment \[85\] of the contract of carriage. containing the same, and especially if the shipper knows thereof \[66\] or by the exercise of due care would know. \[67\] Assent must be voluntarily given and, if obtained by duress, the limitation is void \[88\] unless subsequently ratified. \[69\] In some states knowledge of the limitation must be actually brought home to the shipper, \[76\] and his assent thereto manifested in a particular way. \[71\] It is the duty of a common carrier to carry without any contract

clared, oral conversation with driver as to \[and company's liability was $50 unless a value held inadmissible to vary written re- \[30\] greater value was given. Jonasson v. Weir, 130 App. Div. 528, 130 App. Div. 528, 115 NYS 6.

65. Evidence held insufficient to show that \[61\] of lading limiting liability to own line consignor's residence and delivering to express company has no implied authority to \[and\] ment. Coats v. Chicago, etc., R. Co., 238 \[and\] ment. Coats v. Chicago, etc.

limiting its liability, and it may be compelled to do so when compensation for the service is tendered.\[72\] Where the shipper makes the receipt or contract containing the limitation the basis of a suit, he is bound by the restriction.\[78\] Likewise, the contract of limitation must usually be supported by an independent consideration,\[14\] a reduction in rate being sufficient.\[78\] The carrier, however, must actually have a higher rate for carriage under full common-law liability,\[78\] and must offer the shipper a choice between rates.\[71\] Limitation of liability to carrier's own line does not need a special consideration,\[78\] and it has been held that the general consideration for carriage is sufficient to support a stipulation therein for notice of injury.\[79\] A recital in a contract of affeighment to the effect that a reduced freight rate was granted to the shipper, in consideration of a stipulation limiting the carrier's common-law liability, is prima facie evidence of that fact,\[80\] but such a recital may be contradicted by parol.\[81\] On grounds of public policy, carriers are not usually permitted to contract against negligence,\[82\] although until recently they could relieve 72. Burgher v. Wabash R. Co. \[Mo. App.\] 150 SWV 673.

\[\] SWV 1052. Where shipment of animals was not by weight but by the head, while contract provided that rate was 7 cents per NNYS 6.

\[\] SWV 1053. Where shipment of animals was not by weight but by the head, while contract provided that rate was 7 cents per NNYS 6.

\[\] SWV 1054. Where shipment of animals was not by weight but by the head, while contract provided that rate was 7 cents per NNYS 6.

\[\] SWV 1055. Where shipment of animals was not by weight but by the head, while contract provided that rate was 7 cents per NNYS 6.

\[\] SWV 1056. Where shipment of animals was not by weight but by the head, while contract provided that rate was 7 cents per NNYS 6.

\[\] SWV 1057. Where contract rejected that rate charged for shipments at carrier's and the head, while contract provided that rate charged for shipments at carrier's and the head, while 13 Cur. Law. CARRIBERS \[OF GOODS\] $ 11. 653

themselves in North Dakota except as against gross negligence.\[33\] They may usually fix the value of the shipment even against loss by negligence,\[84\] and especially if such valuation is for rating purposes.\[85\] Among the more common limitations held valid are those fixing the amount of recovery,\[84\] especially if for rating purposes " or the time and place of ascertaining the same,"\[88\] and limiting recovery to a particular sum unless the true value is given.\[89\] An arbitrary valuation, however, is not

Mule Co. \[Ala.\] 49 S $ 822; Summerlin Y. Sea-

bluity to $ 850 unless a greater value is de-

board Air Line R. Co. \[Fla.\] 47 S $57; Llibby

cared held valid whether carrier was negli-

v. St. Louis, etc., R. Co. \[Mo. App.\] 117 SWY

gent or not. Magnus v. Platt, 62 Misc. 499,

655; Atkinson V. New York Transfer Co., 76

115 NY824. Under the common law a con-

N. J. Law, 608, IA 278; Jolliffe V. Northern tract limiting the carriers liability to a less

Pac. R. Co. \[Wash.\] 100 P 977. Though not

sun than the damages actually caused by it

inhibited from making such exemption by

svd. Atishon, etc., Co. v. Smyrhe

statute. St. Louis, S. W. R. Co. v. Wallace

\[Tex. Civ. App.\] 119 SWY 892. Limiting li-

\[Ark.\] 118 SWY 412. Assumption of risk of

bility to $ 15 per 100 pounds. Id.

overheating by shipper does not relieve car-

85. Townsend & Wyatt Dry Goods Co. v.

rier where it is due to carrier's gross negli-

cence. St. Louis & S. F. R. Co., Copeland

86. Misc. W. St. Louis & S. F. R. Co., 134

\[Okl.\] 102 P 104. Pyrovisions in contract

bluge. App. 379, 114 SWY 1052. Limitation on

tween carrier and shipper of live stock, that

value of goods fairly and openly made is

the carrier should not be liable for injury to

bluging. Windmiller V. Northern Pac. R. Co. shipper or stock and that shipper should in

\[wash.\] 101 P 252. Shipper under valuing

spect car containing shipment, are void.

to obtain low rate is bound thereby in case

Blatcher v. Philadelphia B. & W. R. Co., 31

of loss. Townsend & Wyatt Dry Goods Co.

App. D. C. 885. Provision that shipper of live

v. U. S. Exp. Co., 133 Mo. App. 683, 113 SWY

stock should examine cars and pens, and

1161. Contract for reasonable reduced value

that occupancy of same should constitute an

in consideration of reduced rates held valid.

acknowledgment that they were sufficient,

Jones-Lane Co. v. Atlantic Coast Line R. Co.,

to be valid held to require only reasonable

148 N. C. 580, E 82 TE 701 Where entered into

diligence, and not to relieve carrier for fall-

in good faith and not for purpose of evad-

ure to provide sufficient latch to gate, where

shipper took stock to yards at night and

found only one unoccupied pen and exam-

med the fence thereof. Buck V. Oregon R. & Nave. Co. \[Wash.\] 101 P 491. A contract

Div. 245, 112 NY8 705. Plaintiff expressed

between shipper and carrier releasing car-

riers worth $2,000, but marked no value on

rier from "any and all liability for delay in

package and gave none to company. Box,

shipping said stock after delivery thereof to

1ts agent" is inoperative to release the car-

marked as of value of $150 and such value

rier from liability for damage resulting to

was written in receipt which plainir

shipper from its negligence in delaying the

cepted without noamr. Field that she could

shipment. Texas & P. R. Co. v. Moore \[Tex. Civ. App.\] 119 SWY 897. \[Fla.\]

Community Act (Gen. Acts 1997, p. 299) and

Negligence for jury: Whether stock escapes

caged because of defective latch on gate,

etc, held not to validate limitations in bills

Buck v. Oregon R. & Nave. Co. \[Vash.\] 101

of lading as to amount of recovery. Ala-

P 491. In action for injury to hogs, whether

bama Great So. R. Co. v. McCleskey \[Ala.\] 49

defendant or connecting carriers were negli-

gent. Lake Errie & W. R. Co. v. Seeley \[Ind.\]

tiles, transported by full car load under

bill of fading for "H. H. Goods, 12,000 (Ds.),"

**Held neglicent:** Where carrier permitted

front to remain in warehouse for 49 days be-

off's recovery is not usually upheld." Except as controlled by statute," a carrier may usually limit its liability to its own line;" unless it has agreed to carry through," it may limit its common-law liability for a consideration." The validity of a contract of limitation is usually tested by the laws of the state where made," but it will not be enforced in another state if against the public policy thereof." Where the carrier unnecessarily deviates from the agreed route without the shipper's assent, it becomes subject to full common-law benefit." The loss or damage occurring must come clearly within the limitation," the restriction being construed against the carrier."

limiting recovery to $50 where a receipt pre-

an instruction ignoring such limitation was

pared by shipper limited recovery to that erroneous. St. Louis S. W. R. Co. v. Patton

amount unless a higher value was stated,

\[Tex. Civ. App.\] 118 SW7 798. Under Rev. St.

and shipper did not fill in blank or inform

\[189, SS 522 (Ann. St. 1906, p. 2178), providd-

carrier of higher value, proper. J. M. High

ing that a common carrier issuing a bill of

Co. v. Adams Exp. Co. \[Ga. App.\] 63 SE 1125.

\[18\] Where Persian shawis and rungs and a

\[19\] the shipper caused by its negligence

diamond ring are shipped under a contract

describing shipment as a. secondhand desk

and stipulating that carrier will not be

\[19\] the link that

\[19\] the carrier may limit its link

\[19\] for any article of extraordinary value

\[19\] the link that

13 Cur. Law. CARRIFERS\_\[OF GOODS\] $ 11. 655

\_Provisions for notice of injuries.\_See 11 C. L. 550--In the absence of statute,1 a carrier may on proper consideration2 contract as for notice of injury or claim for damages within a reasonable time 4 after the accrual of the claim5 or delivery of the goods,6 or due time therefor,7 and an inexcusable failure8 to give the same to the proper party9 in the manner provided10 defeats recovery,11 unless waived11 or the 10 shipper has been misled by the carrier.13 Where the stipulation fixes an unreasonable time, it is wholly void and no notice need be given.14 A waiver must be within the time for giving such notice and is a question of intention.15 The loss or claim must come clearly within the terms of the contract to prevent recovery.16

Footnote 26: https://www.

13 Cur. Law. CARRIERS \[OF GOODS\] $ 13. 657

\_Persons who may que and be used._See 11 c. L. 830_--The action must ordinarily be prosecuted by the party in interest,\[23\] and hence the right of a vendor consignor to maintain the same depends upon whether title has passed to the consignee.\[24\] It is immaterial whether the goods were held under a carrier's or warehouseman's liability at the time of injury.\[25\] While a consignee may usually sue,\[26\] the action must be based upon the contract of the consignor,\[27\] unless he had previously made a special contract with the carrier which the consignor had no authority to alter.\[28\] Where goods of husband and wife are received indiscriminately in a shipment of household goods, the carrier cannot escape liability for loss of wife's goods upon the ground that the contract was made with the husband alone.\[29\] An action upon the contract may be brought by the contractor though not the owner of the goods.\[30\] Actions for penalties must be brought by the party designated by statute,\[31\] but it it is not necessary under Texas statute that the plaintiff be the sole owner of the goods.\[32\]

\_Particular remedies available._See 11 c. L. 831_--Generally damages for loss or injury to goods may be recovered in an action ex contractu \[33\] or ex delicto,\[34\] at the

23. One having beneficial ownership in \[for inspection by consignee before accept-goods may sue. Lloyd v. Hough & Keeman since, held it did not show lack of title in \[for inspection by consignee before accept-stronge & Transfer Co. \[Pa.\] 72 A 516. One plaintiff so as to be demurable. Missouri, to whom goods were shipped for sale on commission who sold the goods and con-l13 SW 306. Under shipment of fron consigned them to the buyer has such interest signed to seller, "notify" the purchase, pur-as will enable him to sue in tort for goods taken from car before sale. Edgerton v. Chicago, etc., R. Co., 240 Ill. 311, 88 NF 808. Where manufacturers company in filling order makes contract for benefit of buyer, consignee as real party in interest may recover. Ill. 311, 88 NF 808.

01. Although contract was made by the Co. \[KY.\] 116 SVV 758. Where buyer refuses to accept goods and returns same, he can agreement to deliver. Henry J. Perkins Co., not recover for loss thereof on return shipment. Nathan v. Missouri Pac. R. Co., 135 85.

01. Mo. App. 46, 115 SWV 496. Over of live

01. Bound by the limitations therem. stock shipped under bill of lading issued to his agent and in latter's name may sue in 198 Mass. 561, 85 NE 895.

01. Henry J. Perkins Co. v. American Exp. Cubub v. St. Louis & S. F. R. Co., 136 Mo. App. 1, 117 SWV 110. One having no property under the evidence whether shipment was or interest in the goods cannot sue in tort made under contract with consignee or a carrier for its breach of duty. B&gerton v. Whether alleged agreement was a mere nec-Micheago, etc., R. Co., 240 Ill. 311, 88 NE 808.

01. Under Revisal 1905, 8 Z 823. One who has being made with consignor. Id. shipped foods to be sold for his benefit may sue for nondelivery. Robertson v. Atlantic Coast Line R. Co., 148 N. C. 523, 62 SE 413.

01. Fein v. Weirl, 129 App. Div. 289, 114

01. Action for penalty under Revisal 1905, passes to consignee upon delivery to carrier and hence consignor must overcome same to recover for nondelivery. Wertherimer v. In name of state. Robertson v. Atlantic Wells, Fargo & Co., 112 NYS 1062. Where consignee was not pay for coal until delivery, consignor may sue for coal converted by railroad to its own use. St. Louis & S. F. R. Co. v. Stone \[KAN.\] 97 P 471. Consignor

01. An action upon the contract may be brought by the contractor though not the owner of the goods.\[30\] It is not necessary under Texas statute that the plaintiff be the sole owner of the goods.\[31\] It is not necessary under Texas statute that the plaintiff be the sole owner of the goods.

shipper's option,"\* and, in case of doubt as to the nature of an action, it will be construed in tort rather than upon contract." An action for loss due to issuing of bill of lading without receipt of goods will be construed ex contractu rather than ex delicto." A penal claim for delay under the North Carolina statute may be joined with an action on contract for nondelivery."

\_Pleading, proof, and evidence.\_See 11 C. L. 831--The complaint must be definite and ccrtain " and must allege all of the essential elements of the particular cause of action sought to be maintained," including defendant's negligence " and the particular damages sought to be recovered." Plaintiff, however, need not anticipate the defense of limited liability." The federal statute, relating to connecting carriers' liability, need not be pleaded in Kentucky." Causes of action in tort and on

{Ga\_} 65 SE 93. Count alleging that carrier complaint alleges a shipment in general undertook as a warehouseman, for a reward, etc. Western R. Co. v. Hart \[Ala\_.\] 49 S 371. --Action following statutory form for recovery of damages for failure to deliver, and ment was under oral or written contract, for failure to deliver within a reasonable time. McNill v. Atiante Coast Line R. Co. v. Beardwell \[Kan.\] 99 P \[Ala.\] 49 S 197. Action for damages for fail. --A.

{Ga\_} 65 SE 93. Count alleging that carrier complaint alleges a shipment in general undertook as a warehouseman, for a reward, etc. Western R. Co. v. Hart \[Ala\_.\] 49 S 371. --Action following statutory form for recovery of damages for failure to deliver, and ment was under oral or written contract, for failure to deliver within a reasonable time. McNill v. Atiante Coast Line R. Co. v. Beardwell \[Kan.\] 99 P \[Ala.\] 49 S 197. Action for damages for failure to use venntating apparatus of refrigerator, to transport with reasonable care, within caro car, resulting in injury to fruit, con-

transoable time, etc., held not insufficient as strued to be ex contractu, allegations of neg-

against objection of connecting carrier that ligence being merely descriptive of breach.

Westeren R. Co. v. Hart \[Ala\_.\] 49 S 371. --Where words "promised," "undertook." "agreed," etc., In complaint, are coupled with

113 SWY 767.

a statement that the same were based upon

a consideration, action will be construed as ex contractu. Id.

ing to provide safe facilities for unloading.

94. May wave contract remedy and use in

tort. Owens Bros v. Chicago, etc., R. Co., 139

AIP. 74, 62 SE 468. In action instituted by Iowa, 538, 117 NWY 762. Compliant alleging that shipment of hogs were carelessly detained for 10 hours at a way station, causing

them to be lata in reaching destination.

whereby they lost in weight and condition.

etc., held to charge violation of common-law

duty to carry promptly and not a breach of contract. Brown v. St. Louis & S. F. R. Co., 135 Mo. App. 624, 117 SWY 112.

35. Shipper whose goods are damaged

while being transported by a common car-

rier has the choice of declaring either in

assumpst on the contract of affrightment, or in tort for breach of the duty imposed on

or in tort for breach of the duty imposed on

the carrier by law to carry safely. Black-

mer & Post Pipe Co. v. Mobile & O. R. Co.

\[Mo. App.\] 119 SWY 1.

36. Owens Bros. v. Chicago, etc., R. Co., 139

Iowa, 538, 117 NWY 762. Especially if inter-

est of plaintiff will be best served thereby.

Southern EXP, Co. v. Pope, 6 Ga. App. 689, 63

SE 809. Pleading of contract is not con-

clusive that action is in tort, since contract

is basis of relation upon which common-law

liability depends. Owens Bros. v. Chicago, etc., R. Co., 139 Iowa, 538, 117 NWY 762.

37. Missouri, K. & T. R. Co. v. Sealy

\[Kan.\] 99 P 230. Constructed ex contractu.

1d.

38. Claim under Revival 1905, 5 2632. Rob-

artson v. Atiante Coast Line R. Co., 148 N.

C. 323, 62 SE 413.

39. Compliant alleging failure to deliver

orange boxes within reasonable time, and

"that by reason of the premises the plaintiff

incurred loss in being unable to pick and ship his oranges for Christmas market" held

indefinite and uncertain. Williams v. Atiante Coast Line contract must not be joined."" Pleas must be consistent with one another," must be responsive to the cause of action alleged in the complaint," and must allege all the elements of the defense." Limitation of liability must be pleaded," and it must appear that the carrier's negligence did not concur with the exempted cause in producing the injury." In pleading contributory negligence, facts imposing the duty claimed to have been violated must be alleged." An allegation of partnership between defendant roads must be specifically denied." A new cause of action cannot be asserted by way of reply." The general rules governing amendments apply."

While plaintiff has the burden of proving all the essential elements of his complaint," unless judicially noticed," including his right to sue," defendant's negligence.

45. Pleading held bad in that causes of ac. carrier unless it pleads same. Aultman Ention ex contracta and ex delicto were joined \[Iowa\] 121 NW 22. Under Rev. St. 1899, Post Pipe Co. v. Mobile & O. R. Co. \[Mo. App.\] 119 SWV 1.

ment of any new matter constituting a defense, carrier must affirmatively plead that contract requires notice of injury. Libby v. plaintiff's demand was refused, whereby plaintiff was compelled to ship to another stipulation provided for notice of claim with-place and suffered loss, but alleging that his contract required written notice of claim for delivery. In action for loss of one case which was not given, held not inconsistent. Aull v. Missouri Pac. R. Co., 136 Mo. App. 291, 116 SWV 1122.

47. Plea not shown to have related to same shipment held bad. St. Louis & S. F. R. Co. v. \[Ala.\] 48 S 814.

cursion of lumber by wrongful delivery, place of stepped based on custom as to de-invery, known to plaintiff, which falls to identify lumber delivered therender, as that map and method of transportation, shed for, is defective. Mobile, etc., R. Co. \[Ala.\] 48 S 877. In

as caused by decay, and weather, held bad action for failure to furnish cars whereby plaintiff was compelled to ship to another market at a loss, answer alleging that shipment to latter place was under contract, which required notice of claim for damages which was not given, held not responsive to action pleaded. Aull v. Missouri Pac. R. Co., 136 Mo. App. 291, 116 SWV 1122.

48. Plea in action for conversion of lumber by wrongful delivery, that lumber was shipped for sale on market, that shipper delivered to person who received lumber and invoice, and that delivery was made upon invoice as was custom, that custom was known to shipper, held to state defense of estoppel. Mobile, etc., R. Co. v. Bay Shore

01. Plea in action for conversion of lumber by wrongful delivery, that lumber was shipped for sale on market, that shipper delivered to person who received lumber and invoice, and that delivery was made upon invoice as was custom, that custom was known to shipper, held to state defense of estoppel. Mobile, etc., R. Co. v. Bay Shore

01. Plea satisfying up contract defendant's liability ceased upon delivery of shipment to con-inceting carrier held not defective for failure to attach an exhibit or to set out specific contract, as it was not necessary for contract to have been in writing and it may not have been. McNeill v. Atlantic Coast Line R. Co. \[Ala.\] 49 S 797. Where consigned made ten- or 1128 SWV 112. Under Code, $629, carrier can-not avail itself of contract exempting it from liability for negligence of connecting

01. Proof of injury to stock in carrier's possession raises presumption of negligence. Jones v. Atlantic Coast Line R. Co., 148 N. C. 449, 62 SE 521; Jones-Lane Co. v. Atlantic Coast Line R. Co., 148 N. C. 580, 62 SE 701. May draw inference of fact that injury sustained was caused by negligence of carrier, though there was a special contract exempting carrier from liability except for negligence. Gross v. Adams Exp. Co., 85 Pa. Super. Ct. 467. Evidence held legally sufficient to warrant an inference by jury that negillence of carrier caused injury to glass which was found broken on arrival. Id. Evidence held sufficient to support verdict of not guilty of negligence in transporting cattle. Trogdon v. Vandalia R. Co., 143 Ill. App. 230. Evidence held prima facie sufficient to authorize finding against the delivering carrier for all the damages to shipment of horses. St. Louis, etc., R. Co. v. Fenley \[Tex. Civ. App.\] 118 SV 745. Where evidence does not show when intermediate carrier received shipment or when it delivered it to succeeding carried, held insufficient to show delay on its line. Shockley v. Pennsylvania R. Co., 109 Md. 123, 71 A 487. Where the question of negligence in issue was that of causing "native" cattle, not subject to quarantine, to be wrongfully placed in "quarantine pens." instruction to the effect that if jury found that the initial carrier delivered the "native" cattle to the connecting carrier in the customary manner then the burden of proof was on the latter to show by a preponderance of evidence that f In turn delivered to next connecting carrier in usual and customary manner was erroneous as facts stated by plaintiff would only be prima facie evidence, and not a presumption of law that said con 13 Cur. Law. CARRIERS \[OF GOODS\] SS 13. 661

was not due to inherent nature or vices of the shipment,"' ordinarily raises a presumption of negligence." Where the liability sought to be enforced is that at common law, a prima facie case of negligence in the transportation of animals arises from showing injury by external violence during transit." Where the shipper loaded the goods, he must also show that they were properly loaded." Such presumption makes a prima facie case," casting the burden on the carrier to overcome the same, or to relieve itself by showing that the loss or injury was due to a cause for which it was not responsible," or by establishing a special exempting contract," bringing the case within it," and showing that its negligence did not contribute." Unless controlled by statute," plaintiff has the burden of showing that the loss or injury occurred in defendant's possession," but, where goods are shipped over several connecting lines and are shown to have been injured," a presumption " arises that it occurred on the terminal line," unless plaintiff's evidence shows the condition two weeks after arrival, is no proof that they were in that condition when 118 NW 826; Owens Bros. v. Chicago, etc., R. they arrived. Hardin Grant Co. v. Chicago & Co., 139 Iowa, 538; 117 NW 762; Southern R. A. R. Co., 184 Mo. App. 681, 114 SW 1117. \*\*Co. v. Frank & Co., 5 Ga. App. 574, 63 SE 656. 63. While shipper has burden of showing that the host injury of animal was not due to natural vice, very slight evidence of negligence is 118. It co., 138 No. App. 624, 117 \[Mo. App.\]. 117 SW 659. Where a shipper was shipped under some for an injury to an animal, the burden is on him to show prima facie that the in-jarries were received through some cause other than the vicious propensities of the animal or animals shipped. Slight proof of carrier's negligence is sufficient. Foust v. Lee \[Mo. App.\]. 119 SW 505. 64. Magnus v. Platt, 62 Misc. 499, 115 NYS 824; Duncan v. Great Northern R. Co. \[N. D.\] 118 NW 826. By special agreement burden of proving actual negligence on part of carrier may be placed on plaintiff. Merchants' & Miners' Transp. Co. v. Elbberg, 109 Mc. 211, 71 A 993. In action for penalty under Revisal 1905, % 2632, for unreasonable delay in delivery, proof of nondeclivery raises a presumption of negligence and casts burden on carrier to excuse itself by showing that goods were burned, destroyed or action with-out its fault. Robertson v. Atlantic Coast Line R. Co., 148 N. C. 328, 62 SE 413. 65. Foust v. Lee \[Mo. App.\]. 119 SW 505. 66. E. C. Fuller Co. v. Pennsylvania R. Co., 61 Misc. 599, 113 NYS 1001. 67. Proof that injury to stock was an ordinary incident of handling stock rebents presumption of negligence arising from mere fact of injury. Jones v. Atlantic Coast Line R. Co., 148 N. C. 449, 62 SE 521. Where, from evidence, it was equally plausible that door through which flax escaped came open from some other cause as from shippers' fall-ure to properly fast name, carrier has not relieved itself from liability. Duncan v. Great Northern R. Co. \[N. D.\] 118 NW 826. 68. Burden rests on carrier to show loss came within common-law exception from liability. Lloyd v. Hough & Keeman Storage & Transfer Co. \[Pa.\]. 72 A. 516. Evidence in sufficient to show that fire resulted from spontaneous combustion. Id. 69. Owens Bros. v. Chicago, etc., R. Co., 139 Iowa, 538, 117 NW 762. Limiting liability in event of unusual delay to cost of food for stock. Hennigh v. Cleveland, etc., R. Co., 143 Ill. App. 835, Cleveland, etc., R. Co. v. McNutt, 138 Ill. App. 66. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 60. 61. 63. 65. 67. 68. 69. 61. 60. 62. 64. 66. 68. 69. 60. 61. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 60. 63. 67. 69. 61. 64. 68. 69. 62. 65. 67. 68. 69. 60. 61. 61. 63. 66. 68. 69. 60. 61. 64. 69. 62. 65. 67. 68. 69. 61. 60. 62. 66. 67. 69. 61. 61. 64. 68. 69. 62. 67. 68. 69. 60. 63. 68. 69. 61. 60 contrary,"17 and, hence, in a suit against the initial 78 or an intermediate 79 carrier, plaintiff must make affirmative proof." Such presumption is not indulged, however, where the shipments over the various lines are independent or where there is a total loss." The fact that a connecting carrier receives a shipment without objections is not a presumption as against the shipper that the goods were in good order at the time."22 Where the carrier is only liable for negligent delay, plaintiff must prove the same,"23 although proof of a wreck makes a prima facie case." The burden of proving a breach of contract rests on the plaintiff."23 A carrier asserting a custom as a defense has the burden of establishing the same."24 Where the carrier separates cars in charge of a caretaker, it must show a justifying reason."25 As in actions generally, there must be no material variance between the allegations and proof."25

In the admission of evidence, the ordinary rules respecting conformity to the 175. Presumption of injury while in possess- sign of terminal carrier held fully and ex- apreprondance of testimony that it delivers the public Co. 149 S 243. Where goods are received in good condition by the initial carrier, and delivered by the terminal carrier in a damaged condition, a prima facie case of negligence is made against the delivering carrier. Atchison, etc., R. Co., Smythe \[Tex. Civ. App.\] 119 SW 892.

\*\*77. Bill of lading showed that it was damaged when received. Georgia, F. A. R. Co. v. 7. Stanton & Co., 5 Ga. App., 50, 63 SE 65. Where goods came into possession of terminal carrier only a few days before damaged condition was discovered, and damage is shown to have been in progress for several months, presumption of injury while in hands of terminal carrier does not prevail. Souther R. Co. v. Frank & Co., 6 Ga. App. 574, 63 SE 65. Connelly v. Illinois Cent. R. Co., 133 Mo. App., 310, 113 SW 233. Shockley v. Pennsylvania R. Co., 109 Md., 123, 11 A 437. No., 510 S. Sheble v. Oregon R. & Nav. Co., 51 W/ash. 353, 98 P 745.

**81. Plaintiff bas burden of proving that fact. Southern Exp. Co. v. Saks \[Ala.\] 49 S 32. Applies where part of single entire shipment, though made up of individual articles, is lost. Way v. Southern R. Co. \[Ga.\] 49 SE 106.**

**82. Blackmer & Post Pipe Co. v. Mobile & O. R. Co. \[Mo. App.\] 119 SW 13.**

**83. Special contract exempted carrier from liability for delay. Gilbert v. Chicago, etc., R. Co., 123 Mo. App. 697, 112 SSV 1002. While proof alone of unreasonable delay in a shipment will not support an inference of negligence, yet such proof, when buttressed by evidence of circumstances which even slightly tend to show a negligent origin of the delay, will warrant such inference. Parsons Applegate Co. v., Louisville & N. R. Co., 136 Mo. App. 493, 118 SSV 101.**

**84. Thompson v. Quiney, etc., R. Co., 136 Mo. App. 404, 117 SSV 1193; St. Louis S. W. R. Co. v. Wallace \[Lark\] 118 SW 412. Carrer has burden of proving that it was unavoidable. Thompson v. Quiney, etc., R. Co., 156 Mo. App. 404, 117 SW 1193.**

**85. Instruction that the burden of proof**

**86.**: **In the delivery of cotton to compress company as agent of consignee, burden rested on it to prove such custom. Arkansas Midland R. Co. v. Moody \[Lark\] 117 SW 1757.**

**87.**: **Whitchack v. Chicago, B. & Q. R. Co., 82 Nb. 464, 118 NW 67.**

**88.**: **Error to admit evidence to show dam-age caused by delay at junction point, such issue not being raised by pleading, cause of action being founded solely upon negli-gent handling of train by which it was alleged worse were thrown down and injured. Barry v. Quiney, etc., R. Co. \[Mo. App.\] 120 SW 111. Where petition by carrier to recover freight charges advanced to initial carrier, connecting carrier, and its own charges, alleged contract by defendant to pay plaintiff said charges, but not as to amount to be paid, evidence was admissible to prove that charges paid to the other carriers and its own were reasonable. Chicago, etc., R. Co., 82 Nb. 46 S 106.**

**87.**: **Where basis of recovery as alleged was negligent delay, no recovery can be had on theory that defendant's agent authorized shipper to sell goods and promised to pay loss. Missouri, K. & T. R. Co. v. Carpenter \[Tex. Civ. App.\] 114 SW 900. In action in tort for loss of goods, variance between allegations and proof of the destination of goods and consideration held not material. Kansas City So. R. Co. v. Rosebrook-Josey Gran Co. \[Tex. Civ. App.\] 114 SW 436.**

**88.**: **Our chance of attack.**: **Our chance of attack.**: **Our chance of attack.** the pleadings "" and the case made," admissibility of records," admissions," directions," and statements "" of agents and employees, relevancy," materiality,"" comments

**S9.** In action for goods alleged to have riers, direction of one as to disposition of been consigned to "A. G. B." bill of lading "goods to be made by shipper held inadmie-consignigning to "W. R. E." held properly re-ceived where plaintiff tealled that the goods "V. Carpenter \[Tex. Civ. App.\] 114 SWV 900. had been ordered and paid for by "A. G. B." but that seller had always addressed him as "W. G. B." Bullock v. Charleston & W. C. R. Felin v. Weir, 129 App. Div. 299, 114 NYS 426. Co., 82 S. C. 375, 64 SE 234. Where petition "In an action for breach of contract to fur-alleged that cattle in controversy were neg-dispently delayed and in consequence lost in weight and suffered in appearance, evil-dence that some of the cattle got down while ears were standing held admissible. St. Louis, etc., R. Co. v. Aryerson \[Tex. Civ. App.\] 114 SWV 673. In relation for damage to "Fruit by leaky pipes in refrigerator car used for storage after relation of carrier and "Adaems Exp. Co. \[N. J. Law\] 71 A. 683. Claim warehouseman had ceased, allegation of negligence in failing to repair pipes held "ediment" to admit evidence of any facts "of the same" to show negligence, including promise to repair, the duty arising not from the "primitive but from notice or knowledge of the defect. Missouri, K. & T. R. Co. v. Tripis "Was referred to third person by station "FTex. Civ. App.\] 117 SWV 199. In action for breach of contract to furnish cars, test-money of witness who made contract for him-self and plaintiff held relevant under general denisl. St. Louis, etc., R. Co. v. Taylor \[Tex. Civ. App.\] 117 SWV 894. Evidence that "plaintiff asked to be directed to superintend-again carriers for delay in shipment of "that person to whom plaintiff was directed evidence without objection or request that "was working there and seemed to have gen-not error to refuse instruction that another "person's connection with defendant to render" as to "amount of wheat shipped. Missouri, K. & T. R. Co. v. Stark Grain Co. \[Tex. Civ. App.\] 115 SWV 268. State-App.\] 120 SWV 1146.

**S9.** Where there was no evidence of any delay in transportation, evidence as to value "of use of goods during delayed transportation". Tenhet v. Atlantic Coast tion held inadmie-consigning. Missouri, K. & T. R. Co. v. Dennett \[Tex. Civ. App.\] 115 SWV 685.

**S9.** Where loading clerk identified loading sheet and his personal check marks thereon and testified that they were put on after he had examined and found goods loaded as "dated therein, held same was admissible.

**S10.** In action for goods alleged to have "fiers, direction of one as to disposition of "fiers", goods to be made by shipper held inadmie-consigning to "W. R. E." held properly re-ceived where plaintiff tealled that the goods "fiers", "Carpenter \[Tex. Civ. App.\] 114 SWV 900. had been ordered and paid for by "A. G. B." but that seller had always addressed him as "Agent in an attempt to locate the goods." Felin v. Weir, 129 App. Div. 299, 114 NYS 426. Co., 82 S. C. 375, 64 SE 234. Where petition "in an action for breach of contract to fur-alleged that cattle, letters of the officials of the car-tier were competent in so far as they tended to show that the officers of the carrier knew that the carrier did not have sufficient cars to meet the ordinary demands of the shippers. "Maldanl Val. R. Co. v. Hoffman Co. \[Av.\] 120 SWV 38. Relevant statements of claim agent during negotiations. Hill v. "M. Aram's Exp. Co. \[N. J. Law\] 71 A. 683. Claim agent who has authority to pass on a claim, order it paid, and to communicate with claimment in respect thereto, held to have authority to bind company by admission of liability. Tennet v. Atlantic Coast Line R. Co., 82 S. C. 465, 64 SE 232. Where shipper was referred to third person by station agents, statements by him while actively engaged in discharge of carrier's duties, as to time when train would leave and cause of delay. Missouri, K. & T. R. Co. v. Pettit \[Tex. Civ. App.\] 117 SWV 894. Evidence that plaintiff asked to be directed to superintend-again carriers for delay in shipment of "that person to whom plaintiff was directed evidence without objection or request that "was working there and seemed to have gen-not error to refuse instruction that another "person's connection with defendant to render conversation admissible. Gulf, etc., R. Co. v. Loomey \[Tex. Civ. App.\] 115 SWV 268. State-App.\] 120 SWV 1146.

**S9.** Where there was no evidence of any delay in transportation, evidence as to value "of use of goods during delayed transportation". Tennet v. Atlantic Coast tion held

# Carriers \[of GOODS\] $ 13. 13 Cur. Law.

petency," res geste," hearsay evidence," conclusions of witnesses," expert testimony," apply.

\_Trial and instructions._See 11 C. L. ssg_.\_Instructions should fairly submit the case," conform to the pleadings," and be supported by the evidence," should not

liability respecting the freight held adamls- isble as showing knowledge that it had been delivered for shipment. Id. In action for demand of hog alleged to be due to removal from car into which it had been wrongfully loaded through misdirection of carrier, evidence that, when hogs were being driven to station, witness heard hog squeal, to support claim that hog was hot and would have died anyway without identification of hog that squealed as one which died. Weisinger v. Southern R. Co., 33 Ky. L. R. 1038, 112 SWF 660.

96. Testimony of witness that he had never seen cattle shipped that were bruised up and buchered any more than shipment in question, without statement of condition of other shipments, held immaterial on issue of damages. Texas & P. R. Co. v. Stewart \[Tex. Civ. App.\] 114 SWF 413. In action for failure to deliver part of shipment, evl- dence of freight charges paid thereon by plaintiff is admissible damages if nothing else. Louisville & N. R. Co. v. Price \[Ala.\] 45 S S14. In action for negligent delays and rough handling of shipment, admission of testimony of plaintiff that he had ordered cars a week before cattle were shipped held not error where it was mere inducement. Missouri, K. & T. R. Co. v. Pettit \[Tex. Civ. App.\] 117 SWF 894.

01. Testimony that carrier had only quoted plaintiff one price, as bearing upon consideration for restricted liability, held properly received where written contract was not in evidence, subject to be stricken if in conflict therewith. Davis Bros. V. Blue Ridge R. Co., 81 S. C. 466, 62 SE 856.

01. Declarations of duly authorized agent of defendant made while interviewed relative to lost goods held admissible. Fein v. Weir, 129 App. Div. 299, 114 NYS 426.

01. Henry: Statement of one examining injured animals at request of shipper and carrier as to cause of injury. Davis Bros. v. raise issue. International & G. N. R. Co. v. Blue Ridge R. Co., 81 S. C. 466, 62 SE 856.

Folders and maps not published by defend- and are indadmissible to show that particular station is on defendant's line. Brandm v. A. Atchison, etc., R. Co., 134 Mo. App. 89, 114 SWF 540. Held error to admit account of sales of cattle where plaintiff was not present when some of them were sold and other evl- dence did not show correctness of items. Gulf, etc., R. Co. v. Lampkin \[Tex. Civ. App.\] 118 SWF 128.

1. Irandmissible: Opinion of witness as to what is reasonable time within which to try transport. Hennigh, Cleveland, etc., R. Co., 143 Ill. App. 283: Cleveland, etc., R. Co., V. McC- Nutt, 138 Ill. App. 66; St. Louis & S. F. R. Co. v. May \[Tex. Civ. App.\] 115 SVF 900: Texas & P. R. Co. v. Goldsmith \[Tex. Civ. App.\] 118 SWF 1146.

Admissible: Witness may give opinion as to what was cause of condition. Gulf, etc., R. Co. v. Rogers \[Tex. Civ. App.\] 113 SVF 583.

1. Irandmissible: Opinion of witness as to what is reasonable time within which to try be knocked down, thrown or falling transport. Hennigh, Cleveland, etc., R. Co., 143 Ill. App. 283: Cleveland, etc., R. Co., V. McC- Nutt, 138 Ill. App. 66; St. Louis & S. F. R. Co. v. May \[Tex. Civ. App.\] 115 SVF 900: Texas & P. R. Co. v. Goldsmith \[Tex. Civ. App.\] 118 SWF 114.

1. Where there is no evidence that cattle suffered damage on terminal line, instrucc- tion to deduct damage suffered on terminal line from total damage and render verdict for difference held properly refused. Mis- showful, K. & T. R. Co. v. Pettit \[Tex. Civ. App.\] 117 SWF 894.

1. Testimony that carrier had only quoted plaintiff one price, as bearing upon consider- action for restricted liability, held properly received where written contract was not in evidence, subject to be stricken if in conflict therewith. Davis Bros. V. Blue Ridge R. Co., 81 S. C. 466, 62 SE 856.

1. Declarations of duly authorized agent of defendant made while interviewed relative to lost goods held admissible. Fein v. Weir, 129 App. Div. 299, 114 NYS 426.

1. Henry: Statement of one examining injured animals at request of shipper and carrier as to cause of injury. Davis Bros. v. raise issue. International & G. N. R. Co. v. Blue Ridge R. Co., 81 S. C. 466, 62 SE 856.

Folders and maps not published by defend- and are indmissibleignore" or withdraw issues," assume facts in dispute" or invade the province of the jury," single out evidence \[10\] or be upon the weight thereof," and must not be misleading." Requested instructions covered by those given may be refused \[18\] or inconsistent."

evidence of delay in transportation of that, if animals were injured through car-household goods, charge on damages held rier's negligence, plaintiff could recover, improper in so far as it related thereto, held erroneous as assuming that injuries Missouri, K. & T. R. Co. v. Dement \[Tex. 1\]. caused depreciation in market values, Mis-Civ. App.) 115 SWV 635. Expert evidence of deperciation in market value due to delay App.\] 117 SWV 1058. Instruction which assembled sufficent to authorize submission of sumed as a fact proven beyond controversy issue "in the price per hundredweight." that automobile had been totally destroyed St. Louis, etc., R. Co. v. Smith \[Tex. 1\].

App.\] 115 SWV 882. Charge submitting issue is a to whether rules were denied water Patton \[Tex. 1\].

With in transit held supported by the evidence, Missouri, K. & T. R. Co. v. Hood \[Tex. 1\].

With in transit, let's account the question of whether rules were denied water (i.

Damages and penaltiesSee 11 C. L. 887.--By statute 18 in some states, a carrier is liable for a penalty for failure to adjust and pay 16 duly filed 17 claims for loss or injury 18 to goods within a specified time,19 provided the claimant ultimately re-covers the full amount demanded.20 A voluntary payment of the claim after the prescribed period does not affect the right to recover the penalty.21

Although a carrier has rendered itself liable by a wrongful diversion of the shipment, the shipper must exercise reasonable care to minimize the damages.21

SS 14. \_Freight and other charges.22--See 11 C. L. 638--Public regulation of rates and the determination of the reasonableness thereof are treated in another section.24 Subject to public control and the general limitation that the charge must be fair and reasonable,25 rates are a matter of agreement.26 A rate duly established under

evidence is erroneous as leading jury to be.

State. 81, and there is sufficient evidence to lieve that there was no evidence as to place of delivery. Connelly v. Illinois Cent. R. of penalty should also be submitted. Tenhet Co., 133 Mo. App. 310, 113 SW 233. Instructions as to liability and care required of 64 SE 232.

20. Claimant held entitled to penalty package was refused held not misleading. Bank of Vandusver v. Wells-Fargo Co. \[Mo. App.\] 120 SW 678.

01. Covered: Instruction on liability and 65 SE 239. Where claim established is only proximate cause. Gulf, etc., R. Co. v. Cunningham \[Tex. Civ. App.\] 133 SW 767. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 232.

01. Instruction on duty to furnish 81) for failure to adjust where consignee vitable car. Id.

01. Instruction as to general duty to furnish cars and subsequent instruction enum- 65 SE 239. Where claim established is only proximate cause. Gulf, etc., R. Co. v. Cunningham \[Tex. Civ. App.\] 113 SW 767. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instruction to adjust where consignee vitable car. Id.

01. Instruction as to general duty to furnish cars and consignee vitable car. Id.

01. Instruction on liquidity and 65 SE 239. Where claim established is only proximate cause. Gulf, etc., R. Co. v. Cunningham \[Tex. Civ. App.\] 113 SW 767. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Instructions that plaintiff could not recover unless delays were unreasonable and negil- 64 SE 239.

01. Allerton & Co. v. Atlantic Coast Line R. Co., 148 N. C. 485, 62 SE 597. After judgment and pending appeal. Rabon v. Atlantie Coast Line R. Co., 149 N. C. 485, 62 SE 742.

01. Where goods are carried to wrong destination, shipper is not required to re- 64 ship to initial point, thereby causing delay 64 of three or four weeks, where he was under obligation to make prompt shipment and another route offered quicker service. Sprero v. New York Cent. & H. R. R. Co., 64 Misc. 53, 117 NYS 1039.

01. Search Note: See notes in 22 L. R. A. 530; 3. L. R. A. (N. S.) 327; 30 A. S. R. 636; 44 Id. 921; 44 Im. Cars. 15.

See, also, Carriers, Cent. Dig. 853-916; 18. Density under Act of 1903 (24 Stat. 81) can only be recovered where claim is 64 for loss of or injury to goods as distinct from injury to consignee for delay. Cousar Mercantile Co. v. Southern R. Co., 83 S. C. 307, 64 SE 391.

25. Sherman anti-trust law does not give any right of action for damages sustained by payment of excessive unjust rate. Meeker v. Lehigh VaI. R. Co., 162 F 354.

01. Where plaintiff contracted, for use of whole vessel for transportation of coal, to pay for same at rate of $1.30 per ton, car- 65 maind charge for full capacity at such 64 rate where it prevented plaintiff from using same. Clancy v. Dutton, 129 App. Div. 23, 113 NYS 124. Failure to establish a rate as required by law cannot 18 Cur. Law. CARRIERS \[OF GOODS\] SS 14. 667

the Interstate Commerce Act is conclusively reasonable until declared otherwise by the commission, \[97\] and, likewise, the rate established by state commission is made conclusive until attacked by direct action. \[28\] An agreed rate not in conformity with the lawful rate \[98\] is void, \[80\] though made in good faith, \[21\] and the party entitled thereto may recover the difference. \[32\] The burden, however, rests upon him to show the invalidity of the agreed rate. \[33\] All rates \[34\] and privileges offered by an interstate carrier must be published in order to be legal, \[35\] and when so published are binding upon the parties and must be adhered to \[30\] as they stand at the date of ship-reepect thereto. Kansas City So. R. Co. v. Albers Com. Co. \[Kan.\] 99 P 819. In absence of rates established under Interstate Commerce Act, contract with shipper for Co. \[Kan.\] 99 P 819. Counciling by an agreed joint rate is valid. Id. Where no through rate between stations in different states and on different roads has been established in accordance with Interstate Commerce Act and initial carrier agrees to established rate, the second company accepting and completing shipment, held that rate is not invalid as not being the sum of the two local rates, and contract is \[36\].

S4. Publication of gross-and-net rates is unreasonable or that other shippers were charged a different one. Missouri Pac. R. Co. v. Reid \[Kan.\] 97 P 477. 27. Shipper seeking relief from unreasonable rates must apply to Interstate Commerce Commission. Baltimore & O. R. Co. v. La Due, 128 App. Div. 594, 112 NYS 964; Missouri, K. & T. R. Co. v. New Era Mining Co. \[Kan.\] 101 P 1011. Shipper cannot maintain an action to recover for alleged excessiveness of interstate rate conforming forgan Co. v. Deepwater R. Co., 15 L. C. C. merec Commission has first declared such established rate excessive. Robinson & Johesion &

### 668 Carriers \[OF GOODS\] $ 14.

13 Cur. Law. ment. \[87\] A rate once lawfully published continues to be the lawful rate until it has been practice in past of "meeting the rate," **provisions in their tariffs in regard to maact, and decisions of commissioning interpret-**rine insurance on lakes. Complaints filed**ing its provisions, unmmlstakably lay down**s**uphamental petition setting forth that unfortine that tariffs must now be adhered** **for this arrangement they did not receive to. Menefee Lumber Co. v. Texas & P. R. Co.,** **protection which had formerly been secured** **by their policies of insurance and asking grain for export from Ogelensburg, N. Y.,** **that matter be further considered. For reat-**?\*\* **to Boston, Mass., having been legally established, it was duty of defendants to apply** **requiring carr's to cease and desist from rate so published and in effect upon shipment made by complainant between those** **containing conditions opposed to their** **contraten** **and if, as claimed by complainant,** **tariffs, and carriers will be required to ten-**?\*\* **contraten** **was made with defendants for lower charge upon that shipment, such connexted** **that is vision** **found with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** **further** **with** \*\*further **with** **further** **with** **further** **with** **further **with** **further** **with** **further** \*\* 13 Cur. Law. Carriers \[OF 6000s\] SS 14.** 669

been lawfully canceled.\[88\] Tariffs are to be construed according to their language, and the intention of the framers and the practice of the carriers do not control,\[89\] but tariffs will not be construed so as to enable a shipper to ship his goods at a weight less than their actual weight,\[40\] and when the language of a tariff is ambiguous an agreement between the carrier and shipper may be looked to to explain the language, and remove the ambiguity.\[41\] A carrier is entitled to some compensation in addition to the actual cost involved in a recognisment.\[42\] At common law a connecting carrier is not bound by the contract of carriage made by the initial carrier \[45\] and may charge its regular rate,\[44\] but under the statute of South Carolina it is otherwise.\[45\] In some states, a carrier demanding excessive rates is liable to a penalty.\[46\] A carrier may ordinarily demand its freight charges in advance,\[47\] but, where it undertakes the carriage without so doing, it must carry to destination.\[48\] At common law, a carrier could demand prepayment of one and extend credit to another.\[49\] Unreasonably discriminatory charges \[50\] are prohibited by provisions were canceled and provtalion made \[remedy is against initial carrier. Reynolds for assessment of regular merchandise rates \[remedy is against initial carrier.\] Reynolds on such traffic. Field that as to shipments \[SE 445.\] \[usequent thereto, tariff provisions in effect\] \[usequent thereto, tariff provisions in effect\] \[usequent agent to the others, such contract of charges. Interstate Remedy Co. v. Ameri-

Is binding, Reynolds V. Seaboard Air Line \[R. Co., 81 S. C. 383, 62 SE 445.\] \[usequent thereto, tariff provisions in effect\] \[usequent thereto, tariff directions in effect\] \[ the Interstate Commerce Act and the statutes of most states. \[61\] It is not an unjust or illegal discrimination for a terminal carrier to maliciously refuse to advance charges of other carriers for particular consignee. \[52\] Where the carrier charges more than the established rate \[68\] or the same has been declared unreasonable by the commission, \[54\] an action to recover the excessive charge may be brought in the state court. \[65\] One, voluntarily \[66\] paying an excessive rate, has no remedy. In an action to recover excessive charges, plaintiff must aver facts showing same, \[67\] and, if the rate charged is one established under the Interstate Commerce Act, he must allege \[68\] and prove \[69\] that the commission has declared the same void. In Vermont, the "agrigeved party" \[60\] is expressly authorized to recover overcharges.

Demurrage charge is authorized by statute \[61\] in many states, but, independent thereof and of special contract, a reasonable \[62\] charge may be made for an unreasonable detention of cars \[63\] not due to the carrier's fault, \[64\] especially where the

- \[leftmargin=\*\]
  carrier is liable to a per diem charge to the owners thereof." Rules and regulations of the carrier in respect thereto are construed in favor of the shipper." Likewise, in some states, a carrier is liable to a demurrage charge." Where goods are not removed within a reasonable time, the carrier may charge storage although not placed within a building," unless the failure to remove is due to the carrier's wrong-ful act."

A carrier has a lien for freight and for storage charges where goods are not removed within a reasonable length of time," but such lien is inferior to the rights of a conditional sale vendor who did not consent to the shipment."

Part III. Carriage of Live Stock.

SS 15. _Duty to carry and contract of carriage generally._12--See 11 C. L. 859__\_

Under an act of congress the secretary of agriculture is authorized to make quarantine rules, and, when duly promulgated, carriers must comply therewith."

SS 16. _Care required of carriers._14--See 11 C. L. 859__\_

Except as to injuries due to the inherent nature and propensities of the animals," the carrier assumes the same liability as in the carriage of other goods," which is ordinarily that of an insurer."

#4. Where carrier provides in its tariff

housing the same. Hockfield v. Southern for reconsignment without any requirement

for repayment of freight or guaranty of

70. Kawcabany v. Boston & M. R. Co., 199

same, it may not lawfully charge demur-

Mass. 586, 85 NE 846; Seaboard Air Line R.

rage for time during which it holds ship-

C. v. Shackelford, 5 Ga. App. 395, 63 SB

ment while parleving with its connections

252. Consignence of goods cannot recover

as to advancement of its freight charges.

Beekman Lumper Co. v. St. Louis S. W. R.

86. \_C. C. C. C.\_32.

01. \_C. C. C.\_52.

01. \_C. C. C.\_52.

01. \_C.

Natural vices and propensities, however, do not relieve the carrier unless they are the sole proximate cause of the injury." Carrier is liable for negligence " and, in some states, only for negligence," and is not liable for the negligence of the shipper," but mere knowledge by the owner of the carrier's neglect does not relieve the latter." The carrier must furnish a reasonably safe car for the carriage of stock," and upon request must designate the same," and where it designates the wrong car and compels removal," it is liable for such damages as naturally follow." Likewise, it must furnish reasonably safe pens for the reception of stock." If the shipper loads without inquiring, he assumes the risk." By special contract, a carrier may reasonably limit its liability," but where a shipper who has contracted to care for the stock becomes separated therefrom, the carrier must take charge thereof." Where live stock is delivered to a carrier for transportation, its liability commences when the stock is delivered to it at its pens or warehouse for shipment." The carrier must furnish a shipper who accompanies and agrees to care for stock reasonable opportunities and facilities for taking care of the same."

nected with any disease or Injury con-tracted or received in transit. McDowell svfficient. Weisinger v. Southern R. Co., 33 v. Louisville & N. R. Co. \[Ky.\] 113 SW 519.

7$. Must affirmatively appear that it was $5. In action for death of hog alleged to sole proximate cause. Galveston, etc. R.

wohe died as result of removal from car Co. v. Powers \[Tex. Civ. App.\] 117 SW 459.

7$. Evidence that in switching car was "klicke" so hard as to knock it several feet and to throw man from box held to sustain finding that horses were injured by removed, or if carrier offered to redirect switching. Louisville & N. R. Co. v. Pedige \[Ky.\] 113 SW 116. Where jack in crate became frightened and threw him-self, it was earlier's duty to use ordinary care to protect the animal from further inj-jury. Kelly v. Adams Exp. Co. \[Ky.\] 119 SW 660.

8$. St. Louis S, W. R. Co. v. Lewellen Bros. \[Tex. Civ. App.\] 116 SW 116. Carrier is not absolutely required to deliver in good condition, but its duty is to use ordinary care and diligence. Texas & P. R. Co. v.

Stewart \[Tex. Civ. App.\] 114 SWV 413.

Where owner accompanies live stock, car-rier is not liable for loss due to excessive heat in absence of negligence. Cleve v. Chicago, B. & Q. R. Co. \[Neb.\] 120 NWV 559.

8$. Where care taker left horses loaded but waiting on sidetrack, without notice to carrier, latter is not liable for injuries

car at divisional point, and upon arrival of which might have been prevented by his presence. Quinby v. Union Pac. R. Co., 83

8$. Where a carrier by its contract undertakes to use ordinary care in transporting an animal, the fact that the owner is present and knows of the carrier's failure to comply with its contract does not distract from the carrier's liability, so long as the owner's conduct does not amount to an estropel. Kelly v. Adams Exp. Co. \[Ky.\] 119 SW 747.

8$. Duty to furnish cars suitable to transport stock Imposes duty on carrier to bed the car where necessary to render it reasonably safe. Allen v. Chicago, B. & Q. R. Co., 82 Feb. 726, 118 NWV 555. Where car stall was reasonably safe for transportation of horses, carrier is not liable for injuries caused by horse kicking same loose during its flight. Southern Exp. Co. v. Fox \[Ky.\] 115 SW 184.

8$. Exercise of reasonable care is not lracted or received in transit. McDowell svfficient. Weisinger v. Southern R. Co., 33 v. Louisville & N. R. Co. \[Ky.\] 113 SW 519.

8$. D. In action for death of hog alleged to sole proximate cause. Galveston, etc. R.

have died as result of removal from car Co. v. Powers \[Tex. Civ. App.\] 117 SWV 459.

7$. Evidence that in switching car was "klicke" so hard as to knock it several feet and to throw man from box held to sustain finding that horses were injured by permit it to remain until it could be safely neglipement switching. Louisville & N. R. Co., 77 Feb. 726, 113 SWV 116. Where jack is lessness in removing. Weisinger v. Southing car-in crate became frightened and threw him-self, it was earlier's duty to use ordinary care to protect the animal from further inj-jury. Kelly v. Adams Exp. Co. \[Ky.\] 119 SWV 116.

8$. Shipper has right to rely on pen being sufficient. Fact that shipper who was unloading stock was intoxated and did not notice the open gates is no defense. El Paso & N. E. R. Co. v. Lumbley \[Tex. Civ. App.\] 119 SWV 1050. Evidence held sum-element to show that cattle were infected with disease Under the federal statute a carrier,"" knowingly and willfully" confining stock without unloading for rest, feeding, and watering, unless prevented by storms, accident, or other unavoidable cause,"65 for more than twenty-eight hours, is liable to a penalty." The period may be extended with the consent of the shipper," and sheep need not be unloaded in the nighttime, provided the period is not thereby extended beyond thirty-six hours." In the absence of custom it is the duty of the carrier last receiving shipment during the period to comply with the statute," but where the period has already expired, a connecting carrier is not liable unless it confines for another period.1 In the absence of statute, the carrier must not negligently confine stock,2 and must provide adequate facilities for feeding and watering,3 even though the shipper has undertaken to feed and water.4 Where the shipper fails to provide food as agreed 5 or where the carrier subsequently undertakes 674 CARRIERS \[OF LIVE STOCK\] SS 17. 13 Cur. Law. to do so,\* it must provide the same. Where the carrier has agreed to unload upon request, the request must be made as stipulated, unless waived.\* Failure to comply with the statute or a negligent failure to unload for rest, feeding, and watering, renders carrier liable for resulting injuries.\* The liability of the carrier for negligence extends to a time when the cattle are in pens for feeding pursuant to the statute.\*

The action for recovery of penalty must be brought in the proper court.\*\*16 As relates to procedure, the action is civil, and not criminal,\*\*11 and, hence, the general rules applicable to civil pleading apply.\*\*12 Exceptions excusing compliance with the statute are defensive matter.**13 The shipment, and not the car or train load, is the integer for imposition of penalty.**14****

SS 17. \_Delivery.\_15\*\*\*\*

SS 18. \_Liability of carrier or connecting carrier.\_16\*\*\*\*

SS 19. \_Limitation of liability.\_17\*\*\*\*

SS 20. \_Procedure in action relating to carriage of stock.\_18\_\_See 11 C. L. #41\_\_All matters not peculiar to the character of the shipment are elsewhere treated.\*\*16 The proceeding under the Act of Congress June 29th, 1906, regulating transportation of live stock is a civil action,**20 and it is the duty of the court thereunder to fix the penalty between the statutory limits.**21****

SS 21. \_Damages.\_22\*\*\*\*

Part IV. **Carriage of Passengers.**

SS 22. _Who are passengers._23\_\_See 11 C. L. #41__--The relation of carrier and passenger is contractual,\*\*24 **and hence there must be**25 **an offer**26 \*\*and an accept-\*\*27 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of the**28 **of**28 **of the**28 **of**28 **of the**28 **of**28 **of the**28 **of**28 **of**28 **of the**28 **of**28 **of**28 **of the**
13 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 22.

475

ance "1" as a passenger." While a contract will be implied from the receiving of one for carriage," one boarding without invitation," or after he has been ejected," does not ordinarily become a passenger, and one who enters a passenger elevator after he has been forbidden by the owner," or without legitimate business in the building," is not a passenger. An invitation must come from one having authority to issue the same." While payment of fare is not essential," the party must intend to pay " upon demand and have ability to do so." Railroad postal clerks while

521; 31 IAG. 321; 46 Id. 56; 2 L. R. A. (N. S.) defendant was not liable for his injuries
873; 3 Id. 588; 5 Id. 1025; 6 Id. 1146; 15 Id. 960; 61 A. S. R. 75; 1 Ann. Cas. 451, 605; 4

16. 1131; 5 Id. 17; 6 Id. 698, 799, 883; 7 Id. 528, 857; 8 Id. 89; 9 Id. 488, 540, 568, 1104; 10 Id. 161, 870.

See, also, Carriere, Cent. Dig. $ 973-993, 1076, 1109, 1115, 1116, 1284; Dec. Dig. $ 238-247; 6 Cyc. 536, 637, 540-545; 5 A. & E. Enc. L. (2ed.) 486.

24. Canaday v. United R. Co., 134 Mo. App. 282, 114 SVW 88.

01. Where plaintiff desiring to become a passenger signaled street car and motorman inclined his head in response, and on car stopping plaintiff boarded same, held that he was a passenger. Lockwood v. Boston El. R. Co., 200 Mass. 537, 86 NE 934. Stopping of electric car at place where passengers are customarily received and opening of gates is an invitation for persons designing to travel by such car to board, and one so doing in good faith becomes a passenger. Petersen v. Ciblpin, & S. Trac. Co., 238 Ill. 403, 87 NE 345.

01. Where car is stopped so as to indicate that it is ready to receive passengers, an invitation is issued. Robinson v. Helena L. & R. Co., 38 Mont. 22, 99 P S37. Evidence held to authorize submission of question whether car stopped to receive passengers. Blue Ridge L. & P. Co. v. Price, 108 Va. 652, 62 SE 938.

01. Where conductor on street car saw plaintiff approach and board car and made no objection, verbally or by gesture, held to show acceptance. Lockwood v. Boston El. R. Co., 200 Mass. 537, 86 NE 934. One attempting to board car at point where passengers are not received, without knowledge of parties in charge thereof, is not a passenger. Robinson v. Helena L. & R. Co., 38 Mont. 22, 99 P 837. Instructions held to fully and explicitly submit question of acceptance of plaintiff as a passenger. Lockwood v. Boston El. R. Co., 200 Mass. 537, 86 NE 934.

01. One who boards the car of one carrier thinking that he is boarding the car of another carrier is not received by the former carrier as a passenger and is not un-der-its control and entitled to its cars as a passenger. Metropolitan West Side El. R. Co. v. Sutherland, 139 Ill. App. 55. Whether plaintiff was lawfully on passenger elevator and had become a passenger at time of injury held question for jury. Stelask v. Marshall Field & Co., 142 Ill. App. 154.

01. Petersen v. Elgin, A. & S. Trac. Co., 142 Ill. App. 34.

01. Where car was forced to stop at unusual place because of exigencies of city traffic, and plaintiff attempted to board without knowledge on part of defendant or servants, he was not a passenger and that he was not a passenger. Lockwood v. Marshil Field & Co., 142 Ill. App. 154.

412 Ill. App. 34. Where car was forced to stop at unusual place because of exigencies of city traffic, and plaintiff attempted to board without knowledge on part of defendant or servants, he was not a passenger. and that he was not a passenger. Lockwood v. Marshil Field & Co., 142 Ill. App. 154.

52. Whether plaintiff had been previously forbidden to rides on elevator. Ferguson v. Trnax, 136 Wis. 637, 118 NWV 251.

01. Whether plaintiff who was injured on passenger elevator was on his way to visit a doctor. Ferguson v. Truax, 136 Wis. 637, 118 NWV 251.

01. Introduction of employee not connected with running of train does not create relation of passenger. Thompson v. Nashville. Stoc., R. Co. \[Ala.\] 49 S 340. Where one who desired to take passage on freight train dealer byarding until train was about to start, when, fearing that he would not have time to reach cabose, accepted invitation of engineer to board engine, held not being carried under arrangement with the government for transportation are usually regarded as passengers,\[38\] provided they are riding in the line of their duties.\[39\] While there seems to be a conflict of authority as to whether an employee riding to and from his work with the consent of his employer and without the payment of fare is a passenger,\[40\] he is usually so regarded where the transportation is given as a part of his compensation.\[41\] One employed by express company to assist in loading and unloading expressive from the cars is not a passenger while walking in the yards.\[42\]\_Trains other than passenger trains.\[See 11 C. L. 642--Carriers may exclude passengers from freight trains,\[43\] and a brakeman has no authority to bind the carrier in violation of established and enforced rules to the contrary.\[44\] Where one is conditionally accepted, he must comply therewith,\[45\] and must ride in the proper place.\[48\] Permission to ride on freight trains given without consideration may be revoked at any time that the holder is not an actual passenger thereunder.\[47\]\_The relation begins.\[See 11 C. L. 643--Since the relation is established by contract, it begins upon the acceptance of the offer,\[48\] and, ordinarily, one who goes to the station a reasonable time before the departure of the train on which he intends to take passage, and makes his intention known, is a passenger.\[49\] Certainly one who,

can be had for ejection. Berkelhamer v. Joline, 113 NYS 921.

3S. Hoskins v. Northern Pac. R. Co. \[Mont.\] 102 P 988.

3S. Where he is off duty, he must show that carrier owed contractual or statutory duty to carry him at such time, or that carrier recognized the request for transportation embodied in a photograph commission, relating to transportation while of duty. Hoskens v. Northern Pac. R. Co. \[Mont.\] 102 P 988.

40. One riding with H on pass issued to H and reciting "Pass H and five men, bonders," held a passenger without regard to H's authority to hire him at so much per day and transportation. Harris v. Puget Sound Elec. R. Co. \[Vdash.\] 100 P 841.

Where railroad company verbally consents for quarry company to operate cars on its tracks, and later transports employes to and from work, employee being so transported and not connected with operation of train is a passenger of railroad company,

for jury as to plainffs right to ride there.\[Gregory v. Georgia Granthe R. Co. \[Gq.\] 64 SE 686. Where brakeman on construction train working some distance from home is given a free pass to go home Saturday inight and back to work Sunday, it will be presumed that he uses same as employee.\[Vroom v. New York Cent. & H. R. Co., 129 App. Div. 558, 115 NYS 1063. Plainff was employed by residents of a borough as a special police officer, and also helped to preserve order on street cars when requested, for which he received small pay and free transportation. He was asked to board car on outward trip, and on return trip was injured. Heeld for jury whether he was riding as a passenger or as employee.\[Goehring v. Beaver Val. Trac. Co. \[Pa.\] 72 A 259.

41. Harris v. Puget Sound Elec. R. Co. \[Vdash.\] 100 P 838. Pass to foreman of bonder crew contemplating taking passage, boards a car which has stopped for the purpose of taking on passengers, is a passenger.\[50\] One allowed through courtesy to remain in a Pullman car until hers is attached is not yet a passenger thereof.\[51\]

\_Cessation or interruption of relation.\_See 11 C. L. 548,--A passenger leaving the premises of the carrier usually ceases to be a passenger;\[52\] but one leaving the train or car with permission of the carrier,\[53\] or for a proper purpose,\[54\] is still a passenger. A through passenger remains such while awaiting connections at junctions.\[55\] The relation continues in the case of a steam railway until the passenger has left the premises,\[56\] or has a reasonable time to do so. When the relation ceases in alighting from a street car depends upon circumstances.\[57\]

SS 23. \_Duty to receive and carry passengers.\[58\]\_See 11 C. L. 544--Generally it is the duty of a carrier to receive and carry to destination\[59\] all who desire transportation, but it may reject one afflicted with a serious contagious disease.\[60\] Misconduct of passenger on a prior trip is not ordinarily a sufficient ground for refusing to accept.\[61\]

\_Through trains.\_See 11 C. L. 544--Where a carrier furnishes ample local service,\[62\] it may operate through trains, and it is the duty of a passenger boarding a train to

\\begin{tabular}{l l} a ticket. Keifner v. Pittsburgh, etc., R. Co. \[Pu.\] 72 A 253. & but continues until she has had a reasonable opportunity to receive infant child from fellow passenger who is handing same to her. Catterson v. Brooklyn \\
5L. Cincinnati, etc., R. Co. v. Raine \[Ky.\] & Heights R. Co., 132 App. Div. 399, 116 NY8 \\
760\. Evidence sufficient to show that plain- \\
52\. Du Bose v. Atlantic Coast Line R. Co., 81 S. C. 271, 62 SE 255. Evidence that plain- \\
71ff after becoming a passenger left depot to secure bundle off premises and was injured while attempting to board train from \\
7246 opposite depot held to authorize instruction on losing right as passenger by leaving premises. Id. & But continues until she has had a reasonable opportunity to receive infant child from fellow passenger who is handing same to her. Catterson v. Brooklyn \\
733\. Within scope of conductor to grant permission to passenger to temporarily leave car at place where passengers are not customarily discharged and received. Birmingham R., L. & F. Co. v. Jung \[Ala.\] 49 \\
747\. Person momentarily stepping off street car to permit some passengers to alight does not cease to be a passenger. Tompkins v. Boston El. R. Co., 201 Mass. 114, 87 NE 488. Passenger who alights at intermediate station to exercise, intending to continue his journey, continues to be a passenger. Gannon v. Chicago, etc., R. Co. \[Iowa\] 117 NWW 968. He may at regular stopping places leave the train for refreshments, exercise, etc., and when a station is announced in such a way that would amount to an invitation to other passengers bound for that station to alight, he too may accept the invitation and rely upon implied assurance of safety. St. Louis, etc., R. Co. v. Glossamp \[Ark.\] 114 SV 247. & A passenger leaving the Premises of the carrier usually ceases to be a passenger;\[52\] but one leaving the train or car with permission of the carrier,\[53\] or for a proper purpose,\[54\] is still a passenger. A through passenger remains such while awaiting connections at junctions.\[55\] The relation continues in the case of a steam railway until the passenger has left the premises,\[56\] or has a reasonable time to do so. When the relation ceases in alighting from a street car depends upon circumstances.\[57\]

SS 23. \_Duty to receive and carry passengers.\[58\]\_See 11 C. L. 544--Generally it is the duty of a carrier to receive and carry to destination\[59\] all who desire transportation, but it may reject one afflicted with a serious contagious disease.\[60\] Misconduct of passenger on a prior trip is not ordinarily a sufficient ground for refusing to accept.\[61\]

\_Through trains.\_See 11 C. L. 544--Where a carrier furnishes ample local service,\[62\] it may operate through trains, and it is the duty of a passenger boarding a train to

\\begin{tabular}{l l} a ticket. Keifner v. Pittsburgh, etc., R. Co. \[Pu.\] 72 A 253. & but continues until she has had a reasonable opportunity to receive infant child from fellow passenger who is handing same to her. Catterson v. Brooklyn \\
5L. Cincinnati, etc., R. Co. v. Raine \[Ky.\] & Heights R. Co., 132 App. Div. 399, 116 NY8 \\
760\. Evidence sufficient to show that plain- \\
778\. Evidence sufficient to show that plain- \\
781 H had not safely alighted from car before she was injured. Farrington v. Boston El. \\
782\. Evidence sufficient to show that plain- \\
783\. Evidence sufficient to show that plain- \\
784\. Evidence sufficient to show that plain- \\
785\. Evidence sufficient to show that plain- \\
786\. Evidence sufficient to show that plain- \\
787\. Evidence sufficient to show that plain- \\
788 H. Co., 202 Mass. 315, 88 NE 578. & But continues until she has had a reasonable opportunity to receive infant child from fellow passenger who is handing same to her. Catterson v. Brooklyn \\ ascertain whether it stops at his destination.\[45\] Where the carrier has specially contracted,\[44\] it must stop,\[45\] and failure to do so is negligence.\[46\]

\_Ejection of passenger.\_See 11 C. L. 544--A carrier may lawfully eject one not entitled to ride,\[91\] and, hence, no liability is incurred in ejecting one who refuses to pay fare \[68\] or fails to produce proper evidence of having paid it,\[90\] although a carrier must give a passenger reasonable opportunity to produce.\[91\] The ticket is not conclusive in Arkansas as between the conductor and passenger,\[72\] although it is in some states.\[73\] A through passenger while waiting at junction has a right to use the waiting room,\[73\] and, if he is compelled to leave the same,\[73\] his ejection is as wrongful

43. Black v, Atlantic Coast Line R. Co., 82 S. C. 478, 64 SE 418; Dillman v. Chicago, 82 L. R. Co. \[Ind. App.\] 88 NE 873.

01. Where carrier sells commutation ticket which states that it is not good on specifiedly enumerated trains, including all but one, it constitutes special contract to carry on such train. Dillman v. Chicago, 82 L. R. Co. \[Ind. App.\] 88 NE 873.

01. Dillman v. Chicago, I. & L. R. Co. \[Ind. App.\] 88 NE 873.

01. Failure to stop at flag station for which passenger has ticket is evidence of negligence. Davis v. Atlanta & C. Air Line R. Co. \[KS.\] 120 SWV 298.

01. Where one entitled to ride on stock car was finally permitted to take two assistants onto car without transportation contracts or his promise to procure tickets for them at the next station, such assistants were not entitled to continue after passing such station, though they were all asleep when they passed the station. Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F. 39. Where one entitled to ride in stock car permitted others not so entitled to get in and thereafter closed door and knowingly refused to unfasten same on request of con-ductor so that he could examine ticket and see who were in car, he forfeited his right of transportation, and instruction requiring a conspiracy between all is too restrictive.

01. Conductor kept out of money tender on train the regular rate for cash fares, which was higher than ticket fare, and passenger objected saying that unless excess was returned he would ride to point beyond destination, to which conductor did not reply.

Held that silence was not an agreement to so carry. Allison v. Georgia Railroad & Banking Co. \[Ga.\] 65 SE 85.

68. Brady v. Fresno Clty R. Co., 9 Cal. App. 417, 99 F 400; Allison v. Georgia Rail-road & Banking Co. \[Ga.\] 65 SE 85; Bolles v. Kansas City. So. R. Co., 154 Mo. App. 596, 115 SWV 459; Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F 39. Bagrage check is insufficient evidence of right to trans-portation, though baggage is only checked upon presentation of ticket. Bolles v. Kan-asa City So. R. Co., 134 Mo. App. 696, 115 SWV 459. Street car passengers must procure transfers as evidence of payment of terres, and conductor need not accept state.

The ticket is not conspicuously enumerated trains, including all but one, it constitutes special contract to carry on such train. Dillman v. Chicago, 82 L. R. Co. \[Ind. App.\] 88 NE 873.

69. Where carrier sells commutation ticket which states that it is not good on specifiedly enumerated trains, including all but one, it constitutes special contract to carry on such train. Dillman v. Chicago, 82 L. R. Co. \[Ind. App.\] 88 NE 873.

01. Where one might to ride on stock car was finally permitted to take two assistants onto car without transportation contracts or his promise to procure tickets for them at the next station, such assistant were not entitled to continue after passing such station, though they were all asleep when they passed the station. Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F. 39. Where one entitled to ride in stock car was finally permitted to take two assistants onto car without transportation contracts or his promise to procure tickets for them at the next station, such assistant were not entitled to continue after passing such station, though they were all asleep when they passed the station. Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F. 39. Where one entitled to ride in stock car was finally permitted to take two assistants onto car without transportation contracts or his promise to procure tickets for them at the next station, such assistant were not entitled to continue after passing such station, though they were all asleep when they passed the station. Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F. 39. Where one entitled to ride in stock car permitted others not so entitled to get in and thereafter closed door and knowingly refused to unfasten same on request of con-ductor so that he could examine ticket and see who were in car, he forfeited his right of transportation, and instruction requiring a conspiracy between all is too restrictive.

01. Where one might to ride on stock car was finally permitted to take two assistants onto car without transportation contracts or his promise to procure tickets for them at the next station, such assistant were not entitled to continue after passing such station, though they were all asleep when they passed the station. Texas & P. R. Co. v. Defenbach \[C. C. A.\] 167 F. 39.

as if ejected from a train."11 Although an ejection is lawful, the carrier must not use excessive force " and must put the passenger off at a proper place."12 Where reasonably necessary, the carrier may invoke police aid in effecting an ejection," but such officers are usually held to be acting for the carrier."13 While the carrier's responsibility usually terminates as soon as the party is safely ejected, in the case of a helpless person it must thereafter exercise due care."14 A carrier is liable for all injuries proximately "15 resulting from a wrongful ejection. Punitive damages are not recoverable unless the carrier directs, participates, or approves the malicious acts of its servants."16

\_Delay and misrouting.\_17 C. L. 445 It is the duty of a carrier to run its trains on schedule time, and it is liable for negligently failing to do so."18 It is also liable for negligent failure to send ticket from another station as agreed, thereby causing delay."19 It must exercise reasonable care to prevent misrouting "19 and to advise passengers of transfer points."19

\_SS 24. Rates and fares, tickets and special contracts.\_19- See 11 C. L. 446- Al-

75. St. Louis S. W. R. Co. v. Foster \[Tex. Clv. App.\] 112 SW 797.

01. Leyser v. Chicago, B. & Q. R. Co. \[Mo App.\] 119 SW 1068: Braaly v. Fresno City R. \[Co., 9 Cal. App.\] 119 SW 1068: Braaly v. Fresno City R. \[Co., 9 Cal. App.\] 41, 92 P 400. Where passenger was drunk and in ejecting hlm conductor hit him over the head with a billy and passenger died, whether conductor exceeded his lawful authority was question for jury. Verdict for plaintiff held authorized. Devine v. Chicago City R. Co., 141 Ill-

01. Leyser v. Chicago, B. & Q. R. Co. \[Mo App.\] 119 SW 1068: Braaly v. Fresno City R. \[Co., 9 Cal. App.\] 41, 92 P 400. Where passenger was drunk and in ejecting hlm conductor hit him over the head with a billy and passenger died, whether conductor exceeded his lawful authority was question for jury. Verdict for plaintiff held authorized. Devine v. Chicago City R. Co., 141 Ill-

01. Carrier ejecting passenger for non-payment of fare at place other than passenger station, in violation of Pub. St. 1901.

a. 160, & 6, is liable only for injuries proxl-

78. Wheering persons in stock car, some of whom had transportation contract and some

01. Leyser v. Chicago, B. & Q. R. Co., 141 No. App.\] 119 SW 1068: 1999: 1 680 CARRIERS \[OF PASSENGERS\] SS 24. 13 Cur. Law. though payment of fare is not essential to the relation of carrier and passenger,\* and especially to the transporting carrier,\* free transportation,is prohibited in some states,\*o and, likewise, discriminatory charges.61 Trainmen ordinarily have no authority to carry one free.92 In Arkansas special charges may be collected of those boarding at a flag station.93 In the absence of constitutional or statutory restrictions,94 a carrier may issue annual passes. While a passenger on a street car may tender more than the fare and demand reasonable change,95 the carrier may reasonably limit the amount of change it will give.96 A carrier cannot resort to force to collect a fare,97 and the passenger may defend himself from the assault.98 Although a contract entered into through a duly authorized agent98 must be performed according to its terms,1 where a carrier abandons a trip in violation thereof, the passage 1d. 557; 5 Id. 487, 768; 6 Id. 119, 873, 943, 946; 8 Id. 649; 9 Id. 859, 972, 1130; 10 Id. 277, 842, 923, 941; 11 Id. 557. See, also, Carriers, Cent. Dig. \*\* 997-1084; Dec. Dig. \*\* 2484-279; 6 Cyc. (474-549, 570-680; 28 A. & E, Enc. L (2ed.) 150, 88. See ante, # 22. 88. Where carrier transports passengers of another road in consideration of use of its tracks, it is not relieved. of responsibility to such passenger peea.are fare in paid to the other road. Louisville, etc., R. Co. V. Linton \[Ind. App.\] 88 NE 523. 90. Antl Pass Law, Laws 1907, p. 342, 94. Act Cong. June 29, 1906, p. 3591, # 1 c. 93, prohibiting issuance and use of free pass, held a valid police regulation and of power to prevent unjust discriminations and not unconstitutional as impairing obligations of contract. State v. Martyn. 82 The 225, 117 NW 719. Contract with phy-sician whereby he was to give free professional services to railroad employees, for which company gave him $25 per month and annual pass, held a free pass within Cobbey's St. 1907, $18 1064, 10658. State v. Martyn. 82 Neb. 295, 117 NW 719. Act 26, 1907 (Acts 1907, p. 95, 42) prohibiting railroad companies from carrying persons free of charge, does not provide that a person who boards a railway train with intentions of accepting, or does ac-cept transportation at hands of conductor without paying the fare prescribed by law, shall be guilty of a felony. Carpenter v. Trinity & B. V. R. Co. \[Tex. Civ. App.\] 115 SW 355. 91. Where contract provided that plain-tiff should publish such time cards, etc., as defendant should furnish "to be charged at regular rates to the amount of $400," and that "In full consideration of the above ad-vertising" company was to issue $400 worth of transportation, construed. in view of Laws 1905, p. 564, c. 862, making it a penal offense to charge one more than another for transportation, to render carrier liable for advertising in excess of $400 at regular rates. Hicka Print. Co. V. Wisconsin Cent. R. Co., 138 Vis. 584, 120 NW 512. Section 2 of the act precludes the allowance of communatiq n rates to school children unless the same rates are open to all children within the age limit. Former administrative ruling upon this question affirmed. In ree regulations Governing Sale of Communication Tickets to School Children, 17 I. C. C. 144. 92. Neither master mechanic, conductor, nor engineer has any implied authority. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 52. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 73. 75. 76. 78. 79. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 81. 83. 84. 86. 88. 89. 91. 84. 86. 89.

senger is not entitled to remain on the car on the return trip without payment of fare.2

_Conditions and limitations_.See 11 C. L. 848.--In the absence of statute,3 a carrier may make reasonable limitation upon its liability by special contract,4 except as against negligence,5 but such restriction must ordinarily be assented to by the one affected thereby.6 Where a passenger purchases a ticket and pays full fare therefor, the ticket is ordinarily not regarded as the contract between him and the carrier but as a mere token of the contract,7 and the passenger is entitled to show what the contract was.8 But where the ticket purports on its face to express the contract between the parties, its conditions and restrictions if supported by a consideration will be enforced if reasonable and lawful.9 A provision in a commutation ticket that it will be forfeited and taken up if presented by other than the one to whom issued applies only when offered with his consent and convinance,10 but when it has been so offered it may be taken up any time thereafter.11 Reasonable time limits are valid, and if a ticket has expired the conductor may refuse to accept it, and if fare is refused he may eject the passenger from the train.12 Condition, "Void if detached," in a coupon ticket, must be reasonably construed.18

_Transfers_.See 11 C. L. 848.--The duty to issue transfers is prescribed and regulated by statute in many states,14 and the public service commission of New York

that he negligently failed to do so, held to

10 is authorized to establish through routes.\[15\] An action to recover a penalty for refusing to issue transfer must be timely brought.\[16\] In procuring the consent of abutters to an extension, a carrier may bind itself to issue transfers.\[17\] A carrier may adopt reasonable rules regulating the issuance of transfers.\[18\] Receivers, being trustees for the owners and the creditors, should curtail transfer privileges where it will increase earnings and there is no law requiring a continuance.\[19\]

_Regulation of sale of tickets; brokerage.\[80, 81\]_ C. L. 556--The interstate commerce commission has jurisdiction to establish and regulate through rates by interstate carriers.\[20\]

_SS 25. General rules of liability for personal injuries.\[21\] A. Nature and extent of liability.\[80\]_ See 11 C. L. 556--While not an insurer \[21\] of the safety of its passengers,\[22\]\_

one continuous ride from any point on its

can be done only at a serious loss and the road, or on any line or branch operated by

power of commission is doubtful, until it, to any other point thereof, held inapplicable power is settled by court. Pennsylvania where plaintiff changed from one

mia Steel Co. v. New York City R. Co., 165

line to another at point of intersection.

F 470. Receivers of two lines authorized Kling v. Nassau Elec. R. Co., 128 App. Div.

to discontinue transfers upon 10 days' no-130, 112 NYS 589. VWhere carrier issued a

tice to public by posting on lines affected.

transfer where it was not legally obliged

In re Dry Dock R. Co., 165 F 487.

to do so, a refusal thereafter to recognize

20. The Northern Pacific Railway Commense does not render it Table to penalty

pany, the Union Pacific Lines, and the Chulander Railroad Law (Laws 1890, p. 1113, c. 565), for charging more than lawful rate.

oargo & Northwestern Railway Company

dredred to join in the sale of through pas-16.

senger tickets between Seattle and other

15. Action by public service commission,

gends in the northwest and eastern des-establishing a through route for transport-

inations, via Portland, Or., and to accord

ing of passengers over two independent

through facilities, like the checking of bag-street railway lines and apportioning joint

sage, over this route. In re Through Pas-fare, as authorized by Laws 1907, p. 917,

senger Routes Via Portland, Oregon, 16 L.

c. 429, $ 49, 1s judicial or quasi-judicial,

C. C. 300. Complaint, desiring to travel making cerforioral proper remedy for re-

from New Castle, Pa., to New York City via

viewing same. People v. Willcox, 129 App.

the Pennsylvania Railway from Pittsburg,

Div. 267, 113 NYS 861.

16. Action for penalty imposed by $ 104,

railroad law (Laws 1890, p. 1114, c. 565),

to Pittsburg and a mileage book from Pitts-as amended by Laws 1892, p. 1406, c. 676,

pawting carrier to issue transfers, is not

bared in one year, under $ 39, limiting

time in which to commence actions against

acrmorations upon the ground that his

carriers asking or receiving more than law-

ful rate, but is barred in three years, under

codemulations except upon a through

Code Civ. Proc. $ 383, relating to penalties.

Munro v. Brooklyn Heights R. Co., 195 N. X.

264, 88 NE 567.

17. Consent of abutting owners to exten-

men does not bind the company to continue

a transfer arrangement with another line,

where no such condition is expressed there-

m. Central Trust Co. v. Third Ave. R. Co.,

165 F 494.

- 18. Rule requiring passengers to ask for

transfers at time of paying fare held re-

sonable, and not in violation of contract

to give a continuaup lpb between two points.

Crandall v. International R. Co., 117 NYS 1055.

19. In re Receiverships of Street R. Co.,

161 F 879. Receivers will not be required to continue an unprofitable system of trans-

fers not required by law or contract, nor

will it be continued because franchise of

outside company may be forfeited, where

no one interested in such transfer objects

to discontinue. Central Trust Co. v.

Third Ave. R. Co., 165 F 494. Receivers of

federal court operating street railroad

lines will not be directed to obey order of state public service commission to

establish a joint rate and exchange transfers with independent company, where it

can be done only at a serious loss and the

power of commission is doubtful, until

it, to any other point thereof, held inapplicable power is settled by court. Pennsylvania

able where plaintiff changed from one

mia Steel Co. v. New York City R. Co., 165

line to another at point of intersection.

F 470. Receivers of two lines authorized Kling v. Nassau Elec. R. Co., 128 App. Div.

to discontinue transfers upon 10 days' no-130, 112 NYS 589. VWhere carrier issued a a carrier owes the highest degree of care \[24\] consistent with a practical operation of its business, \[25\] and is liable for all injuries proximately \[26\] resulting from its negligiv

v. Boston El. R. Co., 261 Mass. 114, 87 NEE \[define the carrier's duty only by the use of 488. Liable only for negligence. Fell v., West Jersey & S. R. Co. IN, J. Err. & App.\]

duct of the carrier under investigation is 72 A 362. Not liable for injury caused by closing of door in absence of negligence.

with them, which standard is the conduct Christensen v. Oregon Short Line R. Co.

\[Utah\] 99 P 676. Instructions construed and held not to make carrier an insurer.

\[Tex.\] 120 SUV 847.

Indiana Union Trac. Co. v. Thomas \[Ind. App.\] 85 NEE 356. Instruction that if passenger is injured on train, and carrier does not exercise highest degree of care, it is

\[Lad., etc., 138 Ill. App.\] 89; Asher v.

\[Lad., etc., 138 Ill.

gence." A passenger assumes all risks incident to operation with due care."

to show that sickness after injury was caused thereby. Missouri, K. & T. R. Co. locked. McCormack v. Interborough Rapid v. Craig \[Tex. Civ. App.\] 111 SWV 850. Evl. Hence held to sustain conclusion of fact that placing in plaintiff's hat a wrong and m misleading conductor's check and telling

where there is evidence that if car had had the placing monitor's check and telling

quired by Loc. Acts 1901, p. 485, No. 439, it him that he had reached destination when he had not, and negligently permitting

avoided injury, instruction that fact that piece of iron on which plaintiff stumbled

car did not have electric brakes is immana- to remain near track, was the proximate

terial unless accident was caused or con- cause of plaintiff's injury. Missouri, K. &

tributed to by lack of braking power held

T. R. Co. v. Reduchs \[Tex. Civ. App.\] 118

sultneity favorable to defendant. Fortin

SWV 208. Evidence held sufficient to warrant

W. Bay City Trac. & Elec. Co., 154 Mich. 316,

finding that injury to back was proximate

15 Det. Leg. N. 741, 117 NW7 741. Failure

cause of death from cerebral apoplexy.

to carry safely is a breach of the obligation

McCormack v. Rochester r. Co., 117 NY8

imposed by contract creating relation. Can-

1110.

Had not proximate cause: Speed of car

SWV 88.

not proximate cause of injury to passenger

Held negligerent: Fact that immediate cause

who was standing on running board of

of collision was breaking of brake rod of

street car when horse bulked and backed

automobile from a latent defect does not

vagon into the car. Wood v. Chester Trac.

relieve driver from liability where accident

Co., 36 Pa. Super. Ct. 483. Leaving baggage

would not have happened had he had the

truck at very end of platform and failing

car under control. Johnson v. Coey, 237 III. to light platform at that place is not proxi-

88, 86 NE 678.

mate cause of injury to plaintiff, a child,

Held not negligerent: Not liable for injury

who was landed safely, but the mother

being on train which had started, a person,

train, where engine was left on side track

taking plaintiff, ran along side of train 75

in safe condition but was started by boy

or 100 feet, endeaving to restore him to

whose duty was to put oil in cans. Chicago

his mother, and in such attempt fell over

Terminal Transfer R. Co. v. Berkowitz, 137

truck and injury to child resulted. Atchill

111 App. 95. Where conductor merely asked

son, etc., R. Co. v. Chishon, 213 U. S. U. S. 15

boy to show him his father, who, the boy

Law Ed. --, rvg. Atchison, etc, R. Co. v.

alleged, had paid his fare, company is not

Caliboun, 18 Okl. 76, 89 P 207. Absence of

liable for injuries caused by boy slipping

guard chains on rear platform not shown

from running board, there being no cause

to be proximate cause of injury caused by

to anticipate that boy would leave his seat

plaintiff's foot skipping in between cars.

to point out his father. Goodfellow V. De-

Coday v. Brooklyn Heights R. Co., 128 App.

trott United R. Co. \[Mich.\] 15 Det. Leg. N. Div. 856, 113 NY8 100. Evidence held

insufficient to show that peritonitis of which

brake would endanger the passengers, and

deceased died was caused by injuries re-

ceived. Mageau v. Great Northern R. Co.,

clinging to outside of vestibule, it is not

106 Minn. 375, 118 NWV 200. Leaving of elec-

neglience not to set same. Graham v.

vator door open of injury caused by sudden

chicago & N. W. R. Co. \[Towa\] 119 NWV 708.

lowering of elevator as plaintiff was about

Ferryman held not negligerent in calling

to step therefrom after being taken up by

"Come on, drivers," before guard chain was

one not in defendants employment. Board

removed from gangary, as to foot passem-

of Trade Bldg. Corp. v. Cralle \[Ya.\] 63 SE

ger who knew that invitation did not in-

985.

clude him and that such way was not

For jury: Whether being thrown against

intended for foot passengers. Grabler v.

of death. MacDonald v. Metropolitan St. R.

117 NY8 1018. Findings that controller

Co., 219 Mo. 468, 118 SWV 78. Whether accl-

dent to car was proximate cause of plain-

fet was known or should have been known

iff's illness. Washington, etc., R. Co. v.

to defendant, without finding that it had

Lukens, 32 App. D. C. 442.

existed for sufficient length of time to have

27. Slight negligence is such a breach of

duty as will render it liable. Chicago

neglience. Gay v. Milwaukee E
While a carrier owes the same high degree of care to a passenger riding on a freight \[20\] or mixed \[10\] train, the latter assumes all risks incident to the mode of travel \[81\]. A common carrier by automobile owes reasonable care \[32\], but there seems to be a conflict of authority as to whether the operator of a passenger elevator owes highest \[33\] or only ordinary care \[14\]. The violation of a public regulation for the general safety of the public is prima facie negligence \[35\]. If a passenger is in need of special care \[39\] and the carrier knows thereof \[37\], it must render the same in the discharge of the high care owed to a passenger \[38\]. Likewise, it must render commensurate care where it knows of special danger \[39\]. Where the carrier violates its contract, it is liable for results naturally flowing therefrom \[40\]. Willful and wanton question of engineering science. Peil v. \[knowledge thereof on part of carrier. Paris Jollet, P. & A. R. Co., 238 Ill. 510, 87 NE & G. N. R. Co. v. Robinson \[Tex. Civ. App.\]. 542. Instruction in effect making defend-in at high lf it failed to maintain sufficient lights about platform to avoid injury, "as testified to by plaintiff," held erroneous as making plaintiff's testimony rather than rule of law the test of liability. Dinkel-picket through companion, giving him cor-spiel v. Interborough Rapid Transit Co., 113 NYS 187. \[https://www.nist.gov/nist/documents/v1 misconduct \[41\] renders the carrier liable to punitive damages.\[42\] Liability ordinarily depends upon possession and control, and not ownership.\[43\] A carrier is not relieved from liability by the concurrent negligence of a third person,\[44\] but they are severally liable.\[45\] Negligence of a joint agent generally renders the carriers jointly liable.\[46\] Where a carrier leases the use of its road to another, it is liable to its own passengers for negligence of the lessee.\[47\] (SS 25) \_B. Contributory negligence.\[48\] Soe 1Y C. L. 55S_Passengers must exercise ordinary care for their own safety,\[49\] and a failure to do so precludes recovery \[56\] 41. Wanton negligence for jury where 47. Big Sandy & C. R. Co. v. Blankenshipr MOTMAN saw plaintiff in act of alighting \[\[Ky.\] 118 SW 31C; Id. \[Ky.\] 118 SW 316. and started car with a jerk. Birmingham R., L. & P. Co. v. Moore \[Ala.\] 50 S 115. 12 L. R. A. 359, 331; 16 Id. 91, 631; 19 Id. VWantonness held for jury in directing pass 310; 12 Id. 854; 31 Id. 120; 38 Id. 786; 2 L. & gener into car which was cut out of train \[\[N.\] 1191; 5 Id. 274; 10 Id. 852; 17 Id. 853; 17 Id. 854; 17 Id. 855; 17 Id. 856; 17 Id. 857; 18 Id. 858; 18 Id. 859; 17 Id. 859; 18 Id. 1020; 4 Id. 666, change seat as it became necessary to make \[16\], 816. 19, 5 Id. 1041; 9 Id. 1025; 10 Up berths and that porter directed her to \[18\], 816. 19, 5 Id. 1146- get off at place where she was to change \[148\]; Dec. Dfg. 11 323-349; 6 Cyc. 635-656; and put her baggage off, although she was allowed to get on again to try to make \[49\], 40. A passenger is only required to exercise ordinary care for his safety. Martin show willful misconduct. Taber v. Sea- board Air Line R. Co., 81 S. C. 317, 62 SE 311.
42\. Where facts were such as would snp- port an inference of wantonness, contr properly refused to instruct that punitive damages could not be recovered. Southern R. Co. v. Wooley \[Ala.\] 48 S 389. 143. That defendant company was operatting cars of another company no defense. South Chicago City R. Co. v. Atton, 137 Ill. App. 864. Road permitting another road to use its tracks is not liable for injury to passengers of latter except for defects in track. Lovisville, etc., R. Co. v. Linton \[Ind. App.\] 88 NE 582. 44. Failure of railroad to exercise due care resulting in collision does not relieve control and ran wild down dangerous grade, street ear company from its duty owed to a passenger (Vills v. Atchison, etc., R. Co. \[Pa.\] 72 A 525. Evidence that door 133 Mo. App. 862, 113 NV 713, and from lia- bility unless sole cause of injury \[14\].). In facts held to warrant finding that plaintiff action against street ear company for in- juries caused by collision between locomotive and street ear, it was held error not to give instruction, "The fact that the rail- road company was negligent will not excf of conductor is not proof of negligence. cause the traction company if it also was negligent; but if you find that the railroad company was negligent and that the trace- teflon company was not negligent, your verament did will be for the defendant." Cincinnati, D. & T. Trac. Co. v. Holbrock, 12 Ohio C. C. (N. S.) 234.
45\. Companies are severally, and not 19 jointly, liable for injury caused by negill- gene of independent companies at interest, resulting in a collision. Schmidt v. Chicago City R. Co., 239 Ill. 494, 88 NE 275. Where several roads jointly employ towerman at intersection, each is liable for his negligence. Gorman v. New York, etc., R. Co., 194 N. Y. 488, 87 NE 682. 46. Where gateman at union depot is al- leged to have been agent of defendant in action for misdirection, the question of lia- bility for his acts if a Joint agent of all \[\[N.\] 112\], 88 N. R. Co. v. Linton \[Ala.\] 48 S 64. 48. Passengers must exercise ordinary care for their own safety, but they are 47. Big Sandy & C. R. Co. v. Blankenshipr MOTMAN saw plaintiff in act of alighting \[\[Ky.\] 118 SW 31C; Id. \[Ky.\] 118 SW 31C. and started car with a jerk. Birmingham R., L. & P. Co. v. Moore \[Ala.\] 50 for injuries proximately \[51\] resulting therefrom, unless the carrier is guilty of wanton \[52\] or gross \[53\] negligence, or discovers the passenger's perilous position in time to avoid injury by the exercise of ordinary care \[54\]. A passenger is not guilty of contributory negligence unless his acts which contribute to his injury are negligent acts \[85\]. A passenger may assume that the carrier will fully discharge its duty until it has notice to the contrary \[56\].

\_Acts done at direction of employees \[57\]_See 11 C. L. \[58\] are not negligent if one of ordinary prudence would rely thereon under the circumstances \[58\]._

_Acts due to impulse of sudden danger \[59\]._ See 11 C. L. \[59\] unless devoid of common prudence \[59\], are not such negligence as will defeat recovery \[60\].

crowd against same. Pacetti v. Central of Georgia R. Co. \[Ga. App.\] 64 SE 802.

**Resligence for jury:** Where evidence was conflicting whether plaintiff in attempting to alight from moving car fell therefrom during struggle over rare. Braly v. Fresno Otty R. Co., 9 Cal. App.\] 417, 99 P 400. In attempting to use seat with defective bottom. St. Louis, etc., R. Co, v. Grimley \[Ala.

Going about stations, platforms, tracks, or standing cars,\[55\] 11 C. L. \[55\]--A passenger, approaching the station \[61\] and upon the platform \[62\] or tracks,\[63\] must exercise reasonable care for his own safety. While a passenger crossing intervening tracks to take passage may assume that the carrier will exercise due care,\[64\] he is not relieved from the duty of using reasonable diligence for his own safety,\[65\] the assumption being merely a factor in determining whether he was negligent.\[66\] A stockman may properly alight at intermediate station and go about the cars to look after the stock,\[67\] but he must exercise care commensurate with the situation.\[68\]

Boarding the car or vehicle of transit.\[55\] 11 C. L. \[55\]--Passengers must exercise ordinary care in boarding the vehicle of transit to avoid injury,\[60\] although he may controlers, instructions that existence of take train is not required, as matter of law, fire in vestibule did not authorize plaintiff, asstured that there was no danger, to heed-lessly jump from car while same was in motion, that sometimes an injury to a passenger might as well happen through his own negligence as through negligence of carrier, held favorable to defendant. Louis-ville & S. I. Trac. Co. v. Worrell \[Ind, App.\] 86 NE 78.

\[60\] Where a passenger in shock and excitement of a collision jumped off moving train and was injured, fact that she did jump from train and that she might not have been injured if she had remained on train was no bar to recovery. Big Sandy & C. R. Co. v. Blankenship \[Ky.\] 118 SW 315. Evidence that plaintiff on wild car was seen pushing her way towards platform from which passengers were jumping and was found a few minutes later lying beside track held to authorize finding that she fell while trying to alight. Lehner v. Pittsburg R. Co. \[Pa.\] 72 A 525.

\[61\] Negligence for jury in stumbling over semaphere wires stretched across areaway between roadways leading to depot, plaintiff knowing thereof but momentarily forgetting same. Chase v. Aethison, etc., R. Co., 134 Mo. App. 655, 114 SW 114.

\[62\] Not necessarily negligent in stepping back to allow lady to pass, without first looking for obstructions. Vance v. Great Northern R. Co., 106 Minn. 172, 118 NW 674.

\[63\] Where passenger awaiting train stands so close to edge as to be struck by passing engine bumper, fact that his back was turned toward train does not make him negligent as a matter of law. Campbell v. Yazoo & M. V. R. Co. \[Miss.\] 48 S 618.

\[63\] One flagging a train at flag station and running along track until hit by train its guilty of contributory negligence. Pillow v. Texarkana & Ft. S. R. Co. \[Tex. Civ. App.\] 119 SW 128.

\[64\] Checkmann v. Chicago & N. W. R. Co. \[Iowa\] 121 NW 676. May assume that no train will be run in such tracks. Keifner v. Pittsburg, etc., R. Co. \[Pa.\] 72 A 253.

\[65\] Checkmann v. Chicago & N. W. R. Co. \[Iowa\] 121 NW 676. Negligence for jury: In not observing train approaching on inter-vening track while on way to train. Keifner v. Pittsburg, etc., R. Co. \[Pa.\] 72 A 253. In crossing ahead of approaching train to take passage thereon, he having been requested by the agent to do so, it being difficult to judge distance of the train from the headlight. Dicekmann v. Chicago & N. W. R. Co. \[Iowa\] 121 NW 676. Passenger crossing tracking to assume that it will not be prematurely started." Upon invitation,"1 a passenger may board a train as it is being made up, but he must exercise ordinary care."2

\_Boarding at wrong place.\_See 7 C. L. 672.

\_Boarding moving train or car "8a See 11 C. L. 588 is not per se negligence," unless there are special circumstances,"8 but is a question of fact."8 In some states it is an offense to board a moving train or car,"7 but, if done with the consent and assistance of an employee,"8 it is not conclusively negligent under the Iowa statute."8

\_Riding or being in dangerous position or place.\_See 11 C. L. 588--A passenger must ride in the proper place,"8 and one voluntarily riding in a dangerous place assumes the risks ordinarily incident thereto,"8 but not those arising from negligence of the carrier."82 Negligence in being in a dangerous position is a question of fact,"8 unless the danger is so obvious as to render the act devoid of common prudence."84

70. That car will not be started until dan-

where passenger, knowing of rule that all passengers riding on platform assume all is removed. Lockwood v. Boston El. R. Co., 200 Mass. 537, 86 NE 934.

71. Evidence of custom held to show implied invitation to passengers to board train before it was made up. Wise v. Waabash R. de., 135 Mo. App. 230, 115 SW 452.

01. Wise v. Wabash R. Co., 135 Mo. App. 280, 115 SW 452. Passenger stepped onto car

when it is apparent that coach is about to be backed into it is negligent. Id.

73. Evidence held to show that plainty was injured while attempting to board moving car, and not by sudden starting of car

as he was boarding same. Quaglina v. Jerry City, etc., R. Co. \[N. J. Law\] 71 A 48; Schuman v. Brooklyn Heights R. Co., 117 NYS 145.

74. To attempt to board slowly moving street car which had slackened speed in response to signal. Nilson v. Oakland Trac. Co. \[CAL App.\] 101 P 413.

01. Such as infirmity, etc. Birmingham R., L. & P. Co. v. Jung \[Ala.\] 49 S 434.

01. Where train started without warning, passenger who had temporarily allighted held not negligent as mattute of law in attempting to board moving train with assistance of Pullman porter and not relinquishing hand hold after slipping. Gannon v. Chicago, etc., R. Co. \[Iowa\] 117 NW 966.

01. Pein. Code, $ 425, subd. 2, making it a misdemeanor for a person to get on any car or train while in motion, to obtain transportation as a passenger, held not to apply to one who boards with intent to become a passenger in good faith. East v. Brooklyn Heights R. Co., 195 N. Y. 409, 88 NE 751.

01. Pullman car porter held employe of railroad company. Gannon v. Chicago, etc., R. Co. \[Iowa\] 117 NW 966.

01. Gannon v. Chicago, etc., R. Co. \[Iowa\] 117 NW 966.

01. Although contract for transportation of caretaker requires him to look after and feed horses and does not specify where he is to ride, the car is not the place for his transportation, although he may enter same at reasonable times. Bruce v. Chicago, B. & Q. R. Co., 138 Mo. App. 204, 116 SW 447.

01. Doctrine of assumed risks as applied to relation of passenger and carrier involves doctrine of contributory negligence. United R. & Elice. Co., W. Riley, 109 Md. 327, 71 A 970.

13 Curr. L. -- 44.

82. Where passenger, knowing of rule that all passengers riding on platform assume all risks, takes position on platform, he assumes risk of injury in boarding car again after having stepped off to allow passengers to align. Tompkins v. Boston El. R. Co., 201 Mass. 114, 87 NE 488.

01. Zobner v. Metropolitan St. R. Co. \[Kan.\] 107 P 463. Passenger riding on foot-

board does not assume dangerous arising from negligent operation of car (Oliver v. Ft. Smith & de Trac, Co. \[Ark.\] 116 SW 204), or from collision (Brackney v. Public Service Corp. \[N. J. Law\] 71 A 149) with runaway car (United R. & Elice. Co., W. Riley, 109 Md. 327, 71 A 970).

83. Resilience for jury: To place hand on door jamb. Christensen v. Oregon Short Line R. Co. \[Utah\] 99 P 676. In remaining in car after power had been cut off and motorman had left car for purpose of pushing it for railroad track. Barnes v. Danville St. R. & L. Co., 143 Ill. App. 259. To stand up in freight euabose. St. Louis, etc., R. Co. v. Gilbreath \[Ark.\] 113 SW 200. Held not negligence as matter of law for one riding in coach attached to freight train to leave seat to get drink while coach was standing and switching was being done. Suttle v. South-

01. Left negligence traveling salesman, fam 690 CARRIERS \[OF PASSENGERS\] SS 25B. 13 Cur. Law.

\_Riding on the running board or platform of a street car.\_See 11 C. L. 557--Generally, it is not negligence as a matter of law to ride on the running board, step,\[45\] or platform \*\* of a street car, but is a question of fact,\[91\] especially if the passenger has been invited so to do \*\* by one having authority.\[80\] He assumes the risks, however, incident to the place,\[80\] and especially if the rule of the carrier so provides.\[91\]

\_Riding on platform of railroad train.\_See 11 C. L. 557--While it is not generally per se negligence to ride on the platform, especially if vestibuled,\[92\] unless made so by statute,\[93\] it may be so in fact.\[94\]

\_Going about on cars or from car to car.\_See 11 C. L. 557.

\_Allowing body to project.\_See 11 C. L. 557.--Negligence in allowing body to project is usually a question of fact \*\* and not of law.\[96\]

85. Not per se negligence to ride on step

**Eld negligent: When there is room with-of platform with knowledge and consent of**

**in body of summer car, passenger who conductor, there being no room inside or**

**on platform. Hoppock v. Easton Transit Co. \[N. J. Law\] 72 A 453.**

**86. Not negligence as a matter of law to**

**while car was passing around curve. Ram-ride on front platform. Brackency v. Public**

**say. Pottstown & R. St. R. Co., 35 Pa. Super.**

**Service Corp. \[N. J. Law\] 11 A 149; Lobner v.**

**Metropolitan St, R. Co. \[Kan.\] 101 F 483.**

\*\*direction of conductor. Mittiman v. Phila-

**of guard rail. Quinn v. Metropolitan St. R.**

**deplink Rapid Transit Co., 211 Pa. 485, 70 A 828.**

**88. Direction, "go to the front," to one to the carrier to push and crowd this way in order to get an advantage over other passengers in securing a place within the cars,**

**and it does not follow as a matter of law that he will be guilty of negligence in not so doing. Peterson v. Elgin, A & S. Trac Co., 142 Ill. App. 34 Where carrier customarily allowed passengers to ride on platform**

**which was enclosed by apparently secure gate, a passenger thrown off car by giving way of gates is not chargeable with negligence in that he did not use handhold. Cincinnati Trac. Co. v. Leach \[C. C. A.\] 169 F 549. Where plainf knew that defendants' street cars in passing over certain crossing passed within six inches of each other, but also knew it was the practice of the defendant to avoid having its cars pass at such crossing, and plainff7 also being on platform of car where he had right to be, he had right to assume that defendants' cars would not pass each other at that point. Scott v. Metropolitan St. R. Co. Mo. App.1 120 SW 131. Where plainf7 who was on step of street car on side next to approaching car signaled motorman of approaching car to stop instead of jumping from car and seeking place of safety, he was not negligent per se In doing so, if his actions at the time were constant with that which a person in the exercise of reasonable care might have adopted. Id. 87. Negligence for jury: Riding on steps of car, Petersen v. Elgin, A & S. Trac Co., 228 Ill. 403, 87 NE 345; Id., 142 Ill. App. 34.**

**Riding on running board. Betz v. Rhode Island Co. \[R. L.\] 70 A 1058. In boarding crowded street car and riding on platform from which he was pushed. Lobner v. Metropolitan St. R. Co. \[Kan.\] 101 F 463. Special police officer to preserve order on cars in riding on front platform at direction of conductor. Goehring V. Beaver Val. Trac. Co. \[Pa.\] 72 A 259. In riding upon rear platform of attention car while car went around curve at 18 or 20 miles per hour. Metropolitan Vest Side E. R. Co. v. Kowolski, 13 Ill. App. 89.**

**89. Whether person riding in a street car**

- \[13\] Cur. Law. CARRIERS \[OF passengers\] $ 25B. 691
- \[14\] A passenger must exercise ordinary care in preparing to alight," in alighting," and in departing." A passenger may ordinarily assume that the car has stopped at a safe place to alight," that the platform of car is safe,2 and, if it is the usual place, that he will not be negligently injured.
- Reasonable rules of the carrier must be observed
- if known or properly published.

\_Leaving moving train or car.\_See 11 C. L. SSS...It is not ordinarily negligence per sec to alight from a moving train or car * unless moving at such rate as to make it ob-manner hazardous under the circumstances, \[16\] into hole. Murray v. Seattle Elec. Co., 50 or whether he exercises reasonable care, is for jury. Pell v. Joliet, P. & A. R. Co., 142

- \[17\] In alighting in darkness from front platform of coach and step- \[18\]. App. 362. 96. Passenger sitting sideways on seat run- \[19\]. Rearden v. St. Louis & S. F. K. Co., 215 Mo. 105, 114 SW 961.
- \[20\] In aging into slightly project from window is not negligent as matter of law, although if he had been sitting as was designed accident would not have happened. Pell v. Joliet, P. & A. R. Co., 238 Ill. 516, 87 NEW 542. 97. Negligence for jury: Whether passenger about to alight was guilty of contribu- \[19\]. Held negligent: In attempting to erose story negligence held for jury. Houston & T. C. R. Co., & Harris (Tex. City. App.), 120 SW
- \[21\] In aging onto platform after announcement of his station and before train stopped. Thromas v. San Pedro, etc., R. Co. (C. C. A.17)
- \[22\] From ear and passing behind it onto adjoin- \[19\]. Heston & T. C. R. Co. v. Harris \[Tex. City. App.), 120 SW
- \[23\] Tversack v. Lackavanna & W. V. R. Co., 221
- \[24\] Pae. 437, 70 A 837.
- \[25\] Held not negligent: In going around car \[19\]. Heston & T. C. R. Co., & Harris (Tex. City. App.), 120 SW
- \[26\] Held is a safe place. Enchmered with bundles. Myrick v. Macon R. & L. Co. \[Ga. App.), 64
- \[27\] SE 296. Going out onto front platform to alight as car was ascending ineline with power shut off, knowing that power would be turned on and car started with a jerk. Cutts v. Boston El. R. Co., 202 Mass. 450, 89
- \[28\] NEE 21. Whether passenger, injured by beling thrown from platform while there intending to alight, but train failing to stop. Davis v. Atlanta & C. Air Line R. Co. \[S. C.\] 64 SE 1015. \[29\]. Enchmered with bundles. Myrick v. Macon R. & L. Co. \[Ga. App.), 64
- \[29\] SEE 296. Glong out onto front platform to alight as car was ascending ineline with power shut off, knowing that power would be turned on and car started with a jerk. Cutts v. Boston El. R. Co., 202 Mass. 450, 89
- \[30\] NEE 21. Whether passenger, injured by beling thrown from platform while there intending to alight, but train failing to stop. Davis v. Atlanta & C. Air Line R. Co. \[S. C.\] 64 SE 1015. \[31\]. 64 SE 296. Enchmered with bundles. Myrick v. Macon R. & L. Co. \[Ga. App.), 64
- \[32\] SEE 296. Glong out onto front platform to alight as car was ascending ineline with power shut off, knowing that power would be turned on and car started with a jerk. Cutts v. Boston El. R. Co., 202 Mass. 450, 89
- \[33\] NEE 21. Whether passenger, injured by beling thrown from platform while there intending to alight, but train failing to stop. Davis v. Atlanta & C. Air Line R. Co. \[S. C.\] 64 SE 1015. \[34\]. 64 SE 1015. \[35\]. Instruction that "ordinary care means that degree of care which a person of oral- \[19\].
- \[36\] NEE 21. The other passenger, injured by beling thrown from platform while there intending to alight, but train failing to stop. Davis v. Atlanta & C. Air Line R. Co. \[S. C.\] 64 SE 1015. \[37\]. 96. Instruction that "ordinary care means that degree of care which a person of oral- \[19\].
- \[38\] NEE 21. The other passenger, injured by beling thrown from platform while there intending to alight, but train failing to stop. Davis v. Atlanta & C. Air Line R. Co. \[S. C.\] 64 SE 1015. \[39\]. 96. Instruction that "ordinary care means that degree of care which a person of oral viously dangerous,' but a question of fact for the jury * under all the circumstances." _Alighting at wrong station or unusual place_,See 11 C. L. \*\*\*.A passenger must exercise due care to alight at the proper place,10 and, where he knows that the car has not reached the usual stopping place, he cannot assume that it is slackening speed to allow him to alight.11

SS 26. \_Care and condition of premises.12See 11 C. L. \*\*\*.A carrier must exercise reasonable care 13 to construct and maintain its station,14 the approaches thereto,15 and its platforms,16 in a safe condition,17 free from obstructions,18 water 19 and

Footnote 13: The _C. L. \*\*\*.A._ is a safe condition,17 free from obstructions,18 water 19 and

Footnote 13: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 14: The _C. L. \*\*\*.A._ is a safe condition,17 free from obstructions,18 water 19 and

Footnote 15: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 16: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 17: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 18: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 19: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 20: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 21: The _C. L. \*\*\*.A._ is a safe condition,18 water 19 and

Footnote 22: The \_C.

snow,\[20\] and properly lighted\[21\] and heated,\[22\] as to those rightfully using the same.\[23\] It is the duty of a carrier to use ordinary care to protect persons lawfully upon its platform against injuries by mail sacks thrown from its trains.\[24\] Where it has proximity thereto. Joyce v. Metropolitan St. \[\] fendant kept two men shoveeling snow from R. Co., 219 Mo. 844, 118 SW 21. Negligence for platform held to show due care in keeping jury in maintaining semaphore wire across smooth graveled area between two drvways \[\] R. Co., 129 App. Div. 361, 113 NYS 828.

These v. Atchison,etc., R. Co., 134 Mo. App. 655, 114 SW 1141. Carrier must keep station. St. Louis, etc., R. Co. v. Briggs road leading from depot to its ferry landing in reasonably safe condition. Whether reasonably safe held question for jury. Chesapeake & O. R. Co. v. Meyer \[Ky.\] 119 SW 183.

**16.** Adoption of platform construction in general use by well regulated railroads and approved by experience is sufficient. Feil v. \[\] West Jersey & S. R. Co. \[N. J. Err. & App.\] 449, requiring company to maintain reasonable accommodations, etc., carrier must have station and platform sufficiently lighted to enable passengers to board and alight with reasonable safety. Id.

**17.** Evidence that deapplies the 17.

- \[of passengers\] SS 27.13 Cur. Law. vided a safe approach, it is not liable to one deviating therefrom,\[28\] unless it has invited such deviation.\[26\] Where the carrier provides a way around an obstructed part of its line and invites its passengers to use the same,\[7\] it must exercise reasonable care to keep the same safe, though it is over private property which the carrier has no right to use,\[28\] and it is immaterial whether it sustains the technical relation of carrier and passenger while they are so using it.\[29\] While a carrier is not liable for the placing of obstructions by third persons,\[30\] it must exercise due care to discover and remove the same.\[81\] It is not negligence to pile trunks on the platform if a sufficient and safe passageway is left.\[22\] Ordinarily, a carrier must exercise the highest degree of care in the construction and maintenance of its tracks\[23\] and bridges.\[34\] Perilous conditions may require carrier to warn passengers thereof.\[35\]
- \[of\] SS 27. \_Means and facilities of transportation.\[30\] See 11 C. L. \[50\]--A carrier must exercise the highest care to provide and furnish safe cars\[87\] and track,\[38\] and is liable for a latent defect in construction or material which could have been discovered requiring sacks to be thrown at certain place and by notices, or by other means. Huddles-ton v. St. Lonis, etc., R. Co. \[Ark.\] 119 SW 280. Instruction, in action for injuries to passenger caused by mail sack being thrown from moving train, held erroneous as ignoring duty of carrier to persons lawfully on its depot platform. Id. 25. Chase v. Atchison, etc., R. Co., 134 Mo. App. 655, 114 SW 1141. 26. Where carrier maintained a smooth graveled area between two roadways leading to depot, held for jury whether it impliedly invited public to use same. Chase v. Atchison, etc., R. Co., 134 Mo. App. 655, 114 SW 1141. 27. Evidence held to show that carrier volnaturally provided way to pass around obstructed part of its line and invited patrons to use same. Powers v. Old Colony St. R. Co., 201 Mass. 66, 87 NE 192. 28. Condition of path and lighting of same held to make negligence for jury. Powers v. Old Colony St. R. Co., 201 Mass. 66, 87 NE 192. 29. Powers v. Old Colony St. R. Co., 201 Mass. 66, 87 NE 192. 30. Where section forman gave some discarded ties to one, carrier is not liable for initial leaving of such ties on station platform by such person, in absence of any showing that he was acting as agent of company. Moriarty v. Boston & M. R. Co., 202 Mass. 166, 88 NE 585. 31. Negligence of defendant's section forman and of station agent in not discovering and removing ties left on platform by one to whom they had been given. Moriarty v. Boston & M. R. Co., 202 Mass. 166, 88 NE 585. 32. Strain v. Vickburg, & P. R. Co., 133 La. 407, 49 S 2. Where platform was only three feet from ground, passageway of two feet outside of trunks held sufficent. Strain v. Vickburg, & P. R. Co., 123 La. 407, 49 S 2.
- \[of\] SS 2.3. Instructions as to degree of care required in keeping track in safe condition held erroneous as not imposing as high degree of care as is required. Huff v. Clew-land, etc., R. Co., 138 Ill. App. 89. Evidence held to warrant finding that carrier was negligent in permitting low places in track. St. Lonis, etc., R. Co. v. Richardson \[Ark.\] 113 SW 794. Negligence held for jury: Where evidence is conflicting as to sufficency of roadbed. Delaware, L. & W. R. Co., 139 N. Labwr 71 A 36. Negligence for jury: Negligence resulting in controller blowing out, notwithstanding testimony of defendants' employees tending to show due examination of controller and careful operation. Endres v. International R. Co., 129 App. Div. 785, 114 NYS 631. Evidence, together with inference of negligence arising from explosion of drum, held smlml-client to take issue of negligence in inspecting and testing heating apparatus to jury. Houston, etc., R. Co. v. Roach \[Tex. Civ. App.\] 114 SW 418. Where the most reasonable solution of plaintiff's injury is that he allowed arm to project out of car window above screen and was struck thereon by passing car, verdict for defendant affirmed. Levy v. New Orleans R. & L. Co., 123 La. 198, 48 S 87. Where passenger was thrown from moving street car by defective board in car platform, the company was liable. Blackwell platform, the company was liable. Blackwell 456. 38. Arkansas Cent. R. Co. v. Janson \[Ark.\] 119 SW 648. Evidence of experts and of condition of bridge after the collapse held to show collapse was caused by breaking of supporting cord. Roanoke R. & Elec. Co. v. Sterrett, 108 Va. 533, 62 SE 385. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 41. 43. 45. 46. 48 13 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 28. 695

by it or the builders in the exercise of the highest degree of care.\[39\] It must properly equip its cars,\[40\] and especially with the equipment provided by statute.\[41\] The highest degree of diligence must be asserted in keeping the facilities in proper repair,\[42\] and the steps of cars free from ice and snow.\[43\] A carrier must have due regard to the convenience of its passengers,\[44\] and the same high degree of care is owed to provide sufficient seats for passengers\[45\] and to see that some passengers do not unnecessarily occupy the same to the exclusion of others,\[46\] although a passenger may waive his right to a seat.\[47\] In some states a lesser degree of care seems to be exacted of an operator of a passenger elevator.\[48\]

_Separate accommodations for white and colored persons.\[See 11 C. L. 582--Common carriers may not, in accommodations which they furnish to each, unjustly discriminate between white and colored passengers paying the same fare.\[49\] A lessee and operator of an interurban road\[50\] must provide separate accommodations for white and colored passengers as required by the Kentucky statute,\[51\] and the lessor is not criminally liable unless it leased with knowledge that such accommodations were not to be furnished.\[52\]_

SS 28. _Operation and management of trains and other vehicles.\[53\]_ See 11 C. L. 582--Common carrier is usually required to exercise the highest degree of care\[44\] in respect to all operations of the train,\[55\] such as making up the same,\[56\] in starting and stop-

39. Chesapeake & O. R. Co. v. Morgan seat and surrendered her ticket, she waived her contract right to a seat. Weeks v. Au-

01. Must equip and keep vehicle in reason-

01. Irewin v. Louisville & N. R. Co., 60 Misc. 400, 113 NY8

01.

R. Co. \[Ala.\] 50 S 62. A carrier must furnish

42. Irewin v. Louisville & N. R. Co., 60 Misc. 400, 113 NY8

01.

and maintain reasonably safe equipments so

whether operator of a passenger elevator

far as can be provided by the utmost human

skill and foresight. Arkansas Cent. R. Co. v.

safe condition. Ferguson v. Truax, 136 Wis.

Janson \[Ark.\] 119 SWV 648.

64. Loc. Acts 1901, p 485. No. 439, requiring

01. Corant v. Southern R. Co., 15 I. C. C.

electric cars to be equipped with electric

226. Certain bistops of the African Metho-

brakes, held sulfetent as to title. Fortin v.

dist Episcopal Church alleged that the day

Bay City Trac. & Elec. Co., 154 Mich. 316, 15

coaches furnished for colored passengers in

Det. Leg. N. 741, 117 NY7 741.

42. Instruction making defendant's liability

those provided for white people; that

ity depend upon the existence of such a

agnores are denied sleeping car accommodation

dition of the floor as of itself to "necessarily"

tions, and are refused food in the dining ears

sprise defendant of its dangerous condition

solely on account of their race and color.

held erroneous as too favorable to carrier.

The complaint with respect to the day

Pleleka v. Detroit United R. Co. \[Mich.\] 15

coaches was abandoned in view of the great

Det. Leg. N. 911, 118 NW 781.

43. Instruction exacting only reasonable

earce to keep steps free from snow and ice

held erroneous. Johnston v. Cedar Rapids

the complainants and their witnesses testi-

& M. C. R. Co. \[Iowa\] 119 NY 286.

44. Where at junction point receiving con-

secting carrier forwarded train in two sections, it was not liable to passenger already

on one section for inconvenience in attach-

ing her sheer to other section, it having

no knowledge of her presence or right to

sleep. Cincinnati, etc., R. Co. v. Raine

\[Ly.\] 113 SWV 95.

45. St. Louis S. W. R. Co. v. Title \[Tex.

Civ. App.\] 115 SWV 640.

46. Where it is not made certain that some

passengers did not occupy more seats than

was necessary, or that employees could not

have found plaintiff's wife a seat when she

asked for one, instruction that defendant

was not liable if it provided sufficient seats

to meet needs to be reasonably expected held

erroneous. St. Louis S. W. R. Co. v. Title

\[Tex. Civ. App.\] 115 SWV 640.

47. Where plaintiff accepted transportation

on car so crowded that she could not find a ping,87 in operating without unnecessarily violent jerks,98 in running at a safe speed,99 in protecting cars from fire,90 in approaching station where passengers must

cited tone that train was on fire held not negligence rendering carrier liable to passenger who rushed to platform and was thrown therefrom by sudden larch as he was looking forward along train. Chicago, etc., R. Co., 202 Mass. 450, 89 NE 21. Instruction, R. Co. v. James \[Kan.\] 100 P 641. Carrier held liable for carelessness of stewardess on vessel in allowing spout of teapot to strike plaintiff eye. Korzib v. Netherlands-Ameri-can Steam Nav. Co., 169 F 917. Swinging of trolley rope by conductor around rear of car in front of steps, intending to catch it with other hand, which rope struck passenger in eye, held negligence. Coolidge v. La Crosse City R. Co., 136 WIs, 556, 117 NW 818.

56. After caboose has been drawn up to station for receiving passengers, trainmen must thereafter anticipate their presence in same. St. Louis, etc., R. Co., v. Gilbreath \[Ark.\] 113 SW 200. Where there was a conflict of evidence as to whether trainmen knew of care-taker's presence in car with horses, held error to refuge instruction that if they did not know, and engineer, in backing into car, exercised such care as an ordinarily prudent engineer would have exercised under similar circumstances, defendant is not liable. Bruce v. Chicago, B. & Q. R. Co., 136 Mo. App. 204, 115 SW 447.

**Held negligent:** Where passenger was requested to change coaches and before she was seated a train or engine was propelled against car with such force as to throw her against back of seat. Missouri, K. & T. R. Co. v. Allen \[Tex. Civ. App.\] 115 SW 1179. Where, in switching, car was violently bumped into passenger coach attached to freight train. Suttle v. Southern R. Co., 150 N. C. 688, 64 SE 778. Evidence of violent showing of freight car against passenger car in mixed train during switching. Evidence held to authorize finding that coupling was negligently made, the jerk having thrown plaintiff from her seat. Texas & P. R. Co. v. Boleman \[Tex. Civ. App.\] 112 SW 805. Evidence that freight car was snoved violently against car in which plaintiff was standing held to make prima facie ease of negligence. Gabriel v. St. Louis, etc., R. Co., 135 Mo App. 222, 115 SW 3.

57. Not per se negligence to suddenly start street car, but the negligence of the act depends upon the circumstances. Oliver v. Pt. Smith L. & Trac. Co. \[Ark.\] 116 SW 204. Where increase of speed after slowing down caused passenger to fail from foothard, neg., figence is for jury. Id. Held not negligence to stop train, discovered on fire, with emergency brake, although stop could have been nearly as quickly made by service stop. Chi-cago, etc., T. Co. v. James \[Kan.\] 100 P 641. 58. Merce jerk of electric car is insufficient to show negligence. McGann v. Boston El. R. Co., 199 Mass. 446, 85 NE 570. Fact that freight train moving about three miles per hour stopped with a jerk sufficient to injure one leaning against door casing held not of itself to show negligence. St. Louis & S. F. R. Co. v. Gasnell \[Osk.\] 101 P 112. Evidence held insufficient to show that jerk of cable car throwing man's arm through glass next to which he was carelessly standing was due to negligence. De Yoe v. Seattle Elec. Co., cross tracks to take passage,\[41\] in crossing the tracks of other carriers,\[62\] in passing cars from which passengers are alighting,\[43\] in avoiding collisions,\[64\] in discovering obstructions on the track,\[65\] in preventing derailment,\[66\] in remaining stationary while passengers are boarding or alighting,\[67\] in opening and closing car doors,\[68\]

company operates its roads on public high-way and runs cars in night time upon a straight level track, although in open counstrity, at such rate of speed that a cow cannot be discovered standing upon track by light of headlight in time to stop the car. Cleve-land, P. & E. R. Co. v. Sites, 12 Ohio C. C. (N. S.) 73.

**e0.** Evidence of flying sparks and of con-dition of car, etc., held to warrant finding that fire which destroyed car started from without. McGuire v. Great Northern R. Co., 106 Minn. 192, 118 NW 556.

**f1.** Treatment approaching on a straight track are bound to know that it is difficult to judge distance of train from headlight.

**Dleekmann v. Chicago & N. W. R. Co. \[Lova\] 111 NW 676. Carrier owes positive duty not**

**i0 let trains run in on such tracks while passengers are using same. Keifner v. Pitts-burg, etc., R. Co. \[PA.\] 17 A 253.**

**e2.** Held not negligence for employees in charge of street car to respond to invitation of watchman of steam railway to cross tracks, although engine down the track showed indication of starting, the collision being caused by car becoming stranded on track. Gaines v. Chester Trac. Co. \[Pa.\] 73 A 7. Evidence insufficient to show that trel-ley jumped wire and left car on track of railroad through any negligence of defendant. Id.

**e3.** Held liable where, in violation of ordinance requiring car to stop as it approached car on parallel track discharging passengers, it attempted to pass and struck passenger who was attempting to cross tracks. Jones v. New Orleans R. & L. Co., 123 La. 1060, 49 S 706.

**f4.** It is duty of conductor as well as motorman to prevent collisions, and instruction making carrier liable if either was negil-gent held proper. Williamson v. St. Louis & M. R. Co., 133 Mo. App. 375, 118 SW 239. In action for Injury to passenger from collision with wagon, doctrine of paramount rights is not of much Importance, since duty to passenger requires it to surrender the right. Tucker v. Brooklyn Heights R. Co., 131 App. Div. 97, 115 NW 234. Where evidence showed that plaintiff was in open car with beards running along sides thereof and that the conductor in attempting to swing around a passenger on running board struck some portion of wagon, causing it to swerve in such a way as to throw pole of same into the car against plaintiff, held negligence for jury. Monday v. St. Joseph R. Co., 136 Mo. App. 692, 118 SW 24.

**Negligence for jury:** Whether collision was result of defendant's negligence. Chi-cago Union Trac. Co. v. Mee, 136 Ill. App. 98.

**That negligence of street car company caused collision between car and locomotive. Asher v. East St. Louis & S. R. Co., 140 Ill.**

**App. 226.** That collision between street car and wagon was caused by carriers's negligence. Chi-cago Union Trac. Co. v. Mee, 136 Ill. App. 94.

**the** hold not negligent:\*\* Modernn held not negligent in colliding with driverless horse where it suddenly became frightened and turned into car. Trenchard v. New Orleans R. & L. Co., 123 La. 36, 48 S 575. Where engineering was left by engineer in safe condition but was started by boy who was filling oN cans. Chicago Terminal Transfer R. Co. v. Mee, 137 Ill. App. 95.

**Held negligent:** Where car had stopped in order to allow wagon to get out of way but when started ran into wagon. Elecks v. Royal, 136 Ill. App. 258. Evidence that gong on fire hose wagon with which collision occurred could be heard two or three blocks, and that man tried to stop car while it was 125 or 150 feet distant by waving of hands. Williamson v. St. Louis & M. R. Co., 133 Mo. App. 375, 113 SW 239. Collision caused by disobedience of orders by motorman. St. Louis & N. B. R. Co., Sommeland, 140 Ill. App. 184. Collision between street car and locomotive held to be result of street car company's negligence. Chi-cago City R. Co. v. Casey, 139 Ill. App. 655.

**e5.** Instruction requiring motorman to attempt to stop only after discovering driver about to go onto track held liberal in favor of carrier. Newman v. New York & Q. C. R. Co., 127 App. Div. 12, 111 NYS 289. Negil-gence for the jury in falling to observe truckman driving in close proximity to track and avoid collision. Tucker v. Brooklyn Heights R. Co., 131 App. Div. 97, 115 NYS 224.

**f6.** Where car left track while rounding curve, evidence held to require verdict for plaintiff. McGrew v. Chicago & M. Elec. R. Co., 142 Ill. App. 210.

**e7.** See post, $30.

**f8.** Where carrier in giving due warning of known dangers," etc. A carrier must not permit its ears to become dangerously overcrowded," and, if it does, it must exercise commensurate care." While public regulations must be duly observed," a carrier is not ordinarily required to maintain flagmen in the absence of statute," although their absence may be considered in determining negligence in operating train." Where employees attempt to transfer a passenger in the wrong car, they must exercise due care." Railroad company is not liable for default of a sleeping car company in the discharge of its special contract."

An operator of a passenger elevator must exercise reasonable care in the operation of the same."

SS 29. _The duty to protect passengers_ 18_See 11 C. L. 564 generally renders the carrier liable absolutely for assaults 79 and insults by employees 80 unless the passenger provokes the same," and mere insulting words do not justify an assault."

**60. Owes highest degree of care to warn**

See, also, Carriers, Cent. Dlg. $1 1093-passenger on running board of obstruction which might strike him. Hinckley v. Danbury, $1 Conn. 241, 70 A 590.

70. Carrier is liable where It negligently allows car to become so crowded as to force passenger, standing on running board, out so as to strike car on adjoining track. Kails v. Detroit United R. Co. \[Mich.\] 15 Det. Leg. N. 1107, 119 NWP 966. Negligence for jury in allowing car to become so crowded that passenger is pushed firement. Lobner v. Metropolitan St. R. Co. \[Kan.\] 101 P 463.

01. Where street car approaches car on parallel track, so crowded that passengers are standing on inner running board, it may be negligence not to ring the bell, and instruction thereon held proper. Kails v. Detroit United R. Co. \[Mich.\] 15 Det. Leg. N. 1107, 119 NWP 966. Negligence for jury in allowing car to become so crowded that passenger is pushed firement. Lobner v. Metropolitan St. R. Co. \[Kan.\] 101 P 463.

01. Where street car approaches car on parallel track, so crowded that passengers are standing on inner running board, it may be negligence not to ring the bell, and instruction thereon held proper. Kails v. Detroit United R. Co. \[Mich.\] 15 Det. Leg. N. 1107, 119 NWP 306.

01. Ordinance requiring railroads to keep watchmen at crossings to perform such duties as might be prescribed by ordinance held inadmissible without evidence of ordinance prescribe duties. Willis v. Atchison, etc., R. Co., 133 Mo. App. 625, 113 SIV 712.

73, 74. McCherry v. Snare & Trieste Co., 130 App. Div. 241, 114 NYS 674.

75. Though servants may ordinarily give proper directions to passenger in wrong car and leave him to follow same. Cincinnati, etc., R. Co. V. Raine \[Ky.\] 113 SSV 495.

01. Acts of Fulhman port in refusing to make up berth. Taber v. Seaboard Air Line R. Co., 71 S. C. 317, 62 SE 311.

01. Where, because of leak, it was necessary to leave lever of hydraulic elevator unlatched and partly over center line to hold elevator still, held negligence for boy to leave same with door open, knowing that tailor boy was likely to return and might throw lever while entering by clothes catching thereen. Toughy v. McLean, 199 Mass. 466, 85 NE 578. Where elevator operator at railroad station, upon request of plaintiff, hasened to close door so that she could catch her train, and caught plaintiff's hand which she placed on jamb just as it closed, held that operator was not negligent. Cashman v. New York, etc., R. Co., 201 Mass. 355, 87 NE 670.

01. Search Note: See notes in 14 L. R. A. 173, 791; 16 Id. 627; 31 Id. 261; 2 L. R. A. (N. S.) 105; 3 Id. 605; 6 Id. 109; 8 Id. 298; 11 Id. 142; 13 Id. 153, 889; 15 Id. 425; 6 A. S. R. 734; 7 Id. 890; 32 Id. 90; 32 Id. 254, 1084; 8 Id. 225, 590; 11 Id. 856.

Servants, however, may protect themselves from attack," and the carrier is not liable for assaults committed by them in self-defense," provided no unnecessary force is used." An assault upon a trespasser is not a breach of any contract." Where the carrier wrongfully procures an officer to arrest " or search " a passenger, it is liable, but it is not liable for the acts of a public officer " in the discharge of his public duties." While not an insurer," the carrier owes the highest degree of care to protect passengers from insults " and assaults " by fellow passengers and third persons, and is liable for negligence, and, where its negligence concurs with the acts of a third person," it is liable." Under its general duty to protect, a carrier is liable if it leads a passenger into danger " or negligently fails to give due warning

gages in the fight, carrier is not liable, It becomes liable (McKain v. Baltimore & especially where it is doubtful whether he is a passenger. Garrett v. St. Louis Transit & Co., #5 W. Va. 233, #4 SE 18), but where arrest was made by such officer be-Co., 219 Mo. #5, 118 SWF 68.

& #2. But may be shown in mitigation of damages. Norfolk & W. R. Co. v. Brame \[Va.\] #3 SE 1018.

&3. Norfolk & W. R. Co. v. Brame \[Va.\] #3 SE 1018.

&4. International & G. N. R. Co. v. Wash-Ington \[Tex. Civ. App.\] 117 SWF 992. Movement by disorderly person of hand toward hip pocket as if to draw weapon, but accompanied by statement, "Ill see you later," held not to afford reasonable grounds for fear of immediate attack, so as to justify assault. Norfolk & W. R. Co. v. Brame \[Va.\] #3 SE 1018.

&5. Instruction so drawn as to authorize jury to believe that conductor could use any amount of force even to the point of taking life it he had reasonable grounds to believe there was danger of his receiving bodily injury, however slight, held properly refused. Devine v. Chicago City R. Co., 237 Ill. #78, &6 NE 689.

&6. Rothstein v. Brooklyn Helights R. Co., 129 App. Div. 527, 114 NYS 344.

&7. In action against sleeping-car company for wrongful arrest, evidence held for jury whether arrest was at instance of defendants conductor. Pullman Co. v. Hunt \[C. C. A.\] 166 F 833.

&8. Where agent wrongfully causes off-cer to search passenger for weapons, carrier Is not relieved from liability that agent believed or had been informed that passenger had a pistol. Texas Midland R. Co. v. Geraldon \[Tex. Civ. App.\] 117 SWF 1004.

Evidence that, after conversation between officer and depot agent, the latter pointed out plaintiff to the former as man having a concealed weapon, held to authorize submission to jury question whether agent caused officer to make search. Id.

&8. Special officer, appointed and commissioned by governor at instance of railroad company, under Code 1899, , 145, $1, and paid by company, held prima facie a public officer for whose acts company is not liable, McKain v. Baltimore & O. R. Co., #5 W. Va. 233, #4 SE 18. Where employee thought that he had been duly commissioned as a peace officer, 'testimony that he was a public officer', ' of danger."' Where a passenger needs special attention and the carrier knows thereof," it must render the same."

SS 30. \_Taking up and setting down passengers.1 Generally.\_See 11 C. L. 584.\_The high degree of care owed to passengers generally must be exercised in receiving and discharging them,2 provided they are boarding or alighting upon invitation,3 and the carrier is liable for injuries proximately 4 resulting from its negligence. The carrier is liable for putting a passenger off at the wrong place,5 or in failing to afford an opportunity to alight at destination, where it has notice or should have notice thereof.6

for starting," and must then avoid unnecessary jerks and violence." While the carrier should not start until the passenger has reached a place of safety,11 it need not ordinarily wait until a street car passenger has reached a seat.12 The giving of the starting signal revokes the invitation to board as to one who has not commenced to do so.13 A carrier admitting passengers to cars while others are being coupled thereto is negligent.14 Where a passenger has alighted at an intermediate point with the carriers consent, he must be given a reasonable opportunity to re-board.15 Unless the conductor has expressly undertaken to let him off at a particular place,16 it is the duty of a street car passenger to give a proper stop signal,17

It stopped, held proper to charge that, if of evidence that jerk was unusual. Boston the car stopped a reasonable length of time in each place, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is negligible, is, is negligible, is negligible, is negligible, is, is negligible, is negligible, is negligible, is, is negligible, is negligible, is, is negligible, is negligible, is, is negligible, is negligible, is, is negligible, is negligible, is, is negligible, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is negligible, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is, is,, is, is, is, is,, is, is, is,, is, is, is,, is, is,, is, is,, is, is,, is, is,, is, is,, is,, is, is, 502 CARRIERS \[OF PASSENGERS\] $ 30. 13 Cur. Law.

and a signal given mid block is reasonably interpreted as a signal to stop at the next crossing.14 It is ordinarily the duty of a steam railway carrier to announce stations,15 and in so doing it must exercise reasonable care not to lead passengers to prematurely allight.26 After a passenger has made known his desire to alight, the carrier must anticipate preparations to do so and must operate the train or ear with respect thereto.21 Unless controlled by ordinance, a street car company in the exercise of the care owed to passengers may select its own places for stopping,27 but, where passengers customarily alight at a stop for other purposes, the same care must be exercised thereat as at regular stops.28 A carrier is not required to provide a safe means of exit,24 but must use the highest practical degree of care to do so.25 Carriers by steam must stop trains at their station platforms.29 While a

Footnote 33: https://www.

street car company is not liable for the condition of the street," it rests under the duty of a carrier to select a safe place for discharging its passengers,"28 and, where it knows of the dangerous condition of the street, must give adequate warning thereof." A carrier need not so stop that all of its exits are a safe means of egress " unless it expressly or impliedly invites the passengers to use them;" but, where it is dangerous to alight from a particular exit, it is the duty of a servant threat to give warning,"29 and, if passengers customarily use the same, the carrier must have a servant there."80 A passenger 80 must be given a reasonable time to alight in the exercise of due care,"81 and the carrier must ascertain if any one is alighting,"82 or

passenger and duty of providing safe

Du Bose v. Atiantic Coast Line R. Co., 81 means, etc., held to properly submit issue

S. C. 211, 62 SE at least exercise the high duty owed to passengers to do so,87 before starting, especially where it stops for express purpose of allowing passengers to alight,88 and if a carrier knows 89 or should know, that a passenger is alighting, it is negligence to start the car or train.40 A carrier must warn against known dangers.41 Where a passenger is carried by his destination through his own fault, the carrier owes no-duty to back up the train.42

Footnote 89: The name of nocently leaves his ticket behind, he is not in a strict sense a trespasser.\[60\] Persons seeking to obtain transportation are usually deemed passengers,\[51\] and care must be used for their safety.\[52\] There is an implied invitation to the public to resort to the depot to greet or bid passengers goodbye\[63\] especially relatives and members of the family,\[14\] and even to go upon the train where not ready to start,\[85\] especially rendering assistance,\[86\] and the carrier must exercise reasonable care for their safety,\[57\] but persons going to meet trains out of mere curiosity are bare licensees.\[58\] Where one boards the train, however, the carrier is not negligent in failing to afford him an opportunity to alight, unless the carrier has notice that he is not a passenger.\[86\] Such persons, however, must exercise reasonable care for their own safety.\[60\] As to trespasser, the carrier is liable for unnecessary assaults of its servants in the discharge of its business.\[61\]

riding gratuitously, unless in collusion. \[Deregon v. Sero, 137 Wis. 276, 118 NVP 839. Southern R. Co. v. Decker, 5 Ga. App. 21, 62 SE 678. Permits Issued by carrier will be construed most strongly against it. Id. \[Id.\] first sister to a seat was not a trespasser 49. See Railroads, 8 11E. The duty owed one boarding through mistake is that of a mere licensees. Metropolitan Vest Side El. R. Co. v. Sutherland, 139 III. App. 85. \[St. Pro keep premises in safe condition.\] 50. Where women having forgotten their tickets which they had bought boarded train, the conductor had no right to put them off at place where they were completed to expose their persons. International & Q. N. R. Co. v. Hood \[Tex. Civ. App.\] 118 SWV 1119. \[St. Sec ante. $ 22.\] 52. Where person seeking transportation at flag station flagged train and started along track toward platform, trainned hight to assume that he would get into a place of safety. Pillow v. Texarkana & Ft. S. R. Co. \[Tex. Civ. App.\] 119 SWV 128. \[St. Fortune V. Southern L. Co., 150 N. C. $

## 32 Remedies and procedure

See 11 C. L. 87e.The proper venue must be laid. \[43\] Where a passenger is injured through the concurrent negligence of the carrier and another, \[64\] he may sue them jointly. \[43\] An action ex contractu or ex delicto will usually lie for a negligent injury \[65\] or a wrongful ejection. \[67\]_Pleadings_, \[68\] 11 C. L. 87e.The plaintiff must allege all the essential elements of his cause of action, \[68\] including the relationship, \[69\] and a violated duty resting upon the carrier \[70\] resulting in damages. \[71\] It must be definite and certain, \[72\] and \[64\].

wrecked train, who insults and assaults one seeking permission to ride thereon, is engaged in the business of the railroad. Yahoo & M. V. R. Co. v. Shely \[Alias\]. 48 S duties as a common carrier of passengers, 403. Compelled boy to get off moving train. \[73\] Ongeld into ex delicto and not ex contractu. Reed \[168\] F 981. \[74\] GE. Search Note: See notes in 2 L. R. A. \[N. S.\] 725; 7 Id. 231, 1076; 12 Id. 760; 13 Id. 601; 16 Id. 739, 759; 4 Ann. Cas. 10; 10 fd. 462. \[75\] See, also, Carriers, Cent. Dig. **SS 1075**-1084, 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1247, 1248, 1270-1345, 1283-1408, 1463-1501; Dec. Dig. **SS 274**-278, 810-322, 343-349, 379-386; 6 Cyc. 555-555, 565, 566-569, 588-590, 626-628, 632-635, 656; 5 A. & E. Enc. L (2ed.) 632; 15 A. & E. Enc. P. & P. 1120. \[63\]. Under Civ. Code Prac. **SS 73**, action for personal injuries cannot be brought in county where injury did not occur, and in which neither plaintiff nor defendant resides. Wilson v. Louisville & N. R. Co., 33 Ky. L. R. 885. \[112\] SW 585. Under Laws 1890, p. 214, c. 125, as amended by Laws 1905, p. 129, c. 25, passenger who has purchased ticket over two roads may bring action against them for Injuries In the county in which initial carrier operates its road, had an office, and had an agent who entered into the contract which was ratified by connecting road. Blanks v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 116 SW 377. See Venue and Place of Trial. \[64\]. Railroad agent, under no duty to notify a train that another train is preceding it, is not liable for injuries received from collision of such trains. Sutton V. Southern R. Co., **SS 8**, S. C. 845, 64 SE 401. Good defense that defend did not own track or have control of car causing injury. Peli, V. Joliet, P. & A. R. Co., 238 III. 510, 87 NE 542. \[65\]. Complaint against railroad company and sleeping car company, alleging that their employees negligently caused plaintiff to align before her destination was reached, held to charge negligence on part of both. Pullman Co. v. Hoyle \[Tex. Civ. App.\] 115 SW 315. In the absence of allegations and proof of joint liability of carriers to keep passenger station properly heated, a verdict against both defendants jointly is contrary to law. International & G. N. R. Co. v. Doolan \[Tex. Civ. App.\] 120 SW 1118. \[66\]. As general rule, action for personal injury is In tort (Canaday v. United R. Co., 134 Mo. App.\] 282, 114 SW 88), and allegation of contract is usually regarded as inducement only (Id.). Complaint alleging contract of carriage and injury by negligence of defendants's servants held in tort. Id. Where contract is merely set out to show the relation of carrier and passenger, action held ex delicto. Taber v. Seaboard Air Line R. Co., 81 S. C. 317, 62 SE 311. \[67\]. Complaint alleging that plaintiff is present in the context of the current paper.

13 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 32. 707 must show the giving of notice precedent where necessary.7 Negligence may be alleged generally,74 but a general allegation is usually limited by subsequent experiments of specific negligent acts.75 Several distinct negligent acts may be pleaded,76 provided they are consistent.77 In some states it is only necessary to allege the relationship and injury from a cause that will raise a presumption of negligence.78 Where the negligence of a servant is pleaded, the complaint must show that he was acting within the scope of his authority.79 Wanton and willful negligence must be

injuries, as the same were sufficiently full and specific to appralse defendant of what it would be called upon to defend against. Milsouri, K. & T. R. Co. v. Farris \[Tex. Civ. App.\] 120 SV 535.

73 Petition for death by wrongful act

under New Mexico statute, which fails to allege giving of notice, as required by Laws N. M. 1903, p. 51, c. 33, held Insuffleent. Denver

& R. G. R. Co. v. Wagner \[C. C. A.\] 167 F 75.

74 Field sufflection. Petition allegeling in general terms that defendant's servants negligently operated the street car so that as a result of such negligence it ran into aragon

and hurt plaintiff, who was a passenger, sufficiently alleged negligence in general terms. M Monday v. St. Joseph R. Co., 138 Mo. App. 492, 119 SW 24. Declaration charges negligence generally which avers that the "defendant then and there, by its servants, agents, and employees, so carelessly, recklessly, willfully, negligently," drove and managed Its car, that "by and through the negligence " " of the defendant, through its said servants." plaintiff was injured.

West Chicago St. R. Co. v. Mileham, 128 Ill. App. 669. Complaint held to sufficiently allege negligence in allowing Iron bar to lie on platform. Metffer v. Delaware, L. & W. R. Co. \[N. J. Law\] 71 A 111. Amended complaint held to sufficiently allege negligence in a startling car before plaintiff could rebound.

after aligning with carrier's permission. Birmingham R., L. & P. Co. v. Jung \[Ala.\] 49 S 434. Complaint alleging that plaintiff notified conductor of his desire to align at

certain place, slowing of car threat, inducing him to believe that car was about to stop, and sudden acceleration of speed, held to

sufficiently allege negligence in stopping and

stating of car. Moeller v. United R. Co., 138 Mo. App. 68, 112 SW 714. As against general

demurrer, complaint alleging sudden and violent jerking of train as plaintiff was on

platform preparatory to alighting held good, but subject to special demurrer for failure

to allege where he purchased ticket and became passenger and how far train was from

station. Charleston & W. C. R. Co. V. Boyd, 8 Gu. App. 137, 62 SE 714. Petition in an action for injuries sustained while alighting

from defendants' car held sufficient after ver-

dict, though it failed to allege that the car

did not stop a reasonable time to allow

plainttiff to alight, or that the servants of

the defendant knew, or should have known,

that she was in the act of alighting. Jones

v. Sgrringfield Trac. Co. \[Mo. App.\] 118 SW

675

lassu@element: General allegation that

plaintiff was thrown from train through defendants's negligence. Charleston & W. C. R. Co. v. Boyd, 5 Ga. App. 137, 62 SE 714.

75 Count averring surroundings and conditions, and that motorman negligently

started car, but not ascribing negligence

to preceding surroundings or conditions, is not insufficient because such conditions do

not constitute negligence. Selma St. & S. R. Co. v. Campbell \[Ala.\] 48 S 378. Where

general allegation of negligence in operating

train is not modified by amended petition

setting forth allegations of specific acts of

94 Field sufflection. Petition allegeling in

neglence, plaintiff is not precluded from

rellying on negligence in operating train with

defective axle because of such specific allegations. Chesapeake & O. R. Co. v. Morgan

\[KY.\] 112 SW 559.

76 Complaint may charge that sudden

starting of car was due to negligence of mo-

torman or to a negligent defect in the car.

Paducan Trac. Co. v. Baker \[KY.\] 113 SW 449.

Under Code Civ. Proc. 1902, & 186a, allowing

all acts of negligence or other wrongs

turbings to injury to be set up in the complaint, without any right in the defendant

to require an election, it is immaterial that

some of the acts occurred without the state.

Taber v. Seaboard Air Line R. Co., 81 S. C.

317, 62 SE 311.

77. Allegations that fall was caused by

sudden starting of car and by sudden stopping of same after it started held consistent.

Alten v. Metropolitan St. R. Co., 133 Mo. App.

425, 113 SW 691.

78. Only necessary to allege relation and

that plaintiff was injured in the operation of

the instrumentality, negligence being pre- specifically pleaded." The complaint must show that the negligence alleged was the proximate cause of the injuries complained of."11

A plea of the general issue does not put in issue the ownership of the track or control of the cars."22 Contributory negligence must be pleaded,"23 and specific averments limit a general averment."84

_Issues, proof and variance_.See 11 C. L. 572--Except as to matters of which the court can take judicial notice,"85 plaintiff must prove all the material \*\* allegations of his complaint,"' unless admitted by the pleadings."85 As in actions generally, there must be no material variance between the pleadings and proof."85 While

80. Held Insuffleent: Complaint for in-

senger alighting from street car, a plea that juries due to a collision, alleging that train

plaintiff was negligent in the manner in despatcher willully ordered two passenger

which she allgled from the car was a spc-trains to pass over track in opposite direc-

cific allegation of negligence distinct from

tions at same time, and that defendant's statement

other specifications of negligence, and in the

tion agent, knowing the facts willfully

absence of a special exception was sufficient

held information, etc., but which failed to

to admit evidence as to her manner of alighting.

charge that defendant willfully and purposedly intended to inflict injury complained

\[Tex. Cuv. App.\] 119 SV 122.

of. Southern R. Co. v. McNeeley \[Ind. App.\] 85 NE 710: Southern R. Co. v. McNeeley \[Ind. App.\] 85 NE 714. Complaint in action for

inpurries caused by derailment, alleging defective condition of ties, knowledge of condition on part of carrier, and that, notwithstanding, cars were propelled along track

\[Tex. Cuv. App.\] 119 SV 122.

Wanton and willful negligence in starting

plaintiff must recover upon the negligence alleged,"\* and must prove the facts substantially as pleaded,"1 he need only prove one of several distinct acts of negligence charged."2 Negligence must be shown by direct evidence or by proof of facts from which it can be reasonably inferred."3 Where plaintiff bases his action upon the relation of carrier and passenger, he must prove the same,"4 and cannot recover upon a showing of the relation of master and servant."3

form onto running board before car stopped, isau Elec. R. Co., 138 App. Dlv. 144, 117 NYS it gave a sudden eerik. McCullum v. Atlantic 358. Where only negligence alleged was al-Clity & B. To. Co. \[N. J. Err. & App.\] 72 A 87. Between allegation that plaintiff was injured while alighting "at" C, which was only shed Keep platform lighted. St. Louis & S. F. R. station, and proof that he was injured two car lengths therefrom. Birmingham R., L. & P. Co. v. McGinty \[Ala.\] 48 S 491. Between allegation that ticket was purchased from refendant, its agent or servant, and proof that ticket was purchased from another company as initial carrier and was recognized by defendant. Alabama City, G. & A. R. Co. v. Brady \[Ala.\] 49 S 51. Between allegation that turnstile was improperly constructed, and evidence that lower arm was at such distance from floor that plaintiff's foot caught thereunder. Giacosigne v. Metropolitan V. Mertpolitan Vest Side El. R. Co., 233 III, 18, 87 NE 883. Between allegation that car had nearly come to a standstill, and evidence that, if It had not stopped, it had practically done so. Nilson v. Oakland Trac. Co. \[Cai. App.\] 101 P 413. Under Rev. Codes, $ 658, providing that no variance shall be deemed material unless it actually misleads, there is no fatal variance between complaint alleging that plaintiff was injured by forward movement of car, after passengers had been discharged and car had started on return trip, and evidence that he was injured by backward movement to reach platform to discharge passengers, no one having been mislied. Robinson v. Helena L. & R. Co., 38 Mont. 22, 99 P 827. In action for damages in being set down at wrong station, allegation that plaintiff was "put off" held to mean merely that she was caused to alight, and no variance with proof that she was informed by conductor that she had reached destination and invited to alight. Southern R. Co. v. Melton \[Ala.\] 47 S 1008.

0. General instruction that in order to recover plaintiff must show defendant to have been guilty of negligence held not erroneous as failing to limit the jury to the negligence pleaded where court subsequently specifically eliminated eliminated eliminated cirrhosis which would authorize recovery. Johnson v. Cedar Rapids & M. C. R. Co. \[Iowa\] 115 NW 286. Where complaint alleged that car was standing when plaintiff attempted to board same and started sudden.

ly while he was boarding: instruction that if car was moving when plaintiff attempted to board there can be no recovery should be given. Alabama City G. & A. R. Co. v. Bulard \[Ala.\] 47 S 578. Allagation that plaintiff was injured "by reason of the negligence of defendant and her servants in managing, operating, and controlling said cleavor," 1 led to include negligence of elevator boy in being absent from elevator when his presence was required threat. Toohy v. McLean, 199 Mass. 466, 85 NE 578. Where negligence alleged was starting of car while plaintiff was alighting, no recovery can be had on vehicle that car had not yet stopped when piantiff attempted to alight. Walsh v. Nas

# Carriers \[OF PASSENGERS\] $ 32. 13 Cur. Law.

_Burden of proof and presumpions._\[58e\] 11 C. L. 57a.--The burden rests upon the plaintiff to prove all the essential elements of his cause of action," including defendant's negligence," and that such negligence was the proximate cause of the injuries complained." Plaintiff must show that he was where he had a right to be or that his position elsewhere did not contribute to his injury," and a trespasser has the burden of bringing himself within the doctrine of discovered peril.1 While no presumption of negligence ordinarily arises from the mere fact of injury," in some states it arises from injury to a passenger," especially where the instrument causing the same was under the control and management of the defendant,4 and, under the doctrine of res ipsa loquitur, the happening of an accident which does not occur in the ordinary course of affairs without negligence 5 gives rise to a pre-

#oes not tend to show such relation, but

traction car became wedged in slot of con- rather master and servant, affirmative charge

duit in which cable runs. Chicago City .R. for defendant is proper. Birmingham R., L. Co. v. Wyckoff, 136 Ill. App. 342. Where pas- & P. Co. v. Stanfield \[Ala.\] 50 S 51.

sember is caused to fall by moving of train as he was entering, presumption of negligence until prima_facic case is made, and

no inference of negligence can be drawn

\[Ark.\] 113 SW 878. Proof that plaintiff was

from its failure to do so. Paris & G. N. R.

\[Any\] by car she was riding in running

Co. v. Robinson \[Tex. Civ. App.\] 114 SW 658.

\[Ark.\] 115 SW 658.

sumption.\* The presumption of negligence arising under this doctrine, being general, however, will only support an allegation of general negligence,\* and a plaintiff averring specific acts of negligence cannot ordinarily rely thereon,\* unless the only

show that it exercised reasonable care, etc. : arises. Norfolk & W. R. Co. v. Rhodes \[Va.\] Prahm v. Siegel-Cooper Co., 131 App. Div. 741, 116 NYES 90. :

e. Deetrine appellenble. :

Derallment. Freeman v. Davis \[Tex. Civ. App.\] 117 SW 186; Arkansas Cent. R. Co. v. Janson \[Ark.\] 119 SW 648; Houston & T. C. R. Co. v. Cheatham \[Tex. Civ. App.\] 113 SW 777; James v. Boston El. R. Co., 201 Mass. 263, 87 NE 474; Winters v. Baltimore & O. R. Co., 163 F 106; Sloan v. Little Rock & Elec. Co. \[Ark.\] 117 SW 551; Arkansas Midland R. Co. v. Rambo \[Ark.\] 117 SW 784. Car leaving track while going around curve. St. Louis & S. R. Co. v. Homer, 137 Ill. App. 458; McGrew v. Chicago & M. Ellec. R. Co., 142 Ill. App. 210. Breaking of axel under tender, derailing car. Pate v. Columbia & P. S. R. Co., 52 Visn. 186, 100 P 324. Wreck. St. Louis & S. T. R. Co. v. Savage \[Ala.\] 50 S 113. :

Collision. Sutton v. Southern R. Co., 82 S. C. 54, 64 SE 401; Price v. Metropolitan St. R. Co., 220 Mo. 435, 119 SW 932; Murphy v. Southern Pac. Co. \[Nev.\] 101 P 322; Parrent v. Rhode Island Co. \[R.\] 117 A 865; Harris v. Puget Sound Elec. R. Co., 52 Wash. 289, 100 P 835; Chicago City R. Co. v. Greinke, 136 Ill. App. 71. Collision with fire hose wagon. Williamson v. St. Louis & M. R. Co., 133 Mo. App. 375, 113 SW 239. Collision between street car and truck wagon loaded with flour. West Chicago St. R. Co. v. Milheim, 138 Ill. App. 569. :

Closing of deer. Christensen v. Oregon Short Line R. Co. \[Utah\] 99 P 676. :

Explosion in controller. Beattie v. Boston El. R. Co., 201 Mass., 3, 86 NE 920; Gay v. Millwaukee Elec. R. & L. Co., 138 Wis., 318, 120 NW 283. Explosion of drum to heating apparatus. Houston, etc., R. Co. v. Roach \[Tex. Civ. App.\] 114 SW 418. :

Fall of store elevator. Stetiskal v. Marshall Field & Co., 238 Ill. 82, 87 NE 117. Failure of elevator to stop when brake was applied, it going to top and then falling. Keller v. Wove Realty Co., 128 App. Div. 154, 112 NYES 438. :

Morman leaving car without having fully shut off controller. Barnes v. Darville St. R. & L. Co., 143 Ill. App. 259. :

Burning of freight car in which passenger was riding in care of stock by fire which started from without. McGuire v. Great Northern R. Co., 106 Minn. 192, 118 NW 556. :

Sudaea starting of car after it had slowed to allow plaintiff to align, throwing her off. Paducah Trsc. Co. v. Baker \[Ky.\] 113 SW 449. :

Vibelent stopping of train telescoping two cars. Chicago Union Trsc. Co., v. Berkes, 136 Ill. App. 105. Where evidence showed that cable car made an unusual and violent stop throwing plaintiff agra\*not the stove, a case of presumptive negligence was made out. Briscoe v. Metropolitan St. R. Co. \[Mo.\] 126 SW 1162. Evidence that car did not check speed until it collided with truck held to east burden on defendant to explain. Vogel v. Bahr, 130 App. Div., 732, 115 NYES 284. Where Jerking of trains is so unusual and extraordinary as to break hold of passenger, and of such nature as could not have happened without negligence, presumption of negligence
712CARRIERS \[OF PASSENGERS\] SS 38. 13Cur. Law. legal inference from the facts supports the same; but proof of specific negligence has been held not to preclude plaintiff from relying on the presumption.\[10\] These presumptions, however, do not change the burden of proof,\[11\] but merely requires the defendant to take the affirmative in the adduction of evidence and to meet the prima facie case made,\[12\] and, if he does not do so, the presumption becomes conclusive.\[13\] Failure to make schedule time is prima facie negligence,\[14\] as is the violation of a speed regulation.\[15\]

The burden of proving contributory negligence lies upon the defendant,\[16\] but he may utilize plaintiff's evidence;\[17\] and, where it makes a prima facie case of negligence,\[18\] plaintiff must relieve himself therefrom.\[19\] The burden of justifying an ejectment rests upon the carrier.\[20\]

had on doctrine of res ipsa loquitur. Hoskins, v. Northern Pac. R. Co. \[Mon.\] 102 P 988. 10. 11.

Admissibility of evidence \[see 11 C. L. 576\] is governed by the general rules applicable thereto. \[21\]

the case prove such negligence but only that

onto same. Blue Ridge L & P. Co. v. Price,

the evidence as a whole must show it. In-

dianarolis Trac. & T. Co. v. Miller \[Ind. App.\]

ductor on following day as to how accident

88 NE 826.

20. In action for assault and wrongful

element, defendant put In a general denial

SWV 110s. Statement of passenger several

and a special plea that plaintiff was affected

hours after accident as to how It happened.

with a dangerous contagious disease. Held

that, where court's attention was not called

"said that he caught my foot with his handle

to the difference between the two counts,

sourt was not in error in charging that the

bndren of proving justification was on defendant. Mountford v. Cunard S. S. Co., 202

dent occurred. Lecklieder v. Chicago City R.

Mass. 345, 88 NE 783.

21. Customs and orders.

for nonpayment of rare, statement of another

Admissible: General custom to furnish

passes to like employees and that such passes

were stated by manager to be a part of

wages, to show that they were not gratuit-

ons. Harris v. Puget Sound Elec. R. Co., 52

Wash. 289, 100 P 838. Where other evidence

make issue as to plaintiff's intoxicated

condition at time of accident, evidence that he

has been intoxicated many times previous

to injury. Lewis v. Houston Elec. Co. \[Tex.

Civ. App.\] 112 SW 593.

Inadmissible: Where issue is whether

purser invited plaintiff to alight as boat lay

along what but unattached, evidence of defendant's custom in making landings and

dlecharging passengers. McKay v. Anderson

Steamboat Co., 51 Vash. 679, 99 P 1030.

Posted bulletin regulating rights at Inter-

settings, in absence of evidence that it was

still in force. Schmidt v. Chicago City R. Co.,

239 III. 494, 88 NE 275. Evidence that witness

had traveled on train once a month for a

year and had heard a certain call given held

insufficient to show custom in respect

to. Southern R. Co. v. Wooley \[Ala.\] 48 S 369.

Res create.

Admissible: In action for Injury received

by plaintiff during scuffle between her husband and conductor growing out of dispute

over transfers, conversation between three

partles. McMahon v. Chicago City R. Co., 239

III. 334, 88 NE 223, ag. Id., 143 Ill. App. 608.

Where passenger claims that he was ejected

without being given reasonable opportunity

to find his ticket, evidence that he produced

his baggage check, as bearing on hasitness

of conductor. Bolles v. Kansas City R. Co.,

134 Mo. App. 696, 115 SW 495. Where plaintiff was injured by car starting as she was

allighting, evidence of call "hold on" to plaintiff made as car started. Smith v. Detroit

United R. Co. \[Mich.\] 15 Det. Leg. N. 1055,

119 NW 640. Where, in action for injury re-

ceived by starting of car while plaintiff was

alighting at wrong place, she had testified

that others were leaving car. actions of

others passengers. Smith v. Detroit United

R. Co. \[Mich.\] 15 Det. Leg. N. 1055, 119 NW

640. What conductor did at time of accident

with section of floor upon which plaintiff

fell. Plefka v. Detroit United R. Co. \[Mich.\]

15 Det. Leg. N. 911, 118 NW 731.

Not admissible: Statement of conductor to

witness after car resumed journey. Alten v. Metropolitan St. R. Co., 133 Mo. App. 425, 113

SWV 691. Statement made by motorman after

passenger thrown from car had gotten back

without his authority and not binding on company. Blue Ridge L. & P. Co. v. Price, 108 74652, 62 SE SE 338.

- Prior and subsequent nets and conditions:
- Each of the four were not sufficient to make sure that the new set of new * \[13\] Cur. Law. CARRIERS \[OF passengers\] SS 32. 715. _The sufficiency of evidence_ to establish negligence \[21a\] and contributory negligence \[22\] is treated in connection with the substantive rulings relating to the particular negligence involved. _Questions for the jury._ See 11 C. L. 580. All issues of fact based upon conflicting evidence are for the jury. \[23\]

_Instructions._ See 11 C. L. 880. While instructions should submit only issues raised by the pleadings \[24\] and supported by the evidence, \[25\] they must not ignore \[26\]

tran. Louisville & N. R. Co. v. Seale \[Ala.\]

Bryant, 187 ILI. App. 234. Whether servants 49 S 32. In action for injury caused by fall \[negligently started ear while plaintiff was resulting from change of level in platform of \[Alia.\]

Bryant, 187 ILI. App. 234. Whether servants 49 S 32. In action for injury caused by fall \[Alia.\]

easulting from change of level in platform of \[Alia.\]

aligning. Birmingham R., L. & P. Co. v.

station, not reversible error to admit evidence that within 18 months about a dozen \[Alia.\]

24. **Held Improper:** Where no issue was \[Alia.\]

others had slipped, as had plaintiff, without injury. Fisher v. Boston & M. R. Co. \[N. H.\]

sufficient opportunity to align, charge sub- \[Alia.\]

mitting same held properly refused. Bryant

rounding the place where plaintiff's wife, \[Alia.\]

who had been carried by station, was re- \[Alia.\]

115 SW 880. Where petition alleges actual \[Alia.\]

knowledge of plaintiff's condition but did not \[Alia.\]

v. Puckett \[Tex. Civ. App.\] 120 SW 514.

line that by exercise of ordinary care they could have known thereof, held error to give \[Alia.\]

function authorizing recovery if they could, in exercise of ordinary care, have dis- \[Alia.\]

known any one to have been carried by flag station. Louisville & N. R. Co. v. Seale \[Ala.\]

Garner \[Tex. Civ. App.\] 115 SW 273. In- \[Alia.\]

struction directing jury not to consider questions \[Alia.\]

held immaterial where collision was due to confusion of signals by tworeman, in which case devise would not have been so set as to be effective. Gorman V. New York, etc., R.

@0., 194 N. Y. 488, 87 NE 682. Where only issue was premature starting of train, question as to height of plaintiff's heel. St. Louis, etc., R. Co. v. Briggs \[Ark.\] 113 SW 644. Evidence of how viaducats in other cities are constructed as bearing upon negligence in construction of particular vaduct in placing rulings too close to track. Joyce v. Metro- \[Alia.\]

Joyce v. Metro- \[Alia.\]

pellman St. R. Co., 219 Mo. 344, 118 SW 21. Evidence admissible mater particular pleadings: Where plaintiff was injured while \[Alia.\]

alighting from train on side toward treight \[Alia.\]

depot, evidence of the extent of the carrier's \[Alia.\]

freight business conducted at its freight depot on that side of the track was inadmissible, it appearing that plaintiff had no business to transact at freight depot. Louisville & N. R. Co., v. Payne \[Ky.\] 118 SW 352, \[Alia.\]

Evidence of negligent failure to properly \[Alia.\]

Might depot platform held inadmissible where the negligence alleged was sudden starting \[Alia.\]

of train. \[Alia.\]

LEvidence of assault and abusive conduct under allegation of breach of contract to carry safely. Teizer v. Brooklyn Union El. R. Co., 61 Misc. 59, 113 NYS 18. Wider allegation of assault and wrongful election, plaintiff may show that the purchased a three coupon ticket, one of which entitled him to return trip, and that prior conductor had taken up the same. Wells v. Boston & M. R. Co. \[Vt.\] 71 A 1103. In action for carrying plaintiff's wife past her \[Alia.\]

definition, testimony of wife that the platform of several coaches from which she attempted to align were closed and dark held admissible under the petition. Freeman v. Puckett \[Tex. Civ. App.\] 120 SW 514. 21a. See ante, SS 25-31. 22. See ante, SS 25B. 23. Contributory negligence. Eckels v.

The sufficiency of evidence to establish negligence \[21a\] and contributory negligence \[22\] is treated in connection with the substantive rulings relating to the particular negligence involved. _Questions for the jury._ See 11 C. L. 580. All issues of fact based upon conflicting evidence are for the jury. \[23\]

_Instructions._ See 11 C. L. 880. While instructions should submit only issues raised by the pleadings \[24\] and supported by the evidence, \[2 alighting from train car was negligently jerked and backed, thereby causing plaintiff to save himself from danger, he could not tilt to "fall to and against the said depot platform," etc., instruction that did not require jury to find that plaintiff did in fact fall against depot platform was not erroneous. Van Cleve v. St. Louis, etc., R. Co. \[Xto. App.\] 118 SWV 116. Where child 3% years old was placed on platform of train by its mother preparatory to barding and by jerk of train was thrown from car and killed, in an action by the father, as administrator, for its death, it was error to charge on contactributory negligence. Miles v. St. Louis, etc., R. Co. \[Ark.\] 119 SWV 837. In action by father, as administrator, for death of child caused h? being thrown from car by jerk of train, it was error to charge that if its mother, before any instruction to get aboard, set the child on platform of car, and in doing so failed to use ordinary care and caution, the verdict must be for the defendant. Id. Instruction, in action injuries by being struck while standing on platform by mail sack, thrown from moving train, held erroneous as not being based on the evidence. Huddleston v. St. Louis, etc., R. Co. \[Ark.\] 119 SWV 280.

25. Held supported: Charge on negligent taking of car while plaintiff was slighting. Pullman Co., V. Hoyle \[Tex. Civ. App.\] 115 SWV 315. Where there is no evidence that passenger knew of dangerous condition of ground, instruction, submitting issue, held erroneous. Readner v. St. Louis & E. F. R. Co. v. Richardson \[Ark.\] 118 Co., 215 Mo. 105, 114 SWV 961. Where neglignence charged and tended to be established was sudden starting, instruction as to "In-passing started out, and that while plaintiff's wife was going down aistle train moved suddenly forward and backward, held to be negligence in condition of car, count based had stopped at time of injury. St. Louis & S. F. R. Co. v. Sizemore \[Tex. Civ. App.\] 116 SWV 403. Where there was evidence that plaintiff was standing some distance away when car started and thereafter attempted to board moving car, instruction that if plaintiff attempted to board moving car as assumed the risk of danger and that if his injuredries resulted from his own negligence he could not recover, held improperly refused under the evidence. Joyce v. Metropolitan St. R. Co., 219 Mo. 344, 118 SWV 21. Where plaintiff's evidence showed that he had gotten safely onto car and thereafter loosened his hold on guard rail, thinking that a woman was about to jump off, and was thrown by ordinary jerk, held to authorize instruction that, if plaintiff got safely on and rode some distance and thereafter released his handhold and fell, he could not recover. Quinn v. Metropolitan St. R. Co., 218 Mo. 545, 118 SWV 46.

Held transmitted: That carrier was not liable if switch was left open not through carelessness of carrier's employees, but by some one other than an employee. Pecos & N. T. R. Co. v. Coffman \[Tex. Civ. App.\] 112 SWV 218. Where there was no evidence to show that any employee of carrier knew that plaintiff, who had assisted passenger on board, was on platform and about to alight from moving train, instruction that if carrier by its negligence placed plaintiff in a position of peril and thereby caused him to believe himself in danger of falling from train, or withdraw "?" any issues properly raised without unduly emphasizing particular evidence. \[28\] Generally speaking, they must fairly submit \[29\] the issues made by the evidence adduced, \[30\] and should not assume facts in dispute \[31\] or invade the province

Instruction regarding improper remarks of negligently moved forward. Dallas Consol. conductor held to ignore issue. Carpenter v. Trinity & B. U. R. Co. \[Tex. Civ. App.\] 119 115 SWV 344. Where caretaker entered car server swy 35. Instruction held to sufficiently with horses, knowing that switching was to charge on issue whether plaintiff had been bed once, and evidence was conflicting as to given a reasonable opportunity to align. Westevrelt v. St. Louis Transit Co. \[Moc.\] 121 121 114. Where gist of action was sudden starting of car while plaintiff was alighting at usual stopping place, instruction held not erroneous as ignoring questions whether car was stopped a reasonable time or whether defendant's servants knew plaintiff was alighting. Jones v. Springfield Trac. Co. \[Moc. App.\] 118 SWV 675.

**z7.** Instruction in action for injuries, alleged to have been sustained because depot was not properly heated, held erroneous as not submitting issue whether such acts complained of constituted negligence. International & G. N. R. Co. v. Dolan \[Tex. Civ. App.\] 120 SWV 1118. In action for injury resulting from fatigue in being compiled to stand because of crowded condition of car, charged that defendant was not negligent in not using more power and cars and other equipment, held to withdraw only ground or recovery. Weeks v. Auburn & S. Elee, R. Co., 60 Misc. 400, 113 XYRS 636. Although plaintiff's testimony of broken floor was much shaken on cross-examination and five or six passengers testified that they did not see same, held error to instruct that it was not claimed by plaintiff that floor was broken. Plefka v. Detroit United R. Co. \[Mich.\] 15 Det. Leg. N. 911, 118 NW 731. Instruction on right to recover for injury received while boarding train, being made up, held not to withdraw issue of contributory negligence, except as to premature boarding which was proper, evidence showing that defendant had invited passengers to board at that time. Wise v. Wabash R. Co., 385 Mo. App. 250, 115 SWV 452. Instruction held erroneous in view of Pen. Code, 619, and Railroad Laws \[Laws 1890, p. 1126, c. 865\], 818, 139, governing starting of trains, etc, as withdrawing liability, if conduct pushed plaintiff from the train.

Wehn v. Interborough Rapid Transit Co., 132 App. Div. 841, 117 XYRS 731.

**z8.** Instruction that, if defendant was engaged in running street cars, it owed highest degree of care, etc., held not erroneous as calling attention to part of evidence. Blue Ridge L. & P. Co. v. Price, 108 Va. 652, 62 SE 938.

**z9.** **Held proper:** Instruction, in action for damages in being induced to alight at improper place, that if jury believed that defendant's acts under the facts proved were negligent, to find for plaintiff, held proper. Dye v. Chicago & A. R. Co., 136 Mo. App. 254, 115 SWV 497. Where petition alleged that car stopped and suddenly started as plaintiff was alighting, held that defendant was entitled to an instruction distinctly submitting the issue whether ear stopped and then started, where there was only a general instruction to find for plaintiff if car was of the jury, \[82\], be upon the weight of the evidence, \[83\] nor should they be misleading. \[34\]

injury was due partly to plaintiff's riding in cupola, and partly to defendant's gross negligence in manner in which negligence, plaintiff could not recover, held erroneous as assuming that it was danger- circumstances she did, then jury should find us to ride in cupola and that it contributed proximately to injury. Reid v. Yazoo & M. V. R. Co. \[Miss.\] 47 S 670.

Held correct instruction assuming that decedent was a passenger is not erroneous where uncontroverted evidence establishes such fact. Petersen v. Elgin, A. & S. Trace Co., 142 Ill. App. 311. Instruction as to Co., 238 Ill. 402, 87 NEC 345. Instruction that if a carrier "permits" one to board its car without payment of fare in advance, obligation to pay is equivalent to actual payment as far as giving effect to the contract is concerned, held not erroneous as assuming that carrier permitted decedent to bend car, whereas evidence did not show that employees knew thereof. Id. Instruction held not to assume that plaintiff notified conductor of desire to alight at par-ticular point. Lehane v. Butte Elle. R. Co., 37 Mont. 564, 97 T 1038. Instruction that if jury believes that plaintiff was a passenger, and that car started after it had stopped to allow him to alight, etc., held not to assume v. Campbell \[Ala.\] 48 S 378.

Is. Instruction tending to cause jury to Mont. 564, 97 P 1038. Where evidence was that agent was negligent in selling that car had stopped or had practically tlicket and that such negligence resulted in done so, instruction based upon assumption invirty to plaintiff was on weight of the evidence. International & G. N. R. Co. v. Nilson v. Oakland Trac. Co. \[Cal. App.\] 101 Doolan \[Tex. Civ. App.\] 120 SWV 1118.

P 413. Instruction that defendant owes its passengers the highest degree of care, being merely for purpose of defining duty to a passenger, help not to assume that plaintiff was a passenger. Blue Ridge L.

P. Co. v. Price, 108 Va. 652, 62 SE 928.

Where ticket is identified by defendant and admitted without objection, held not error to assume that it was one upon which plaintiff code. Black v. Atlantic Coast Line R. Co., 82 S. C. 478, 64 SE 413. Where defendant's evidence clearly showed that conduct knew that plaintiff was alighting, instruction as to duty owed to alighting passenger held not erroneous for failing to submit whether servants knew that they were alighting. Alten v. Metropolitan St. R. Co., 133 Mo. App. 425, 113 SWV 691. Instructions assuming that defendants operated elevator held not erroneous where all the evidence showed that fact. Orcut v. Century Tildg. Co., 214 Mo. 35, 112 SWV 582.

Instructions: "But on the ether hand if you believe from the evidence that the said employees of defendant did not cause the car to move suddenly forward, but that the fall and the injury, if any, that plaintiff received, was caused by her own contributory negligence " " then your verdict should be for the defendant," did not assume by use of words "if any" that plaintiff was guilty of contributory negligence.

Drewery v. Eli Paso Elec. R. Co. \[Tex. Civ. App.\] 120 SWV 561. Court is authorized to assume that plaintiff's act contributed to injury only where it is so directly and intimately related to result as necessarily to have contributed to it; and where plaintiff, who was injured while alighting from street car by catching her heel in hole in platform of car, testified that she made misstep, instruction that if jury believed
They are to be considered as a whole,\[35, 14\] and requested instructions substantially covered by those given may be denied.\[37\]

_Trial._\[see 11 C. L. 554--The general rules governing fair dealing,\[8\] and arguments\[30\] of counsel, opening and closing of case,\[40\] summarizing\[41\] and submission of issues,\[42\] apply.

City R. Co., 9 Cal. App. 417, 99 P 400. In-struction on duty of motorman to watch for signals, considered with a view to the other instructions and to the facts of the ease, held not misleading as exacting the duty at ether than stopping places. Harkins v. Seattle Elec. Co. \[TWash.\] 101 P 838. Where court distinctly charged that burge-den was on plaintiff to prove defendants' negligence, instruction that the jury were the best 12 men to determine "this accident" because of this negligence, as the case may be," of any 12 men because they had heard and knew about it, as misleading jury to believe that negligence had been established. Malinowski v. Detroit United R. Ce., 154 Mich. 104, 15 Det. Leg. N. 693, 117 NW 565. Although petrien of charge on duty owed to one injured while barding ear, by being caught between starting ear and rail of v. Walek such as might cause jury to infer that company owed same high degree of care in construction of v. Walek \[Kra.\] 97 P 573. Repeated v. Walek into an insiderable. Joyce v. Metropolitaten St. R. Ce., 219 McG. 344, 118 SW 21. Instruction on general duty owed by car-rier and by conductor to a lightning sensor held not misleading as requiring con-duector to use care in aiding plaintiff to alight. Northern Texas Trac. Co., V. Danforth \[Tex. Civil. App.\] 116 SW 147. Where train was new one and there was nothing showing that deceased knew that it habitaily violated speed ordinance, instruction that deceased had a right to presume that train would not exceed speed limit held not misleading. Collison V. Illinois Cent. R. Co., 239 Ill. 532, 88 NE 251. Instruction in action for injuries alleged to have been caused by sudden jerk of train while plaintiff was on platform waiting to alight held net erroneous because of the use of the word "stop." Houston & T. C. R. Co. v. Enroute Harris (Tex. Civil. App.\] 120 SW 500. Instruction in action for injuries while alighting from ear held not misleading as pre-seating issue of negligence as to projection on platform as distinguished from step. Dallas Consol. Elec. R. Co. v. Chase \[Tex. Civil. App.\] 118 SW 783. Instruction as to duty of railroad company in maintain-ing road between depot and its ferry landing held not misleading. Chesapeake & O. R. Co. v. Meyer \[Ky.\] 119 SW 183. Instruction, in action for injuries in collision between street cars, stating doctrine of res ipsa loquitur, held not misleading. Price v. Metropolitan St. R. Co., 220 McG. 435, 119 SW 322.

**35**, **36**. Instruction on general care owed to passenger held not objectionable as a generality in view of ether instructions. Dye v. Chicago & A. R. Co., 135 Mo. App. 254, 115 SW 497. Instruction as to right of matorman to strike person who had been ejected from car but was attempting to board again held not erroneous. Colbeck

- 720CARRIERS \[OF BAGGAGE\] $ 33. 13Cur. Lau.

Part V.Carriers of Baggage and Passenger's Effects.

$ 33. _What constitutes baggage and effects; duty to accept and carry._"42--See in c. L. 884--Baggage is ordinarily whatever article or effect a passenger takes with him for his personal use, enjoyment or pleasure in traveling, according to the wants and habits of the particular class to which he belongs.\[44\] Whether particular articles are to be deemed baggage is ordinarily a question of fact.\[48\]

$ 34. _Care of baggage and effects._"64--See 11 C. L. 884--The duty to carry is incidental to the contract for the transportation of the passenger, and hence a through ticket entitles the passenger to have his baggage checked to destination.\[47\] Likewise, its liability may be reduced by a special contract for storage,\[48\] and its liability becomes that of a warehouseman,\[49\] where the contract of carriage is completed and the passenger has failed to remove his baggage within a reasonable time.\[80\] While a carrier is an insurer against loss, it is not liable for punitive damages for delay caused by miscarriage where it made earnest effort to trace and deliver same.\[81\]

$ 35. _Limitation of liability._"82--See 11 C. L. 885--The right to limit liability is controlled by statute in some states,\[83\] but in the absence thereof, it may ordinarily be limited by special contract, assented to by the passenger \[44\] and supported by a ground of alleged negligence, held not er-

used reasonable diligence in calling for ror in summarizing complaint to refer

same. Id.

thereto. Southern R. Co. v. Wright \[Ga.

50. What constitutes a reasonable time depends upon facts and circumstances of

appendix 64 SE 703.

42. Where before arguments court started

particular cases. Tallman v. Chicago, etc.,

that the only negligence that it would sub-

R. Co., 136 Wis. 648, 118 NWV 205. Where

mit would be as to crowded condition of

plaintiff arrived at 6:30 p. m. and baggage

can, held error to thereafter submit negil-

room was open until 10:30 p. m., but plain-

since in failing to ring belt before passing

off was unable to get an expressman and

car. Kalis v. Detroit United R. Co. \[Michel.\]

15 Det. Leg. N. 1107, 119 NWV 906.

43. Search Note: See notes in 7 C. L. 601;

34 L. R. A. 137; 81 d. 781; I. L. R. A. (N. S.)

560. Where plaintiff and baggage arrived

363; 41 d. 1035; 10 d. 119; 15 Id. 558; 99 A.

S. R. 343; 6 Ann. Cas. 825; 9 Id. 201.

See, also, Carrters, Cent. Dig. $ 1502--

1518; 159--1543, 1550--1556--Dec. Dig. $ 158--38--394, 404, 407, 496; 6 Cyc. 661, 662, 670-673,

675; 3 A. & E. Enc. L. (26d.) 529, 543.

44. Kansas City So. R. Co. v. Skinner

\[Ark.\] 113 SWV 1019: Chielago, etc., R. Co. v. Whitten \[Ark.\]

Whitten \[Ark.\] 119 SWV 835.

52. Search Note: See notes in 3 L. R. A.

dress pattern purchased en route, the for personal use of passenger and lat-

mer for use of family, and placed in trunk,

held baggage. Kansas City So. R. Co. v.

Skinner \[Ark.\] 118 SWV 1019: Damages re-

covered for injury to clothing, quilts, seine,

some cooking utensils and groceries carried

by person going on pleasure trip. Chicago,

etc., R. Co. v. Whitten \[Ark.\] 119 SWV 835.

45. Chicago, etc., R. Co. v. Whitten \[Ark.\]

119 SWV 835.

46. Search Note: See notes in 3 C. L. 662;

11 Id. 685; 14 L. R. A. 615, 859; 10 Ann. Cas.

855. See, also, Carrters, Cent. Dig. $ 1505--1543; Dec. Dig. $ 355--44; 6 Cyc. 462, 561,

661, 662, 671, 672, 675; 3 A. & E. Enc. L. (26d.) 546--560.

47. Gomm v. Oregon R. & Nav. Co., 52

01. Yazoo & M. V. R. Co. v. Hughes

\[Miss.\] 47 S 662.

49. Church v. New York Cent consideration.88 Such contracts must be construed in the light of public policy,89 but an agreed valuation in case of loss is usually held valid.81

8 36. _Damages,88--See 9 C. L. 838_

8 37. _Remedies and procedure,89_See 11 C. L. 885--Plaintiff must allege and prove the contract of carriage and a breach thereof,96 but proof of delivery to the carrier and a failure to redeliver,61 or delivery to the carrier in good condition,62 and receipt thereof in a damaged state, makes a prima facie case._

**Capacity (defined), see 12 C. L. 995, n. 76. Carrying Weapons; Car Tracts, see latest topical index.**

**CASE, ACTION ON.1**

\*\*The scope of this topic is noted below.\*\*8

\*\*Case will lie concurrently with assumpist for a breach of duty arising out of an express or implied contract,\*\*3 \*\*or for a violation of the duty which the contractual relations of the parties involve.\*\*4 \*\*A count in trespass on the case should aver in what particular defendant failed to perform his duty.\*\*8

**Case Agreed; Case Certified; Case Setited; Cash; Catching Bargain, see lateet topical Index.**

**Causes of ACTION AND DEFENSES.8**

\*\*The scope of this topic is noted below.\*\*8

**Causes of ACTION, 721.**

**Defenses, 723.**

\*\*Causes of action.**See 11 C. L. 887.**

**The term "cause of action" is variously defined by various writers and treatises.8 A right of action arises from the existence of a**

**53. Passenger receiving no consideration**

**NFS 542. Where upon leaving sleeping car for limitation and not asserting thereto is not bound by limitation. Black v. Al Alantie**

**conductor that it would be all right to leave Coast Line R. Co., 82 S. C. 478, 64 SE 418.**

**56. Gomm v. Oregon R. & Nav. Co., 82**

**WASH. 685, 101 P 361. Contract as to passenger's baggage is not determine! alone by the conditions in the ticket, but also by the circumstances of each case. Id. Where earrier sold through ticket over various roads and return, checking her baggage that proof of delivery to carry through, held that it was liable for loss due to failure of connecting line on return trip to check through, though it limited**

**1. See 11 C. L. 586.**

**57. Black v. Alantie Coast Line R. Co., 82 S. C. 478, 64 SE 418. Limitation of liability to 8100 in consideration of reduced rate held valid. Gomm v. Oregon R. & Nav. Co., 82 S. C. 478, 64 SE 418. Limitation of liability to 8100 in consideration of reduced rate held valid. Gomm v. Oregon R. & Nav. Co., 82 Svenh. 685, 101 P 261. See Damages. 98. Serech Notic See notes in 8 L. A. (N. S.) 225; 7 Id. 188; 9 Id. 1218; 11 Ann. Cas. 837.**

**See, also, Carrlers, Cent. Dig. $\\lx@sectionsign$ 1568, 1569; Dec. Dig. $\\lx@sectionsign$ 408; 6 Cyc. 675-678; 3 A. & E. Soc. L. (2ed.) 584.**

**Sub. Search Note: See note in 11 C. L. 586.**

**See, also, Carriers, Cent. Dig. $\\lx@sectionsign$ 1557-1571; Dec. Dig. $\\lx@sectionsign$ 408; 6 Cyc. 675-678; 3 A. & E. Soc. L. (2ed.) 582.**

**60. Allegation that plaintiff gave her suitcase to an employ of defendant carriers and a breach thereof,96 but proof of delivery to the carrier and a failure to redeliver,61 or delivery to the carrier in good condition,62 and receipt thereof in a damaged state, makes a prima facie case.**

**Capacity (defined), see 12 C. L. 995, n. 76. Carrying Weapons; Car Tracts, see latest topical index.**

**Case, ACTION ON.1**

\*\*The scope of this topic is noted below.\*\*8

\*\*Case will lie concurrently with assumpist for a breach of duty arising out of an express or implied contract,\*\*3 \*\*or for a violation of the duty which the contractual relations of the parties involve.\*\*4 **A count in trespass on the case should aver in what particular defendant failed to perform his duty.**8****

**Case Agreed; Case Certified; Case Setited; Cash; Catching Bargain, see lateet topical Index.**

**Causes of ACTION AND DEFENSES.8**

\*\*The scope of this topic is noted below.\*\*8

**Defenses, 723.**

\*\*Causes of ACTION.**See 11 C. L. 887.**

**The term "cause of action" is variously defined by various writers and treatises.8 A right of action arises from the existence of a**

**53. Passenger receiving no consideration**

\**NFS 542. Where upon leaving sleeping car for limitation and not asserting thereto is primary right in the plaintiff and an invasion of such right by some delict on the part of the defendant,* and the facts which establish the existence of such right and such delict constitute the cause of action, \[10, 11\] but does not include the conditions rendering an act wrongful and as such a delict, such conditions being merely evidentiary and are no part of the cause of action. \[12\] Otherwise defined, a cause of action is the wrongful invasion of a private right for which law or equity affords the injured person redress against the wrongdover. \[13\] In a broad sense it includes every fact necessary to be proved in order to authorize a recovery, \[14\] and in such sense is held equivalent of the right of action, \[15\] which implies a right to sue on the one hand and a liability to suit on the other, \[16\] and thus statutory conditions precedent to the right to sue constitute a part of the cause of action, \[17\] and a party will not be allowed to evade the necessity of performing such conditions by suing in another jurisdiction, \[18\] nor can such conditions be waived. \[19\] A cause of action is to be distinguished from the remedy \[20\] and from the relief sought. \[21\] The cause of action must be determined upon the facts existing at the time the action is commenced, \[22\] and must be predicated upon existing rights and their present or imminently impending violation as distinguished from future contingencies, \[23\] just as an \*

G. See 11 C. L. SS7.

- V. St. Albert Soc. \[Conn.\] ??
- **SS 2**; Former Adjudication, \[4\] ? 2; Jurisdiction, \[5\] & ?; Justifications of the Peace, \[6\] &, amendment (see Pleading, \[7\] &, \[8\] &, \[9\] &, \[10\] &, \[11\] &, \[12\] &, \[13\] &, \[14\] &, \[15\] &, \[16\] &, \[17\] &, \[18\] &, \[19\] &, \[19\] &, \[17\] &, \[18\] &, \[19\] &, \[19\] &, \[20\] &, \[21\] &, \[22\] &, \[23\] &, \[24\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[23\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[20\] &, \[23\] &, \[24\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[21\] &, \[20\] &, \[21\] &, \[22\] &, \[23\] &, \[24\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[23\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[22\] &, \[23\] &, \[24\] &, \[26\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[23\] &, \[25\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[20\] &, \[22\] &, \[23\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[21\] &, \[20\] &, \[23\] &, \[25\] &, \[24\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[21\] &, \[20\] &, \[21\] &, \[22\] &, \[23\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] &, \[21\] &, \[23\] &, \[24\] &, \[25\] &, \[26\] &, \[27\] &, \[28\] &, \[29\] &, \[20\] action must be predicated upon an existing controversy.\[24\] A cause of action cannot be predicated upon the doing of a lawful thing in a lawful manner,\[25\] and, with the exception of those causes of action founded upon malice,\[26\] one's motive in doing a thing otherwise lawful is immaterial.\[27\] One's own misconduct cannot give rise to a cause of action in his favor\[28\] and where the fault is mutual the law will leave the case where it finds it.\[29\] The facts constituting the delict may be referable to different dates, and yet there may be only a single cause of action,\[30\] nor is the singleness or entirety of a cause of action necessarily destroyed because the rights of more than one person are violated by the delict.\[31\] A cause of action cannot accrue until a wrong has been committed.\[32\] In actions on contract, the wrong usually consists of the breach of the contractual obligation,\[33\] while in actions ex delicto the delict consists of some tort, such as trespass or negligence,\[34\] but these rules are not always determinative of the date of accrual of a cause of action of a dual nature, in which case the date of accrual may relate back to the inception of the relation giving rise to the right subsequently violated.\[35\] Statutory conditions precedent to the right to sue are generally upheld,\[36\] and, in conferring a right of action where none existed at common law, congress may couple the grant with any conditions it may deem reasonable,\[31\] without affixing the same condition to all similar grants.\[38\]

\_Defenses.\_See 11 C. L. \[39\] Where not authorized by statute, equitable defenses cannot be set up against legal rights.\[39\] Where the plaintiff is asserting a legal or equitable right in a lawful manner, his motives are immaterial.\[40\]

**Cemeteries.\[41\]**

_The scope of this topic is noted below.\[42\]_

A cemetery corporation being ordinarily a membership corporation not for pe-winary profit \[43\] it may restrict the transfer of its shares,\[44\] and is not liable to pur-ehaers in good faith of stock illegally issued or transferred.\[45\] A trust under a statute which authorizes town councils to take and hold money or property in trust given to it to keep up burial ground is not void for perpetuity,\[46\] but court cannot

**24. Illinois Cent. R. Co. v. St. Louis &**

**S. F. R. Co. \[La.\] 49 S 976; Andrews & Co.**

**V. Norton \[Va.\] 65 SE 466. See Actions,**

**Id.** 590; 7 T. R. A. 155; 23 Id. 301; 35 Id. 36; 25. White v. Kincaid, 149 N. C. 415, 63 SE 41 Id. 385; 67 Id. 118; 33 A. S. R.\*\*

**109.**

\*\*Dannum absque Injuria. See Torts, **SS 1, 2.**

**26. See Malicious Prosecution and Abuse**

**Dlig.** 67. \[72\]\*\*

\*\*S. F. R. Co. \[La.\] 49 N. C. 415, 63 SE 109. See Torts, 1. 119

\*\*25, 29. Avvery v. Central Bank \[Mo.\] 119

**S**V 1106.\*\*

**30, 31. Jerome v. Rust \[S. D.\] 122 NW 344.**

**32. Sperry v. Cook \[Mo. App.\] 120 SW 654.**

**33. Sperry v. Cook \[Mo. App.\] 120 SW 654.**

**34. Sperry v. Cook \[Mo. App.\] 120 SW 654.**

\*\*35. See Torts, **SS 1, 2.**

**35. Breach of marriage promise. Sperry v. Cook \[Mo. App.\] 120 SW 654. See Breach of Promise of Marriage.**

**36. Requirement of notice of Injury. Denver & R. G. R. Co. v. Wagner \[C. C. A.\] 167**

**S**P 75.\*\*

**S**M\*\*, **SS. Hyde v. Southern R. Co., 81 App.**

**D. C. 466.**

**38. Laches, Waits v. Moore \[Ark.\] 115**

**SW** 831.\*\*

**40. Eggers v. Newark \[N. J. Law\] 71 A**

**41.**

**42.**

**43.**

**44.**

**45.**

**465;**

**Roberts v. Tompkins \[N. J. Err. &**

**App.\] 73 A 505.**

###### Abstract

The scope of this topic is to study the statute, and in several states is called a writ of review.44 Where the constitution provides for certiorari, but no procedure or grounds therefor are prescribed, the writ is authorized as it existed at common law.65

Footnote 44: Always begin with the latest article on the subject. Use the latest topical index.

The writ of certiorari lies from a superior court 66 to review the proceedings of inferior courts,7 boards 68 and public officers,89 exercising judicial or quasi judicial functions.70 The common-law writ does not lie to review official acts that are purely executive, legislative, administrative or ministerial.71 The writ may issue upon the grounds that the proceedings to be reviewed were without jurisdiction,72 were in excess of jurisdiction73 or were illegal and irregular.74 Certiorari

except the matter of costs which is treated ords in order that certificates wrongfully in Costs,\* 17. The right to the remedy is issued to certain parties as taxpayers might In particular cases is more fully treated in be quashed. Lennon v. White \[L. I.7 2A 988. other topics. For example, see Indictment and Prosecution.\* 17, for certiorari to review summary criminal convictions; Mu-nicipal Corporations,\* 8 SE, for review of ordinances; Habeas Corpus,\* 6, for an ancillary eptritorial; Appeal and Review,\* 101 P 104. Action by public service commission, establishing route and apportion-applicable courts amendments made below to the record. Choice between certiorari as provided by Laws 1907, p. 817, c. 42A, and other remedies for review is treated in Appeal and Review.\* 8 2.

62. Search Note See notes in 3 C. L. 685, 669, 670; 45 L. R. A. 158; 51 Id. 35; 22 A. S. R. 421.

See, also, Certiorari, Cent. Dig. 81 -150, 88-90; Dec. Dig. 81 -15-6; 6 Cyc. 737-774; 4 A. & E. Enc. P. & P. 1.

63. At common law, it was an original merit issued out of a court of chancery, or the King's Bench, directed in the king's name, and directing officers of inferior courts to return the records of causes pending before them to end that party might have more sure and speedy justice. Cushman v. Blount County Com's Ct. \[Ala.\] 49 S 311.

01. The statutory writ of review (B. & C. Comp. & 557) in Oregon is substantially the common-law remedy by veritorari. Que v. Eugene \[Or.\] 100 P 254; Curran v. State \[Or.\] 199 P 420.

01. Baker v. Newton \[OK.\] 98 P 931. Certiorari is provided for by constitution (Bunn's Ed. & 170), but there is no legislative provision. Id.

01. At common law. Cushman v. Blount County Com's Ct. \[Ala.\] 49 S 311; Winkler Brokerage Co. v. Carston \[Ala.\] 49 S 341.

01. Schmuck v. Hartman, 222 Pa. 190, 70 A 1091. May review and correct, proceedings of all inferior courts, except as ex-presently forbidden by statute or constitution. Id. Writ lies from district court to review proceedings of justice court (see Comp. Laws 1907, 8 3830). Griffiths v. Justice's Ct. of Logan City \[Utah\] 100 P 1064.

01. Commissioners of highways. People v. Johnson Com's of Highways, 240 Ill.

399, 88 NE 97. Common council of City of New Rochelle. People v. Raymond, 129 App. Div. 477, 114 NYS 365. County commissioners. State v. Poss. 106 Minn. 197.

118 NYS 1014. Railroad commissioners. People v. Public Service Commission, 195 N. Y. 157, 88 NE 261. School board. Southworth v. Ogie County Board of Education, 238 Ill. 190, 87 NE 403.

69. City treasurer and members of board of canvassers were required to produce rec- to be reviewed are absolutely void for want will not lie where there is an adequate remedy by appeal 78 or otherwise,79 and per contra the want of any other remedy 71 or the loss of other remedy without fault!"

of jurisdiction. Cushman v. Blount County 981. Writ was denied where matter was Com'rs Ct. \[Ala\_\] 49 S 311. Common-law -- reviewable on writ of error. People v. centerari would not lie to review commis- -- James \[Mich.\] ls Det. Leg. N. 1103, 118 NYB -- sioner's proceedings which complied with 1073. Dended where appeal was provided -- statute. Id. By statute (Comp. Laws, 1987, for by statute. In re Phillips, 164 Mich. -- 8630), district court may determine 139, 15 Det. Leg. N. 683, 11 NYB -- 630. De-Whether Justice kept within his jurisdiction. -- rifithhs v. Justice's Ct. of Logan -- to district court and by appeal thartfrom. City \[Utah\] 100 P 1064. Held, that lower court acted beyond its jurisdiction in dis- -- further remedy by appeal and writ of error -- men whereby they fixed bond of marshal at -- $3,000 and reduced his salary to $1.00 per month, such action being within their dis- --44 Coho, 27, 96 P 95. Certiornt w.o. Certiornt, creation under authority given them by -- that to review judgment of state -- (Laws 1898, Act 186, p. 228, $ 15). State v. Dodson \[La.\] 49 S 685. School -- load exceed its jurisdiction in locating school house without being authorized by -- (Mont.\] 101 P 961. Writ was denied where voters. Southworth v. Opie County Board of Education, 238 Ill. 190, 87 NE 403. It was not an act in excess of jurisdiction for -- SSV 831. -- trial court to grant order supergrading its judgment. Palmer v. Harris \[OkI.\] 101 P -- set52. Justice of the peace acted beyond his jurisdiction in vacating his judgment. Whire v. Brown \[Or.\] 101 P 900. County -- see to quote a nuisance arising from illegal court exceeded its jurisdiction in remov- -- sales of liquor, the statutory remedy (Rev. -- ing road survey whose term of office was -- fixed by law. Helmick v. Tucker County -- Coughlin, 201 Mass. 204, 87 NE -- Ct. \[Wv. Va.\] 64 SE 17. -- 74. Commonwealth v. Brownell, 35 Pa. -- 90 uo warrantu was available. Overman v. Super Ct. 249. That is, when lower tribunal -- Marily Drive Co. \[N. J. Law\] 71 A 1128. or court has exercised its jurisdiction er- -- review election proceedings where their credure applicable to matter before it. Mitchell V. Portland \[Or.\] 89 P 881, rvd. on -- members of school board desiferous of re- -- other grounds -- \[Or.\] 101 P 988. At common law, the ground for ecterdivari was lower -- control's proceeding erroneously and without authority. Winkler Brockerge Co. v. Courson \[Ala.\] 49 S 341. Act of justice of the -- rejected by amendment. Gratiot County -- piece in proceeding to trial without first -- fixing day of trial and notifying parties -- 485, 123 NW 117. The statute (Comp. Laws, held sufficient ground for ecterdivari pro- -- $5331) provides another adequate remedy -- speeding in district court. Griffiths v. Justice's Ct. of Logan City \[Utah\] 100 P -- 1064. District court could determine whether justice court -- "had regularly pursued its authority as prescribed by law" (see Comp. Laws 1907, 8630). Id. There was no illegality, reviewable by certiornt, in appraisement commissioners' reporting damages in hump sum instead of making separate awards, the matter of distribution being properly left to other tribunals. Zimmerman v. Hudson -- M. R. Co. \[N. J. Law\] 71 A 127. -- 75. Ex parte Dickens \[Ala.\] 50 S 218. Does not lie where remedy by appeal exists. Detroit Lumber Co. v. The Petrel \[Mich.\] ls Det. Leg. N. 1034, 119 NW 1072; Prichet v. Drabyne \[Nev.\] 102 P 865; State v. Posz, 106 Minn. 197, 118 NW 1014. Writ was denied where right to appeal had not -- expired. O'Connor v. Smithers \[Oo.\] 99 -- time party for content was reviewable on -- expectari would not lie to review -- appendixe error in granting new trial. Dickens \[Ala.\] 50 S 218. -- 485. Certiorari will not lie in supreme court to justice court to review appealable action of cir- -- been so far invaded as to prejudicially -- are Goldsmith \[Ark.\] 113 SW 799. Writ was -- refused, since appeal would lie from void -- 197, 118 NW 1014. Writ was allowed, no judgment. Baker v. Newton \[OkI.\] 98 P remedy being provided by law by appeal is of itself ground for certiorari, provided that a right to review exists." Certiorari will not usually lie to review determinations which are purely discretionary, unless there shall have been a flagrant abuse of discretion," nor to review the acts of a private corporation which are not judicial in character," nor to review interlocutory orders," or judgments which are not final." The writ is generally denied when it is sought to review proceedings which it is beyond the power of the reviewing court to correct," where the amount involved is small and substantial justice has been done," or where the errors complained of as a ground for review are not jurisdictional." A familiar office of certiorari is to require the record to be sent up or completed in an appeal case," but not to supply matters which do not exist in the record in the lower court." In certain cases, in some states, certiorari

or review, Southworth v. Ogle County

Board of Education, 238 Ill. 190, 87 NE 403.

Order of county commissioners laying out

public ditch as provided by stature (Laws

\[Idabo\] 102 P 390; State v. Broaddus, 216

1905, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1906, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1905, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 391; State v. Broaddus, 216

1915, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 392; State v. Broaddus, 216

1920, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 393; State v. Broaddus, 216

1931, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1940, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1951, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 391; State v. Broaddus, 216

1962, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1973, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 391; State v. Broaddus, 216

1984, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 392; State v. Broaddus, 216

1995, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1905, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1906, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1907, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 391; State v. Broaddus, 216

1915, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1908, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1909, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1905, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 391; State v. Broaddus, 216

1915, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1906, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P 390; State v. Broaddus, 216

1907, e. 230, p. 303) held reviewable, no

\[Idabo\] 102 P * 728 CERTIGARI SS 2.13 Cur. Law.

is little more than a mere appeal by indirection and is regulated by special statutes." Under some statutes, the title of the action remains the same in certiorari as in the proceedings below."

In New York, certiorari will in some cases, issue to inquire into the restraint of one deprived of his liberty," but it will not issue in a case where he is detained by virtue of a final judgment of a competent tribunal," or where it is sought to review the sufficiency of a commitment for criminal contempt."

The federal supreme court has no power to review by certiorari a judgment of the circuit court of appeals, reversing a conviction below."

\_Ancillary certiorari.\_See 9 C. L. 546

\_Prerogative writ.\_See 11 C. L. 595

SS 2. \_Right to certiorari; parties._98 See 11 C. L. 595_ A writ of certiorari is not a writ of right, but its issuance is discretionary." It will generally be refused where the petitioner has previously resorted to another available remedy." The petitioner

to bring up transcript of report of evil - quashed for irregularity, under Pub. Laws

dence and incorporate it in record and 1908, SS 9, c. 1538, p. 39. Hart v. Superior

where it did not appear that such report - Ct. \[R. I.\] 71 A 513,

was used in evidence on hearing of excep- 90. Title of cause remains same in distitions to verdict and presented by bill of - in justice court, under Mills

exceptions. Columbia Helights Realty Co.

Ann. St. $ 2694. Axelson v. People \[Colo.\]

v. MacFarland, 31 App. D. C. 112. Writ

101 P 54. Omission of words "transferase"

will not tile where record on appeal is in- (of party named) after plaintiff's name is complete in that it does not contain testi- - money which it is admitted was not reduced to writing or preserved. Fletcher v. Ozone

ware Co. v. Safkee Naval Stores Co., 5 Ga.

Lumber Co. \[La.\] 49 S 158.

$9. In certiorari to review proceedings

before justice of the peace in Alabama,

trial is had de novo. Winkler Brokerage

party being committed to care of his at- - Co. v. Courson \[Ala.\] 49 S 341. In Colorado

tory. People v. Potter, 112 NYS 298.

by statute (Millis Ann. St. $ 2694,), the writ

may be granted to review proceedings

had
case, save criminal contempt of court, be- before a justice of the peace in order to - afford unsuccessful party trial de novo,

of work in unsesesful party trial de novo,

when he is unable to appeal within time

prescribed by statute. Axelson v. People

\[Colo.\] 101 P 54. The statute does not provide for notice to nonappealing party, and unless parties voluntarily appear, or have been served with notice, the court cannot

proceed with trial de novo. Id. In Iowa, the revision provided for in contempt proceedings (Code, SS 4468) ls by certiorari, and such proceeding being quasi criminal,

viction should not be sustained unless proof of guilt is clear. Russell v. Anderson

\[Iowa\] 120 NWW 89. Forcible entry and de- tainer proceedings are reviewable on certiorari in New Jersey. See Haurand v.

Schorb \[N J. Law\] 72 A. 107. In New York, the statute provides (Tax Law art. 11,

$ 250) that certiorari will only lie to re- vlew assessment made "at a higher proportionate valuation than the assessment of other property on the same roll by the same officers." People v. Woodbury, 63

Misc. 1, 116 NYS 209. Certiorari will not lie to equalize assessment of franchises by state board of tax commissioners with assessments of local assessors en ordinary

real property. Id. In Michigan, certiorari

lies when demurrer has been overruled in action at law in circuit court, under Pub.

Acts 1905, p. 484, No. 310, Boughner v

Bay City \[Mich.\] 16 Det. Leg. N. 79, 120 NWW

597. In Rhode Island, an action in forcible entry and detainer may be removed by certiorari into the supreme court and there

69 A 276.

may be barred from his right to the writ where he has been guilty of laches," especially where to grant the right would be detrimental to intervening interests."" Mere lapse of time, however, is no absolute bar,1 except as controlled by statute.2 By entering his appearance and taking part in the action in the lower court, a party is not usually estopped to question the jurisdiction of such court by certiorari,3 even though he made no objection to the proceedings.4 The right to the writ of certiorari is not lost by a futile attempt to obtain one.5

advantage from the review sought.\[11\] The interests of the public may, in rare cases, demand that a writ issue to set aside a judgment from which the plaintiff suffers no wrong which it is necessary to redress.\[12\] It is sometimes essential that a suit brought by a resident taxpayer as such shall be brought in the name of the people.\[11\]

SS 3. _Procedure for writ; writ, service, and return.\[14\] Application or petition._ See 11 C. L. \[80\]--The petition for certiorari or writ of review must contain such a statement of facts, that, when taken as true, it will disclose sufficient grounds to warrant the issuance of the writ.\[15\] It is sufficient if it make out a prima facie case,\[16\] and give notice of the precise inquiry intended to be raised.\[17\] The allegations of a verified petition are taken as true until the coming in of the answer.\[8\] Failure to verify the petition may be cured by an answer which verifies the recials of the petition.\[19\] No affirmative allegation of good faith is required.\[20\] The petition should not be multifarious.\[21\]

_The statutory bond.See 11 C. L. \[80\]--A bond must be given, filed and approved at or within the time required by statute.\[22\]_

In Georgia, unless a pauper's afflavit be filed, the filing, with the court whose other paper as one of two official news- ercised its functions erroneously and must papers representing two leading political parties, as required, where it did not show \[Or.\] 99 P 889. Petition that there was no other newspaper in city \[On.\] 85 S96, 597. Rynenson V. Union ple v. Raymond, 131 App. Div. 160, 115 NYS 275. One landowner cannot object to an irregularity which only concerns land of another landowner. Bennett v. Millard, 142 $ I.

ll. App. 282. Right to writ of certiorari cannot be based upon allegation that parity who is not complaining has not had his day in court. Utah Ass'n of Credit Men v. Budge \[Hahab\] 102 P 691, sustaining former decision \[Hahab\] 102 P 380.

11. Newspaper sought to review proceedings of city council in designating another paper as official paper held that no useful purpose advantageous to petitioner could be served by such review after term of office of such paper, so appointed, had expired. People v. Raymond, 131 App. Div. 160, 115 NYS 275.

01. Judgment clearly wrong and subversive of spirit and intent of the law relating to nominations by individuals was set aside to prevent confusion and controversy in the future. O'Connor v. Smithers \[Colo.\] 99 P 46.

01. People v. Johnson Com'rs of Public Highways, 240 Ill. 399, 88 NE 977.

01. Search Notei See note in 3 C. L. 672.

See, also, Certiorari, Cent. Dig. **SS 51**, 52, 61-167: 214-216; Dec. Dig. **SS 36**, 42-60, 72: 6 Cyc. 781-788, 790-792, 795, 796-818, 822-822; 4 A. K. E. Enc. P. **& 143**, 184.

15. Griffiths v. Logan City Justice's Ct. \[Utah\] 100 P 1064. Must describe with certainty the judicial functions claimed to have been exercised to substantial injury of plaintiff's right, and must set forth errors al- \[Curran v.\] leged to have been committed. Curran v. State \["r.\] 99 P 420. Must state facts relating ' alleged error so that court can say upon inspection thereof, assuming it to be true, that there was error. Michell v. Portland \[Or.\] 99 P 881, rvd. on other grounds \[Or.\] 101 P 885. Petition must show prima facie that inferior court or tribunal acted without jurisdiction or ex- \[Curran v.\] 13 C. L. \[80\]--A bond must be given, filed and approved at or within the time required by statute.\[22\]

In Georgia, unless a pauper's afflavit be filed, the filing, with the court whose other paper as one of two official news- ercised its functions erroneously and must set out specific errors in relation thereto.

Raper v. Dunn \[Or.\] 99 P 889. Petition that there was no other newspaper in city \[On.\] 85 S96, 597. Rynenson V. Union ple v. Raymond, 131 App. Div. 160, 115 NYS 275. One landowner cannot object to an irregularity which only concerns land of another landowner. Bennett v. Millard, 142 $ I.

16. In re Rosenthal, 118 NYS 241. Alle- cannot be based upon allegation that parity office on an insufficient charge, or upon a proper charge without evidence to sustain \[Hahab\] 102 P 691, sustaining former \[Hahab\] 102 P 380.

01. Newspaper sought to review proceedings of city council in designating another paper as official paper held that no useful purpose advantageous to petitioner could be served by such review after term of office of such paper, so appointed, had expired. People v. Raymond, 131 App. Div. 160, 115 NYS 275.

18 proceedings are to be reviewed,\[23\] of a bond, executed in due form \[24\] by the petitioner or some one authorized in the premises \[25\] and duly approved,\[20\] is a condition precedent to the issuance of a writ of certiorari.\[31\] There is no necessity for this bond, however, until the petition for certiorari has been sanctioned.\[28\]

\_The writ.\_See 11 C. L. 508--A writ against a tribunal should be directed to it and not to the individual members thereof.\[29\] Separate writs should be issued to several officers or bodies having no joint or common duties.\[30\] The writ is sufficient in substance if it advise the court of the precise issues presented.\[31\]

\_Notice and service of writ.\_See 11 C. L. 508--Service of the writ \[22\] and notice of the hearing are ordinarily required,\[33\] but the requirements may be waived.\[34\]

\_The return.\_See 11 C. L. 508--The return is a duly authenticated copy of the record of the proceedings to be reviewed.\[35\] It should be made by the proper official,\[36\] should reasonably conform to the statutory requirements,\[37\] should be responsive to the writ, should fully answer the allegations of the petition, and should be full and complete with reference to all the essentials of jurisdiction.\[38\] When the writ is issued the lower court has no alternative but to send up its return.\[39\] The return is usually conclusive,\[40\] but where it is insufficient, a further return may be required.\[41\]

23. Condon v. Jesup, 5 Ga. App. 100, 62

01. Bond wherein petitioner bound herself to appear and abide final judgment of recorder's court or the superior court, "in the event said certiorari should be refused,"

01. Curnan v. State \[Or.\] 89 P 420.

01. Bond may be executed by agent, unless it affirmatively appear that agency was created by undisclosed power of attorney. Bass v. Masters, 5 Ga. App. 288, 63 SE 24.

01. Dust be approved by clerk of court, if there be one, otherwise it may be approved by the judge whose decision is to be reviewed. Condon v. Jesup, 5 Ga. App. 100, 62 SE 677.

01. See Civ. Code 1895, $ 4689 and Acts 1902, 105. Condon v. Jesup, 5 Ga. App. 100, 62 SE 677.

01. Draft should have been directed to village council instead of to certain indiviolaus by name, described as president and recorder of village. State v. Blackduck Village Council, 107 Minn. 411, 120 NW 844.

01. Improper to issue single writ against county clerk, who has custody of assessment proceedings, and against city clerk who has record of ordinances. Manufacturer's Land & Improvement Co. v. Candem \[N. J. Law17 & A 77.

01. Need not contain all allegations of petition. State v. Posz, 106 Minn. 197, 118 NW 1014.

01. Service upon municipal corporation by service upon its head officer, as permitted at common law, is sufficient compliance with statute (Civ. Code 1895, $ 4644). Martin v. Titron \[Ga. App.\] 63 SE 1132. Rule just stated in previous note is not affected by fact mayor served as officer whose judgment it is sought to review. Id.

01. Conder certiorari act, $ (P. L. p. 344), $ days' notice, given within 15 days after CERTIGRARI SS 4.13 Cur. Law.

Objections and amendmentsSee 11 C. L. 599--The petition for a writ of certiorari may usually be amended,\[43\] regardless of the sufficiency of the questions sought to be raised.\[43\] Such amendment may be allowed, even after the time to institute another proceeding has elapsed.\[44\] Timely objection must be made to an erroneous bond,\[45\] or return,\[46\] or the right to make such objections will's waived.\[47\]

Quashal or dismissalSee 11 C. L. 599--A motion to qush or supersede the writ is addressed to the discretion of the court.\[48\] Where sufficient grounds for certiorari exists, the certiorari will not be dismissed unless it can be said in the particular case that the same results would have been reached, regardless of the alleged errors.\[49\] The motion to qush presents the question of whether the allegations of the petition are sufficient in law to authorize the issuance of the writ.\[50\] Improvident issuance is ground for quashal.\[51\] Failure of the lower court to include in his answer proceedings which are not necessary to a determination will not, however, be ground for dismissing the certiorari.\[52\] A demurrer or motion to qush the petition need not be made until after a return is made.\[53\] The justice who allows the writ of certiorari may before the return of the writ, for proper cause, after hearing and upon due notice, vacate the allocatur.\[54\] The granting of an amendment may make inadvisable the granting of a pending motion to qush the writ.\[58\]

In New York a motion to vacate a writ of certiorari issued out of the supreme court is properly made in the first instance in the appellate division.\[56\]

SS 4.\_Hearing and questions which may be raised and settled.\[57\]\_See 11 C. L. 599

As a general rule, only questions raised by the petition for certiorari or writ of review \[58\] and presented by the record,\[59\] as returned,\[60\] and certified to,\[61\] in response to

unnecessary. Michel V. Portland \[Or.\] 101 | merits of the controversy. State v. Poss, P 588, ryg. \[Or.\] 99 P 881. Evidence held 106 Minn. 197, 118 NW 1014. For sufficiency to not show return to be false or insuff-clent, and no further return was required. 106.

People v. Bingham, 117 NYS 363.

42. Authorized by Code Civ. Proc. 55 1997, 2133. People v. Buffalo, 62 Misc. 313, 114 NYS 1077. In action to review paving assessment where petitioners sought to amend their petition by allegging that board of assessors made false report and that city council in letting pavement contract violated charter requirement held an abuse of discretion to refuse to permit such amendment. People v. Raymond, 129 App. Div. 471, 114 NYS 365.

01. Such matters being left for later determination. People v. Buffalo, 62 Misc. 313, 114 NYS 1077.

01. People v. Buffalo, 62 Misc. 313, 114 NYS 1077.

01. Bush v. Roberts, 4 Ga. App. 531, 62 SE 92.

01. Hill v. Adams Exp. Co. \[N. J. Law\] 71 A 683.

01. Under Rule 32, return shall be deemed complete, if not objected to within 5 days after service. Hill v. Adams Exp. Co. \[N. J. Law\] 71 A 683. Technical defects in the return were waived. District of Columbia v. Brocke, 29 S. Ct. 560. Objections to bond were waived. Bush v. Roberts, 4 Ga. App. 531, 62 SE 92.

01. McDonald v. McDonald, 141 III. App. 259.

01. King Bros. & Co. v. Turner \[Ga. App.\] 65 SE 221.

01. People v. Buffalo Board of Assessors, 193 N. Y. 248, 86 NE 466. A writ should not be quashed when it presents sufficient facts to call for a determination of the

## 13 Cur. Law. Certiorari SS 4.

the writ," will be considered. However, questions upon which the jurisdiction of the lower court depends and based upon matters which are not required to be made of record, may, in some cases, be reviewed from the return, although not contained in the record." In such case the return is conclusive only when made by the same person before whom the proceedings were had." The inquiry is usually confined to questions of law," and concerned only with whether the proceedings reviewed indicate that jurisdiction was exceeded or that judicial functions were exercised erroneously." As a general rule, the court will not review findings upon questions

that plaintiff was interested party. Raper shall be considered. Curran v. State \[Or.\] v. Dunn \[Or.\] 39 P 889. Record was conflusive whether it spoke the truth or not. State v. Buchanan County Ct., 135 Mo. App. 143, 116 SWV 14. Even if record be false, 14 cannot be contradicted by reviewing court. Curran v. State \[Or.\] 89 P 420. Inquiry ls confined to face of record by common law and statute, and judgment, though writ and papers upon which writ was was not reviewed. Winkler Brokerage Co. v. Courson \[Ala.\] 49 S 341. Evidence outside the return will not be considered. Gay v. Eugene \[Or.\] 100 P 806; State v. Emerson, 137 Wis. 392, 118 NWV 836. Record is only evidence necessary in proceedings under writ of review in Oregon. Curran v. State \[Or.\] 99 P 420. In review of order granting liquor license, the question of whether local option law had been adopted in same vicinity, which question was not presented by the record, was not considered. State v. Mitchell \[Mo. App.\] 119 SWV 498. Matters not of record, there being no transcript of evidence or affnative finding of fact, would not be considered in reviewing discharge of accused in contempt proceeding. Lewis v. Brennan \[Iowa\] 120 NWV 132. Matters required to be recorded which are debrs the record will not be considered. Griffiths v. Logan City Justice's Ct. \[Utah\] 100 P 1064. Refusal of continuinance would not be reviewed where record failed to disclose that any motion 'for continuinance had been filed. Atlantic C. L. R. Co. v. Cohn & Co., 4 Ga., App. 854, 63 SE 572. Questions presented in petition held not part of record. Raper v. Dunn \[Or.\] 99 P 889. State of the case, signed by judge, unless diminution has been alleged, held not properly part of record. New Jersey Board of Health v. Vanderbus \[N. J. Law\] 72 A 125. Petition for review is not part of record. Michell v. Portland \[Or.\] 99 P 881. Recital of facts in opinion filed by court of quarter sessions in desertion pro-ceeding does not bring them upon record for purposes of review. Commonwealth v. Brownell, 35 Pa. Super. Ct. 249.

60. Michel v. Portland \[Or.\] 101 P 388. rvg. \[Or.\] 99 P 881; Griffiths v. Logan City Justice's Ct. \[Utah\] 100 P 1064. Real mer-Its are determined from the answer returned. Bush v. Roberts, 4 Ga. App. 531, 62 SE 92. Mere fugitive paper contradictory of official return was disregarded. Bern- stein v. Thayer \[Mch.\] 16 Det. Leg. N. 835, 122 NWV 865. Proceedings of highway commissioner were reviewed as disclosed in his return, which was taken as true. Gor- han v. Johnson \[Mich.\] 16 Det. Leg. N. 387, 122 NWV 181. Return supersedes the petition, in determining what questions * 734 ().

- 67fact, which are supported by any evidence,67nor will it consider moot questions,68collateral issues,69matters not essential to the return,70or matters which relate to the exercise of rightful jurisdiction.71A material unsupported finding of fact is reviewable, where the finding is such as to be a controlling error of law.72A finding on a question of fact will not be reviewed, however, unless the court have before it the entire testimony.73The court is not called upon in certiorari to pass upon the admissibility of evidence.74The record cannot be impeached by the filing of a stipulation agreed to by the parties.75A statement contained in the return does not necessarily preclude the court from looking into the evidence thereon, which is contained in the record returned.76The opinion of the court below will be examined in so far as it may be necessary to determine the basis of its action.77Material questions will ordinarily be determined only upon formal hearing and full argument and not at the hearing on a preliminary application.78The regularity of the proceedings of a lower court, necessary to give it jurisdiction, will be presumed until the contrary is shown.79Several proceedings which had but a single object may be reviewed under the same writ.80

other grounds \[Or.\] 101 P 388. Whether viewing order granting preliminary injunction in patent suit. Leeds & Catlin Co. v. charter and ordinances in disposition of Victor Talking Mach. Co., 213 U. S. 301, 218. matter before it was jurisdictional ques- 53Law. Ed. --.

- 67. Masterons, or denials of, or conclu- 737N 271. In re Phillips, 154 Mieh. 139, 15 Det. Leg. N. 683, 117 NW 630; Bowler v. Osborne, 75 N. J. Law, 903, 70 A 149. Miehell, V. Portland \[Or.\] 92 P 881, rvd. on other grounds \[Or.\] 101 P 388. Not dis- 71. Determination of whether any benefites clearly against the proof. People v. Helms, 112 NYS 139. Court will not consider preponderance of evidence where substantial conflict exists. State v. Buckham \[Minn.\] 121 NWY 217. Whether grounds existed for removal of assistant police parton wars question of fact. People v. Harvey, 127 App. Div. 211, 111 NYS 167. Finding by board of trustees in granting policemen's pension that pneumonia from which he died was contracted while on duty was question of fact. State v. Board of Trustes of Policemen's Pension Fund, 138 Vris. 133, 119 NWY 806. Conclusions of fact were not reviewed as trial sould not be had de novo on certiorari. Ex parte Dickens \[Ala.\] 50 S 218. Findings of commissioner of City of New York on dis- 737N 271. While policeman, based on conflicting evidence, were not reviewed. People v. Bing- 737N 271. While policeman, 130 App. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 131 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 130 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 131 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 132 NP. Div. 710, 115 NYS 639. Dis- 737N 271. While policeman, 133 NP. Div. 710 18 Cur. Law. CERTIOARI SS 7.

In New York, in certiorari under the tax law, the court has the power to take further evidence, or to direct that further evidence be taken before the referee.\[81\]

On rehearing, the cause must be submitted on the record as it was at the former submission.\[82\]

SS 5. _Judgment_.\[83\] See 11 C. L. 600. The only judgment at common law, and under the rule yet prevailing in some states, is either to quash the proceedings or to sustain the same.\[84\] Under the procedure in other states, error of the court below, as disclosed by the record, may be corrected,\[85\] or the lower court may be directed to so modify its judgment as to make it legal,\[88\] or the case may be remanded for further trial where it is not absolutely controlled by some question of law.\[87\] A judgment may be valid and the reason stated therefor be erroneous.\[88\]

SS 6. _Costs_.\[89\] C. L. 552. This subject is treated elsewhere.\[89\]

SS 7. _Review of certiorari_.\[90\] See 11 C. L. 600. Only matters properly included in the records of the lower court,\[91\] and to which exceptions have been saved, will be considered on a review of certiorari.\[92\] The discretion of the next lower court in ordering a new trial on certiorari will not usually be disturbed.\[93\] A judgment of a lower court quashing a writ of certiorari is generally reviewable, when it is rendered on the merits of the case.\[94\]

Challenges; Chambers and Vacation, see latest topical index.

80. Common object was location of same \[not error of law which was absolutely controlhouse on same site. Southworth v,rolling. Id.

01. Lewis v. Brennan \[Iowa\] 120 NWV 332.

01. 87 NEE 403.

01. People v. State Board of Tax Com'rs, held valid. Id.

192 App. Div. 604, 117 NYS 81.

81. 82. Afflavits, filed after granting of re-

01. Search Note See Certiorari, Cent. Dig. hearing, stricken. Booker v. Grand Rapids **81** 196-298; Dec. Dig. $ 70; 6 Cyc. 839-842; Medical College \[Mich\]. 16 Det. Leg. N. 56, 118 NWV 589.

01. Petition for writ of certiorari does not become part of record until granted and

01. 185-194; Dec. Dig. $ 63; 6 Cyc. 833-837; 4 A. & E. Enc. P. & P. 301.

01. Winkler Brokerage Co. v. Courson

192 AlA.14 B 841. In Wisconsin, the judgment upon writ of certiorari can only affirm

1937 Or reverse the judgment of determination

194 NYS 829.

195 NWV 836.

85. Error in denying petitioner's legal

1961 under admitted facts could be corrected. Town of Union V. Hudson County

1977 NYS 81.

86. Judgment of lower court against partnership and individual members, where evidence of existence of partnership was not

1988 NYS 81.

1999

19999

# Champerty and Maintenance.

The scope of this topic is noted below.\[96\]

In General, 736.

Grants of Land Held Adversely, 736.

Agreements as to Contingent Fees and Parment of Expenses at Trial, 737.

In general.\[See 11 C. L. 601. Maintenance is an officious intermedding in a suit by assisting either party with money or otherwise to prosecute or defend it; and champerty is a species of maintenance whereby a stranger to the suit agrees to carry it on at his own expense, in consideration of an agreement that he shall receive a share of its proceeds.\[97\] The usual laws with regard to champerty and maintenance do not apply in New Jersey.\[98\]

Grants of land held adversely.\[See 11 C. L. 601. --Grants of land by persons out of

13 Cur. Law. CHAMPERTY AND MAINTENANCE. 73%

possession "9" are at common law and, in some states by special statutory provision,1 voidable as to the persons in adverse possession and those claiming in privity with them,2 but are good as to the grantor, his heirs,8 and assigns,4 unless abandoned or rescinded.5 While it has been said that ouster which will avoid a deed is the same as that which would make a perfect title by adverse user in the occupant,4 the possession must be actual 7 and exclusive 8 under claim of title,9 and constructive possession may be sufficient under the statute of limitations which is not sufficient under the champerty statute,10 and a mere boundary dispute is not sufficient to avoid a conveyance.11 Possession by the state will not affect the validity of a conveyance of land not owned by it.12 The champerty statutes do not usually apply to judicial sales,18 or to resales by the purchaser thereat.14

\_Agreements as to contingent fees and payment of expenses at trial.\_See 11 C. L. 600. Where the common-law doctrine of champerty, as applied to agreements between attorney and client, does not prevail,15 an agreement that an attorney shall receive a percent of the amount recovered as his fee, is not improper 16 in the absence of

of litigation."--From Smith v. Hartsell, 150 not apply). Meade v. Ratiff \[Ky.\] 118 SWV N. C. 71, 63 SE 172. 98. Bigelow v. Old Dominion Copper Minning & Smelting Co. \[N. J. Eq.1 71 A 153. English laws in respect thereto have not been adopted. Id. There is no law or rule of public policy to prevent stockholders of corporation from agreeing among themselves to aid corporation in proper ways in its litigation against third parties, and to use their influence as stockholders to see that out of proceeds of litigation, if successful, the reasonable disburements made by stockholders in company's behalf shall be refunded, and a special dividend be made, if lawful, out of net proceeds. Id. 99. Paton v. Robinson, 81 Conn. 547. 11 A 730. English statute (St. 32 Ren. VIII. c. 9) is not part of common law of Arkansas, having been abrogated by statute. Moore v. Sharpe \[Ark.\] 121 SWV 341. Common law as to champerty not adopted in New Jersey. Bigelow v. Old Dominion Copper Minning & Smelting Co. \[N. J. Eq.1 71 A 153. 1. Gen. St. 1002, 3 404. Paton v. Robinson, 81 Conn. 547, 71 A 730. Real Property Law, 81 255. McAaliff v. Hughes, 128 App. Dig. 585, 112 NYS 486; Green v. Horn, 128 App. App. Div. 686. 112 NYS 993. Code 1896. 1 1530 (amended by Code 1907, 8 8389, but not so as to affect any existing right, rem- edv, or defense). Carr v. Miller \[Ala.\] 49 S 802. Voidable though made in good faith and for valuable consideration. Meade v. Ratiff \[Ky.\] 118 SWV 271. 2. Paton v. Robinson, 81 Conn. 547, 71 A 730: Green v. Horn, 128 App. Div. 686, 112 NYS 992; Meade v. Ratiff \[Ky.\] 118 SWV 271. Held vold as to party in adverse possession under statute as it existed at time of transfers. Carr v. Miller \[Ala.\] 49 S 802. 3. Carr v. Miller \[Ala.\] 49 S 802. Grantor and his heirs are stopped and grante may suce for and recover possession in name of grantor and then protect himself in his title under such deed. Paton v. Robinson, 81 Conn. 547, 71 A 730. 4. Good as to subsequent purchaser of grantor. Meade v. Ratiff \[Ky.\] 118 SWV 271. 5. Parties may place themselves in statute quo by rescission (Russell's St. 1783 does 13 Cur. L. 47.

any agreement that such attorney shall pay any part of the costs.17 Nor are other contracts for a contingent fee invalid,18 though they contain certain divisible invalid stipulations.19

\_Assignment to or purchase by attorney of chose in action.See * C. L. 854.\_The acquirement by an attorney from his client of an interest in the subject-matter of a pending action is presumptively fraudulent.20 The assignment to assignor's attorney of an unliquidated claim for personal injuries, prior to judgment, is contrary to public policy.21 On the other hand, a person, even though he be an attorney, is not usually precluded from purchasing a debatable title to land.22 In Louisiana,23 however, the transfer to an attorney or other court officer of a litigious right 24 is voidable at the instance of the party to the suit against whom the right is to be exercised.25

\_Champerty as a defense.See 11 C. L. 803.\_A champertous agreement does not necessarily defeat a just cause of action.26

_Maintenance.See 11 C. L. 604._--In the absence of any bargain to share in the recovery, it is not violative of law or public policy to give financial and other aid to the suit of a minor 27 or of a poor suitor who is prosecuting a meritorious cause of action.28 Nor is it improper for one to promote the suit of another when he has any interest whatever in the thing demanded, apart from that which he may acquire by an agreement with the suitor.28 A contract whereby a city in consideration of the payment of the expenses of an action undertakes to give control of the prosecution of such action to an individual is void and against public policy.20

Footnote 28: A similar argument is made for the case of a _L. 604._--A charitable gift is a voluntary donation of money or other property usually for the relief of sufferers from poverty or illness or for the advancement of education or morals.29

Footnote 29: A similar argument is made for the case of a _L. 604._--A charitable gift is a voluntary donation of money or other property usually for the relief of sufferers from poverty or illness or for the advancement of education or morals.29

Footnote 29: A similar argument is made for the case of a _L. 604._--A charitable gift is a voluntary donation of money or other property usually for the relief of sufferers from poverty or illness or for the advancement of education or morals.20

Footnote 29: A similar argument is made for the case of a _L. 604._--A charitable gift is a voluntary donation of money or other property usually for the relief of sufferers from poverty or illness for the advancement of education or morals.20

Footnote 29: A similar argument is made for the case of a \_L.

- 13Cur. Law. CHARITABLE GIFTS SS 1.

Reasonable certainty is required in the designation of persons and purposes " in the absence of statute dispensing with this rule,\[85\] but it is generally sufficient if the class to be benefited is specified, the selection of the immediate beneficiaries being left to the trustees.\[86\]

- will pay his claim. Smith v. Hartsell, 150 authorize perpetual trusts in hands of pri-N. C. T1, 63 SE 172. Insurer of employer against damages for injuries to employees has sufficient interest. Breeden v. Frank-port Marine Aceident & Plate Glass Ins. Co., monument, is a "statutory trust," and not (Mo.) 119 SW 676. Not improper for one having such interest to agree to testify, and to do all things proper and legitimate to aid their recovery. Id. See ante, note under subdiv., In General.
- 30. City of Carbondale v. Brush, 133 Ill.
- 31. Matters applicable to trusts in general (see Trusts) and to religious societies (see Religous Societies \*), hospitals (see Asylum and Hospitals \*), schools (see Schools and Education \*), and the care of papers (see Paquers *) in particular, and to the taxation of the property of charitable institutions (see Taxes *) and their liability for the torts of their agents and servants (see topics dealing with the par-ticular institution involved, such as Asy-Iums and Hospitals,* and the like), are treated in separate articles. Reference should also be had to the topics dealing with the interpretation and validity of deeds (see Decads of Convevance*) and wills (see Willis *), and with the law of real (see Real Property *) and personal (see Property*) property, and the rule against perpetuities (see Perpeturities and Accumulations*).
- 32S. Search Note See notes in 3 C. L. 679: 7 Id. 626, 627; 14 L. R. A. 410; 20 Id. 465; 32 Id. 625; 5 L. R. A. (N. S.) 687; 6 Id. 320; 7 Id. 471, 1119; 27 A. S. 51, 52; 59 Id. 127; 63 Id. 248; 527; 64 Id. 156; 65 Id. 118; 4 Ann. Cas. 1139; 9 Id. 120; 10 Id. 1030.
- 33See, also, Charitable, Cent. Dig. SS 1-17, 34-61: Dec. Dig. SS 1-19, 21-30; 6 Cry. 897- 930, 925, 896, 939-946, 948-977; 5 A. & E. Enc. L. (2ed.) 912, 915, 925.
- 33. Trust for art gallery is a charitable trust. Mason v. Bloomington Library Ass'n, 237 Ill. 442, 86 NE 1044. Request to "the poor of Vorost, Gelderland, Netherlands" held for a "charitable purpose," Klumer v. Vrieland (Iowa) 121 NWV 34. Request to a city, subject to certain contingencies, to found and maintain a hospital, creates a charitable trust on gift taking effect. Ware v. Fitethurg, 200 Mass. 61, 85 NE 951. Gift causes moritis to priest for masses for donor's soul held valid as a charitable gift. Glmore v. Lee, 237 Ill. 402, 86 NE 568. Between of money to be loaned for interest to otherwise v. Taysham-deaserving Armennians by society to be in-corporated without stock held to call for creation of a corporation not ereatable nn-der laws of state, and held not sustainable as a charitable gift. Tavshamjian v. Abbott, 89 Misc. 644, 112 NYS 583. Perpetual trust to take care of private burial to cannot be upheld as a public charitable gift. Cannot be created unless authorized by statute. Mason v. Bloomington Library Ass'n, 237 Ill. 442, 86 NE 1044. Hurd's Rev. St. 1905. c. 21; 88 22-28, authorizing creation of trusts to take care of private burial lots in hands of a board of directors, held not to be created.
- 34G. If of property to trustees to pay over to trustees of a certain society in India or wherever society might be located, or acting under a deed of trust referred to, held void for uncertainty in designation of trustees. Korsstrom v. Barnes, 167 F 216. (see Religous Societies \*), hospitals (see Gift to be used "in obtaining translations" and Hospitals \*), schools (see Schools and Education \*), and the care of believed to exist in India and elsewhere, for use of the Theoophical Society and its branches all over the world," held void for uncertainty in designation of purpose. Id. Evidence held to show attempt to create effort "for charity" without naming the charitable purposes. McPherson v. Byrne \[Mich.\] 15 Det. Leg. N. 1028, 118 NW 985. Where estate intended for a church and masonic hall was not bequeathed to any one and beneficiaries of appropriation for hall were not named, nor any description or directions for its building given, devise for hall was void for indefiniteness. Infra-ham v. Sutherland \[Ark The law of decedent's domicile and situs of the property determines the validity of a charitable trust to be elsewhere administered.\[37\] In some states the amount of a testamentary gift to charity is limited where decedent leaves relatives or heirs,\[38\] or the gift is made illegal where made within a specified time before testator's death.\[39\] The rule against perpetuities is generally held inapplicable to charitable gifts,\[40\] but the contrary is also held,\[41\] and charitable institutions are such as have for their objects the administration of charities rather than pecuniary gain.\[42\] A persons in said home, or in maintaining free beds in their infirmary in the discretion of the legate.\[43\] Baltzell v. Church Home & Infirmary \[Md.\] 73 A 151. Beaucetts & "women"s work in foreign fields" and to "women"s work in home lands" held not too indefinite as to beneficiaries in view of circumstances and conditions surround- \[12\].\[44\] A flight to apply income for care of testator's corliss \[Mich.\] 15 Det. Leg. N. 971, 118 NWW 938. Money to First Presbyteria Church of T. of which testarrix was member, and by succeeding clause a sum to be divided between home and foreign missions, held to boards of home and foreign missions of Presbyteria church, and not void for uncertainty. In re Johnson's Estate \[Iowa\] 119 NWW 275. To "the poor of Voorst, Gelardland, Netherlands," held sufficiently certain, Voorst being a municipal corporation having certain institutions supporting the poor.\[43\] Klampert v.\[43\] 121 NWW 34. Charitable trust governed by laws of testator's domicile and situs of property.\[44\] A 151 NWW 283. Validity of bequest of property to the poor of a designated place will depend on law of decedents domicile and location of the property rather than place of distribution.\[43\] Klampert v.\[43\] 121 NWW 34.

SS. One attacking a will on ground it gives more than half of estate to an educational institution in violation of Laws 1860, p. 607, c. 360, has burden of showing invalidity thereof. In re Durand, 194 N. Y. 477, 87 NE 677. In determining whether testator, leaving wife and child to whom he gave life estate, remainder to education, gave educational institution more than half of estate in violation of Laws 1860, c. 360, court must consider value of estate at testator's death and reckon the then present value of life states under mortality tables rather than lives as they were actually extended.\[44\] Id.

SB. Request in trust for benefit of a hospital held not void because will was executed within two months before testatrix' death. Laws 1848, c. 319, c. 632, 8 1, relating exclusively to direct bequest. In re Beaucers's Estate, 623, 155, 116 NYS 424.

40. See, also, Perpetuities and Accumulations. Trust held invalid as contravening rule against perpetuities where question whether fund should be devoted to charity was left in discretion of trustes. In re Peabody's Estate, 154 Cal. 173, 97 P 184.

Word electromyasymary in Const. art. 20, 8 9.

forbidding perpetuities except for elee-mosymary purposes, ls synonymous with charitable. Id. Fund provided to care for burial lot. Mason v. Bloomington Library Ass'n, 143 Ill. App. 39, public charity is one the benefits of which extend generally to all the members of the community of the class contemplated.43 The validity of charitable trusts depends largely on the statutes of the various states,44 but it is the policy of the law to uphold such trusts wherever possible,45 and, where a charity cannot be enforced precisely as prescribed by the donor, a method as near his intention as conditions permit will be adopted.46 The doctrine of cy pres cannot, however, be applied where

society held not exempt from liability for

negligence of employees resulting in personal injury on theory it was a charitable

- 4468, in absence of contrary statute or corporation and mere trustee for a public purpose. Garitland v. New York Zoological

- 45. Civ t o Keene v. Eastman \[N. H.\] 72

- 46. Theorization of a charitable corporation

held not invalid by failure of certificate to

- 4745 _Actu_'s V. Fidelity Trust Co. \[Ky.\] state incorporators were "free, white person, citizens of the United States, and a

- 4746 _Actu_'s V. Fidelity Trust Co. \[Ky.\] state incorporators were "free, white person, citizens of the United States, and a

- 4747 _Actu_'s V. Fidelity Trust Co. \[Ky.\] state incorporators were "free, white person, citizens of the United States, and a

- 4748 _Actu_'s V. Fidelity Trust Co. \[Ky.\] state incorporators were "free, white person, citizens of the United States, and a

- 4749 _Actu_'s V. Fidelity Trust Co. \[Ky.\] state incorporators were "free, white person, citizens of the United States, and a
  the donor has himself directed what shall be done in case of failure of the charitable use contemplated,\[47\] nor where a specific charity fails and no general charitable purpose is disclosed,\[48\] and where a bequest is burdened with a condition but for which it would not have been made, and the condition is illegal or impossible of fulfillment, the gift must fail.\[49\] The statute of charitable uses is recognized in at least some of our states so far as consistent with our institution,\[50\] but the disposal of property by the sign manual of the crown under that statute did not become a part of the common law of this country.\[51\]

SS 2. \_Capacity of done or trustee.\[52\]\_See 11 C. L. 608_Trustees or beneficiaries must have the requisite capacity.\[53\] Corporate trustees or donees must have power to accept and administer the property in accordance with the terms of the gift,\[54\] and hence an institution cannot accept a gift which is inconsistent with its previously settled obligations or purposes.\[55\] The amount of property which may be accepted by a corporation is sometimes limited by statute.\[56\]

SS 3. \_Interpretation and construction.\[57\]\_See 11 C. L. 609_Whether a gift is also-association to administer trust. Mason v. \[58\], \[59\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[92\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\]
Note or in trust to charity, \[88\] and who were intended as the beneficiaries, \[88\] are largely questions of intention. A provision for a "free" hospital does not necessarily prohibit the receipt of compensation from patients able to pay. \[40\]

SS 4. \_Administration and enforcement. \[61\]\_See 11 C. L. \[61\].\_The donor may name the trustees and determine the manner of appointing successors, \[62\] failing in which the court may appoint trustees, \[83\] for a charitable trust will not be suffered to fail for want of trustee. \[64\] The terms of the particular gift and the circumstances of each ease must be looked to in determining the manner in which the trust should be administered, \[68\] the propriety of holding funds for further accumulation, \[68\] and the right of claimants to compel direct distribution. \[67\] The principal or corpus of a trust may be held in one state and the income thereof expended in another. \[68\] A statute may be passed in aid of the administration of a bequest to a city for charitable uses. \[69\] The courts will not take jurisdiction of matters concerning the inter-

Dec. Dig. **SS1**-**88**; **6** Cyc. **949**, **951**-**956**, **961**-**965**; **5** A. \*\*& E. Enc. L. (2ed.) **912**, **915**.

\*\*SS. Request that residue be used in part for charity held to rest only on conscience of legates. In re O'Regan's Will, 62 Misc. \[52\], 117 NYS 96. \[53\]. Evidence held to show beneficiaries to be boards of home and foreign missions of Presubteriran church of which testarix was member. In re Johnston's Estate \[Iowa\] 119 NWP 275. Where testarix made bequest to "women's work in foreign fields," and to "women's work in home lands," and to Protestant missionary work among colored people of South, evidence held to show beneficiaries to be "Women's Board of Missions of Interior," "Women's Home Missionary Union of Congressional Churches of Michigan," and "American Missionary Association," respectively. Gilchrist v. Corliss \[Mich.\] 15 Det. Leg. N. 971, 118 NWP 938. \[54\]. Request to Art Museum of San Francisco held to "San Francisco Art Association" with which testator was familiar, there being no association with first mentioned name, and a certain "Park Museum," another claimant, not being extant when testator left city. Walter v. Walter, 60 Misc. \[55\], 113 NYS 465; Walter v. Frank, 118 NYS 248. \[56\]. Free heId to mean thrown open or made accessible to all for public use. Webber Hospital Ass'n, 71 A 1032. \[57\]. See 11 C. L. \[61\]; the trustees and determine the manner of appointing successors, \[62\] failing in which the court may appoint trustees, \[63\] for a charitable trust will not be suffered to fail for want of trustee. \[64\] The terms of the particular gift and the circumstances of each ease must be looked to in determining the manner in which the trust should be administered, \[68\] the propriety of holding funds for further accumulation, \[68\] and the right of claimants to compel direct distribution. \[67\] The principal or corpus of a truste may be held in one state and the income thereof expended in another. \[68\] A statute may be passed in aid of the administration of a bequest to a city for charitable uses. \[69\] The courts will not take jurisdiction of matters concerning the inter-

Dec. Dig. **SS1**-**88**; **6** Cyc. **949**, **951**-**956**, **961**-**965**; **5** A. \*\*& E. Enc. L. (2ed.) **912**, **915**.

\*\*SS. Request that residue be used in part for charity held to rest only on conscience of legates. In re O'Regan's Will, 62 Misc. \[52\], 117 NYS 96. \[53\]. Evidence held to show beneficiaries to be boards of home and foreign missions of Presubteriran church of which testarix was member. In re Johnston's Estate \[Iowa\] 119 NWP 275. Where testarix made bequest to "women's work in foreign fields," and to "women's work in home lands," and to Protestant missionary work among colored people of South, evidence held to show beneficiaries to be "Women's Board of Missions of Interior," "Women's Home Missionary Union of Congressional Churches of Michigan," and "American Missionary Association," respectively. Gilchrist v. Corliss \[Mich.\] 15 Det. Leg. N. 971, 118 NWP 938. \[54\]. Request to Art Museum of San Francisco held to "San Francisco Art Association" with which testator was familiar, there being no association with first mentioned name, and a certain "Park Museum," another claimant, not being extant when testator left city. Walter v. Walter, 60 Misc. \[55\], 113 NYS 465; Walter v. Frank, 118 NYS 248. \[56\]. See 11 C. L. \[61\]. The donor may name the trustees and determine the manner of appointing successors, \[62\] failing in which the court may appoint trustees, \[63\] for a charitable trust will not be suffered to nal management of charitable associations unless it appears that financial or property rights are involved.70

**Charter Party, see latest topical index.**

**CHATTEL MORTGAGES.**

_The scope of this topic is noted below.71_

**SS 1. What Constitutes a Chattel Mortgage, 8. Disposal and Use of the Property by the Mortgage, 748.**

**SS 2. Subject-Matter, 745. Title and Interest**

**SS 3. Llens and Priorities;**

**SS 4. The Portage, 749.**

**SS 5. Consideration, 747.**

**SS 6. An Assignment of the Mortgage, 751.**

**SS 7. Frundulent Conveyances, 747.**

**SS 7. The Instrument, Form, Execution and Delivery, 747.**

**SS 8. The Instrument, Form, Execution and Delivery, 747.**

**SS 9. Recognition, 754.**

**SS 10. Other Remedles as Between the Paraffindiuxs, 748.**

**SS 11.**

**SS 12. Remedles as Against Third Persons, or Rights, 74S.**

chatel mortgage is distinct, however, from an absolute sale,\[82\] a conditional sale,\[83\] an assignment,\[84\] a pledge,\[85\] or a mere provision, in another instrument, for security,\[86\] or for reservation of title.\[87\] A chattel deed of trust may be made to answer the purpose of a chattel mortgage.\[88\]

SS 2. _Subject-matter.\[89\] What may be mortgaged.\[85, 11 C. L. 612\]_--As a general rule, any assignable personal property may be mortgaged.\[90\] This ordinarily includes such things as growing crops,\[91\] future acquired property,\[92\] and wages to be earned in the future under an existing definite contract of employment.\[88\] At common law, nothing can be mortgaged which is not in existence, but equity may now apply a different rule,\[94\] unless the thing mortgaged be a mere expectancy dependent on contingencies.\[95\] A mortgage on property not yet in existence is a mere exucutory contract, however, and is binding only as between the parties and when the property shall have come into existence.\[90\]

_Title and interest of mortgagor.\[85\]_ 11 C. L. 614\_--It is essential that the mortgagor be the owner of the property \[97\] or of a mortgageh interest therein,\[98\] or that he have special authority from the owner to execute the mortgage,\[99\] and a sumption of facts rected, held not to apply. \[Nat. Bank v. First Nat. Bank \[Tex. Civ. Cabrera v. American Colonial Bank, 29 S.\] 114 SW 176: Macdonnell v. Buffalo Ct. 623.\] 92. 85 NE 801; Adams v. Young, 200 Mass. over chattels to cover cheeks drawn by owner, held to be sale and not chattel mortgaged which does not belong to gage. Leak v. Bank of Wadesboro, 149 85. 17. 62 SE 733.\] 93. Sale of household furniture, title to remain in seller until payment, with right in seller to retake on default, held to be conditional sale and not chattel mortgage.\[85\] 1024, mortgage on crop to be grown on LIBdon v. Garrett \[Ala.\] 50 S 323.\] 94. Written invalid assignment of mortgaged by waya of security held out to be chattel mortgage. State v. Hurlburt \[Conn.\] 95 A 1079.\] 96. 97. 98. Transaction Is pledge and not mortgage, whereby neither absolute nor defeasible title to personality is transferred by owner, but only possession with power to sell if default be made in payment of note secured. Grand Ave, Bank v. St. Louis Union Trust Co., 135 Mo. App. 366, 115 SW 1071.\] 98. Provision in lease that improvements should be considered as personality and be security for payment of rent held not to be chattel mortgage. Niagara Falls Hydraulic Power & Mfg. Co. v. Schermerhorn, 132 App. Div. 442. 117 NYS 10.\] 97. 98. 99. 11.1 1.

746 CHATTEL MORTGAGES SS 2. 18 Cur. Law.

mortgage given by one shown to be without right or title is a nullity,1 but authority to mortgage may be implied 2 from the facts as where the mortgagor has been intrusted with the possession, title and indicia of ownership of the property,3 and the mortgagor's ownership of the property will be presumed until the contrary is shown.4 An agent, as such, has no right to mortgage the property of his principal.5

Footnote 1: The term "closes in action" held not to include other agents against mortgage's right of action against mortgage for his own act of conversion. Macdonnell v. Buffalo Loun, Trust & Safe Deposit Co., 193 N. Y. 93, SSE N 801. Mortgage covering choses in action coming into existence after deduction could held not intended to include choses in action coming into existence before default. Id. Term sawmill held not to include other property specifically mentioned in mortgage, although without such mention it would have included them. McGregor v. Port Huron Engine & Transfer Co., \[Tex. Civ. App.\] 129 SW 1128. Attempted mortgage on material properly of corporate by stockholder held to have been intended to cover mortgagor's interest. Thompson v. Grace \[Ark.\] 129 SW 397. H. First Nank v. Manser \[Me.\] 134; Hickson Lumber Co., 150 N. C. 282, 63 SE 1045. Intention to include after-acquired property was manl-rest by mortgage of "all the property" wherever the same is situated, now owned by the mortgagor, "or shall be owned during the continuaue of the liability herein-after mentioned." Hickson Lumber Co. v. After mentioned Co., 151 N. C. 282, 63 SE 1045. Mortgage covering goods thereafter to be erty described,\[12\] is included, rest largely in the intention of the parties. A mortgage will not be construed to include property not in some manner mentioned therein.\[18\] Parol evidence is admissible to show that s particular article is included within the general words of description, but not to supply an essential word which has been omitted.\[14\] The burden of proving the identity of the property mortgaged is upon the mortgagee.\[16\] The sufficiency of the description \[16\] and the identity of the property mortgaged \[17\] are jury questions.

SS 3. \_Consideration.\[18\]--\_See 11 C. L. 615--\_The consideration determines the measure of the mortgagee's interest in the mortgaged property.\[19\] Among the things which will constitute sufficient consideration are pre-existing debts,\[20\] future, contingent liabilities,\[21\] future advances limited in amount,\[22\] though optional,\[23\] and the payment of debts owed by the mortgagor to a third party.\[24\] The question of whether the debt secured is based on honest consideration is for the jury.\[25\]

SS 4. \_Fraudulent conveyances.\[See 7 C. L. 836--\_This subject is fully treated in other articles.\[26\]

SS 5. \_The instrument, form, execution and delivery.\[27\]--\_See 11 C. L. 616--\_Delivery and acceptance of a chattl mortgage are essential to give it validity.\[28\]

\_Alleration, reformation and construction.\[See 11 C. L. 617--\_The law in force when a mortgage is made is a part of the contract.\[29\] A mortgage will be construed so as to do equity between the parties.\[30\] Due regard will be given, for the manifest intention of the parties, in the determination of disputs with reference to particular matters,\[31\] such as the debt secured \[32\] or of the property covered.\[33\] The inter-

''' purchasedcoveredafter-acquired merchant-dise.Adamsv.Young,200Mass.588,86NE942.12.Mortgagedoesnotcoverincreaseunlessspecified.Ayrev.Hixson\[Or.\]98P518.13.MillsGuyCo.v.Dickerson\[Miss.\]48S404.Mortgagereferringonlytopreperlyasthoftwifeheldnotnecessarilyinduchesband'sproperty,althoughhusband'alsosignedmortgage.Id.Id.Dierlingv.Pettit\[Mo. App.\]119SW543.15.InreGoldsmith,168F779.Mortgagewasrequiredtoprovewhatcattlewereincluded.Kimc.BankofEdagement\[IS.D.\]119NIV1003.16.Sigel-CampionLiveStockCo.v.Holly,44Colo.580,101P68;Reeves&Co.v.Brown\[Kan.\]102P840.17.MillsGuyCo.v.Dickerson\[Miss.\]45S404;WeberImplementCo.v.Duuard\[Mo. App.\]121SW608.Sohelbwheretherewasvariancebetweendescriptioncontainedinducetandinmortgage.WeberImplementCo.v.Dunard\[Mo. App.\]121SW608.18.SearchNote:Seenotein19L.R.A.590.See,also,ChattelMorstages,Cent.Dig.1178-82;Dec.Dig.$2;6Cyc.1010-1022;$A.&E.Enc.L.(2ed.)964.19.Deveyv.Bobbit\[Kan.\]100P77.20.Kellyv.Ryan\[Iowa\]11NIV901.Inthiscaseagreementwasmadeattimedebtwascontracted,thatmortgageshouldbethereaftergiven,andsuchdebtwasnototherwisesecured.Id.Validityofmortgagetakenforpre-existingdebtwasnotaffectedbyfactthatmortgageknowknowmortgagorwasindeedtothet pretation of a renewal mortgage may be aided by a consideration of the original mortgage.\[41\] Stipulations for the payment of attorney's fees must be strictly construed in favor of the mortgagor.\[85\]

The validity of a chattel mortgage will not be affected by an immaterial alteration, either in the mortgage itself,\[86\] or in the note secured by it.\[37\] A substitution of other property for the property mortgaged may be effected by a delivery of such other property to the mortgage.\[86\]

_Renewal affidavits.\[86\]_ 11 C. L. \[41\]\_

SS 6. _Filing or recording and notice of title or rights.\[86\]_ 7 C. L. \[41\]\_--Matters relating to the filing and recording of chattel mortgages, and the doctrine of bona fide purchasers, are treated in a separate article.\[30\]

SS 7. _Tille and possession before default.\[40\]_ 86 11 C. L. \[41\]\_--The validity of a provision in a mortgage stipulating that the mortgage may take possession of the property before default is generally recognized.\[41\]

SS 8. _Disposal and use of the property by the mortgagor.\[42\]_ 86 11 C. L. \[41\]\_--At common law a real or fictitious delivery of the chattels to the mortgage is necessary,\[43\] which requirement, in a more or less limited form, still obtains in some states,\[44\] but the primary purpose thereof being to protect third parties, as between the parties the validity of the mortgage is not affected by failure to comply with statutory substitutes for such delivery,\[45\] and the effect of a stipulation for the retention of the property by the mortgagor is nullified by actual delivery to the v. Manser \[Me.\] 71 A 134. For rules in reference to construction of written instruments generally, see Contracts, 8 4. \[43\], Donoven v. Travers, 122 La. \[46\], 47

SS2. Debt will not include after incurred

44. Under P. L. \[190\], p. 487, SS 4, an affl-manifest from terms of mortgage. First

01. Bank v. Manser \[Me.\] 71 A 134.

01. See ante, SS 2, Description of Property.

01. Hold not error to admit in evdence

immediate delivery of the property, foil-original mortgage of which mortgage

allowed by an actual and continued change

44. timed under is renewal. Maddox v.

01. Donoven v. Travers, 122 La. \[46\], 47

01. Turverville v. Simpson \[Miss.\] 47 S

afflavit substantially complying with this

784. Attorney's fee was allowed on sums

001. Under P. L. \[190\], p. 487, SS 4, an affl-

collected through efforts of attorney, but

v. Solferino \[N. J. Law\] 72 A 79. Mort-

disallowed on sums not so collected, Id.

age and afflavit should be read together

36. Atteration having effect merely to

make plainer the intended description was

blance with statute. Simpson v. Anderson

not material. Benton v. Clemmons \[Ala.\] \[N. J. Err. & App.\] 73 A 49. In case of

47 S 583. Alteration having effect to make

souna fide chattel mortgage, a statutory affl-

available additional testimony was not material, on objection of mortgagor or his

consideration with substantial truth is sum-

prives, in contest on identity of mortgaged property, Id.

cally drawn and not technically precise.

87. Addition of signature of wife to note

was immaterial. Souza v. Lucas \[Cal. App.\] 89.

914. Where the consideration was an

100 P 115.

38. Constructive, If not an actual, delivery of humber was affected by mortgagor

to designate such amount and not neces-

pointing out lumber and telling mortgage

sary to state the consideration of the mortg-

to take charge of it and sell It. American

Sate. Bank v. First Nat. Bank \[Tex. Civ. App.\] 114 SW 176.

S9. See Notice and Record of Title.

40. Search Note See Chattel Mortgages,

Cent. Dig. **SS 19-213**; Dec. Dig. **SS 116-132**;

Sch. A. & E. Eno. L. (2ed.) **SS6**.

41. Such agreement held not bad as

to other creditors. Martin v. Holloway

\[Idahol 102 P 3.

42. Search Note: See notes in 15 A. S. R.

512; 96 Id. **SS2**.

See, also, Chattel Mortgages, Cent. Dig. **SS 24-305**, 465-495; Dec. Dig. **SS 164-170**; mortgagee.44 The sufficiency of delivery in a particular case must, of course, be determined from the acts of the parties in such connection.47 A mortgage permitting the mortgagor to sell the mortgaged property to his own use is fraudulent per se,48 but a sale of the mortgaged property by the mortgagor without the knowledge or consent of the mortgagee does not invalidate the mortgage as to other creditors.49 An agreement, valid between the parties, may be made to the effect that the mortgagor shall remain in possession and dispose of the mortgaged property and apply all or part of the proceeds to the payment of the mortgage debt.50

SS 9. _Liens and priorities; waiver.51- See 11 C. L. 619_

_Duration of mortgage lien.58e 11 C. L. 619_

_Conflucting liens.58e 11 C. L. 619_

The effect upon priority, of notice and record, and of securing possession of the mortgaged property, is treated elsewhere.52 The rights of an innocent purchaser,53 mortgagee, or other lien holder, take precedence over a prior, invalid mortgage,54 or one for which another mortgage ha: been substituted after the adverse rights have accrued.54 A chattel mortgage is ordinarily inferior to a prior vendor's lien created by a bona fide sale,55 especially when the mortgage had knowledge of the existence of such lien.47 A purchase price mortgage may take precedence over a landlord's lien subsequently accruing against the same property.58 Usually a landlord's lien for rents56 and advances 50 is superior to a subsequent mortgage. In Louisiana a lien is given on crops for plantation supplies that is superior to any mortgage lien not givea for such purpose.61

Footnote 58: Ananthson v. Standard Printing & Mfg. Co. \[Iowa\] 118 NW 789.

Footnote 59: Lien given for rent is superior to line of subsequent mortgage on property having protection of leased premises. Gillespie, V. McCleskey \[Ala\]. 49 SS 362.

Footnote 60: Fermiman v. Nowlin \[Ark.\] 120 SW SW 78.

Footnote 61: Landlord's lien for supplies advanced to tenant to make crop held superior. Id.

Footnote 61: Under Civ. Code La. 217.

Footnote 62: Merlin v. Nowlin \[Ark.\] 120 SW SW 78.

Footnote 63: Landlord's lien for supplies advanced to tenant to make crop held superior. Id.

Footnote 64: Under Civ. Code La. 217.

Footnote 65: Under Civ. Code La. 217.

Footnote 66: Under Civ. Code La. 217.

Footnote 67: Merlin v. Nowlin \[Ark.\] 120 SW SW 78.

Footnote 68: Under Civ. Code La. 217.

Footnote 69: Under Civ. Code La. 217.

Footnote 61: Under Civ. Code La. 217.

Footnote 63: Landlord's lien for supplies advanced to tenant to make crop held superior. Id.

Footnote 62: Merlin v. Nowlin \[Ark.\] 120 SW 78.

Footnote 61: Under Civ. Code La. 217.

Footnote 63: Landlord's lien for supplies advanced to tenant to make crop held superior. Id.

Footnote 61: Under Civ. Code La. 217.

Footnote 64: Under Civ. Code La. 217.

Footnote 65: Under Civ. Code La. 217.

Footnote 66: Under Civ. Code La. 217.

Footnote 67: Merlin v. Nowlin \[Ark.\] 120 SW 78.

Footnote 68: Under Civ. Code La. 217.

Footnote 69: Under Civ. Code La. 217.

Footnote 61: Under Civ. Code La. 217.

Footnote 62: Merlin v. Nowlin \[Ark.\] 120 SW 78.

Footnote 63: Landlord's lien for supplies advanced to tenant to make crop held superior. Id.

Footnote 61: Under Civ. Code La. 217.

Footnote 64: Under Civ. Code La. 217.

Footnote The line given by a mortgage for future advances will be prior to the line given by a second mortgage, when such advances are made without actual notice of the existence of such second mortgage.\[62\] A chattel mortgage takes priority over a subsequent attachment \[63\] and the costs of a sale under an execution inferior in right.\[64\] In Colorado a chattel mortgage given between the time that an execution is issued and the levy made is inferior to such execution.\[65\] Where successive chattel mortgages are given on less than the whole of an undivided number of things, rights of selection are given which take priority in the same order as the mortgages.\[66\] Priorities are usually fixed by the law existing when the mortgage was executed.\[67\] As a general rule, the rights of a mortgage will not be affected by any proceedings, to which he is not made a party, instituted by the holder of an inferior.\[68\] or by his failure to take immediate possession upon the levy of an execution upon the mortgaged property,\[69\] or by any act of the mortgagor \[70\] or of a third party,\[71\] subsequent to the execution of the mortgage. The rights of the mortgages as affected by the subsequent bankruptcy of the mortgagor are treated elsewhere.\[72\]

_Waiver,See 11 C. L. 620_-A mortgagor may waive his line or priority rights by oral agreement,\[73\] by conduct inconsistent with an intention to enforce it,\[74\] by delay in objecting to sale of the mortgaged property by the mortgagor,\[75\] or by a statement, to the injury of a third party, that his debt had been paid.\[76\] But a party does not waive his mortgage line by resorting to methods other than foreclosure to collect the note secured.\[77\] Before an agreement to waive will be implied, an intention to waive must be clearly apparent.\[78, 79\]

**62.** In such case, recording of second mortgage does not import knowledge to first mortgage. The Seattle \[C. C. A.\] 170 \[63\], Chips V. Jasper Lumber Co. \[Tex.\] 63. State Bank of West Union v. Keeney, 174 Mo. App. 74, 114 SW 558.

64. Mortgage is entitled to full amount for which property sold without any deductions whatever, for costs or otherwise, when such amount is insufficient to pay his claim. McKenna Bros. v. Brown \[R. I.\] 61 A 450.

01. Under statute (2 Mills Ann. St. 2689), although mortgage took possession of property before levy was made. Lewis v. Smith \[Colo.\] 101 P 762.

01. This rule is not affected by assign-ment of mortgages. South Omha Nat. Bank v. McGillin \[Neb.\] 119 N NV 668.

01. Law determining priorities passed subsequent to execution of mortgage held not to apply. Corbitt v. Nebern \[Ga.\] 64 SE 479.

01. Averill Mach. Co. v. Albritton, 61 Wash. 30, 97 P 1082.

01. Lange v. Cole, 239 Ill. 88, 87 NE 880.

01. Assignment by mortgagor, with consent of mortgage, of recorded lease, held not to affect mortgage's rights under mortgage clause contained in such lease. Stees v. Lind. 106 Minn. 485, 119 NW 67.

01. Mortgage's rights were not affected by attempted invalid levy of attachment. Souza v. Lucas \[Cal. App.\] 100 P 115.

Tortuous removal of mortgaged crops did not impair mortgages' rights. Id.

72. See Bankruptcy, 810 UC, 10D.

01. Catlett v. Stokes \[S. D.\] 121 NUV 103.

01. See post, $ 11.

01. Act of mortgage in petitioning in that mortgaged property had been sold to

**18** Cur. Law. CHATEL MORTGAGES **SS 11**.

**SS 10.** _Assignment of the mortgage,_\*\***20** _See 11 C. L. 020_ _An assignee for value_\*\***31** \*\*takes such interest, as the mortgagee had,**32** \*\*subject to the rules applicable to the assignment of negotiable and non-negotiable instruments.**48** \*\*An agreement to divide the proceeds of a foreclosure sale is not an assignment of the mortgage.**48** **SS 11.** _Payment and discharge,_\*\***50** \*\*See 11 C. L. 820\_ _Payment of the indebtedness_\*\***57** \*\*,**58** \*\*releases the mortgageen. The debt itself may be canceled by an unauthorized sale by the mortgage,**59** \*\*or a disposition of the property by the mortgage otherwise than as provided by statute.**60** \*\*As a general rule, however, an appropriation of the mortgaged property by the mortgage to his own use will discharge the debt only up to the value of such property.**61** \*\*The debt is not necessarily, fully discharged by the receipt of the mortgaged property by the mortgage,**62** \*\*nor, in the absence of statute to such effect, is it discharged by a change in the locality or possession of the mortgaged property.**63** \*\*The rule that the foreclosure of a chattel mortgage will discharge the debt to the extent of the proceeds of the mortgage sale has been held not to apply where such proceeds were paid over io the mortgagor's trustee in bankruptcy.**64** \*\*The taking of a second chattel mortgage to secure the same debt, secured by the first mortgage upon the same property, does not necessarily operate as a satisfaction and release of the first mortgage,**65** \*\*unless such first mortgage be voluntarily destroyed and the second mortgage be accepted as a substitute.**66** \*\*The validity of a release for value will not be affected by a conversion of the property before the execution of such release.**67** \*\*A release of the mortgage is prima facie evidence of payment, but is open to impeachment.**68** **The question of payment is for the jury.**69****

**assignee, would not waive his lien on the property by consenting that lease, which mortgage was given to secure, should be assigned. Stees v. Lind, 106 Minn. 485, 119 NSW 67.**

**80.** \*\*Search Note: See Chattel Mortgages, Cent. Dig. \*\*SS 459-465; Dec. Dig. **SS 203-215; 7 Cyc. 55-61; 5 A. & E. Enc. L. (2ed.) 1018.**

**81.** **Agreement to hold mortgage harmless on appeal band held sufficient consideration for assignment. Powell v. Tinsley \[Mo. App.\] 119 SWV 47.**

**82.** **Assignee may assert estoppel against prior mortgage. Powell v. Tinsley \[Mo. App.\] 119 SWV 47.**

**83.** **Assignee may assert estoppel against prior mortgage. Powell v. Tinsley \[Mo. App.\] 119 SWV 47.**

**84.** **Assignee of mortgage, by taking possession of after-required goods covered by mortgage, held to have acquired a good title to them. Adams v. Young, 200 Mass. 858, 86 NE 942.**

**85.** **Devvey v. Bobbit \[Kan.\] 100 P 77.**

**84, 85.** **Tabor Mfg. Co. v. Lovell, 37 Pa.**

**86.** **Search Note: See Chattel Mortgages,**

**94.** \*\*Cent. Dig. \*\*SS 496-514; Dec. Dig. **SS 235-248; 7 Cyc. 66-76; 5 A. & E. Enc. L. (2ed.) 1019.**

**87, 85.** **Jackson v. Erkina, 131 App. Div.**

**801, 116 NYS 385. Mortgage was discharged by payment of indebtedness covered, irrespective of other existing debts. First Nat. Bank v. Manser \[Me.\] 71 A 134.**

**89.** \*\*Under St. 1898. **SS 2316a, debt is canceled by private sale by mortgage. Minneapolis Marking. Co. v. Hauge, 136 W1s. 350, 117 NSW 811.**

**90.** \*\*The statute (St. 1898, **SS 2316a) provides mortgage from selling property or removing it from county within five days from time when it is actually taken. Minneapolis: Threshold Co. v. Hauge, 136 V49. 850, 117 NSW 811.**

**81.** **Aestability taken" as used in this statute means corporal taking out of control and possession of mortgage. Id.**

**91.** **This is preferable to rule prevailing in some states, that entire debt will be dismissed. Priddy v. Miners' & Merchants'**

**Bank, 132 Mo. App. 279, 111 SWV 865.**

**92.** \**Stalker v. Hayes, 81 Conn. 71* 752 CHATTEL MOTTGAGES $ 12. 13 Cur. Law. Questions of payment and tender generally are treated elsewhere.1 $ 12. _Enforcement, foreclosure, sale._\*\_See 11 C. L. #22--The mortgagee has his option either to collect his debt by an action at law or by a proceeding to foreclose the mortgage.3 By default or a breach of conditions,4 the mortgagor forfeits his conditional title and right of possession,5 and such title 6 and right 7 then vest unconditionally in the mortgage. A junior mortgage, after the conditions of his mortgage have been broken,8 is entitled to possession against all except the senior mortgage.9 If a mortgage cannot secure such possession without a breach of peace, however, he must resort to legal proceedings,10 but where the mortgage is in the form of a trust deed the proper party plaintiff is the trustee.11

Footnote 10: The mortgagee is not always essential to the validity of the mortgage.11 Equity may, upon the usual grounds enjoin 11 or set aside 18 an improper sale. Where a sale has been enjoined, it is proper for the property to be placed in the hands of a receiver pending trial.19 Under the usual terms of a mortgage, sale before default is permissible only in case of disposal or attempted disposal of the property by the mortgagor.\[20\] The proceeds of a foreclosure sale should not be applied to the payment of the debt during the pendency of a replenion action to determine the right of the mortgage to the possession of the property.\[31\]

A mortgage may be foreclosed indirectly by a simple suit and execution.\[22\] While the ordinary court foreclosure proceeding is maintainable only in equity,\[23\] in Missouri, it may be done by an action at law.\[24\] Jurisdiction of foreclosure proceedings does not necessarily depend upon the location of the property.\[23\] The complaint should show jurisdiction and venue,\[25\] and should set forth the mortgage, and show the compliance of the mortgage and the default of the mortgagor.\[27\] It is proper to join as a party defendant one asserting a claim against he property,\[28\] but parties whose rights are not affected need not be joined.\[29\] In a suit in equity to enforce the lien given by a chattel deed of trust, the beneficiary may bring the action in his own name, but should join with him the trustee.\[30\] The legal effect of an afflavit of illegality in a foreclosure proceeding in Georgia is practically the same as that of a counter-afflavit.\[31\] The bond required to be filed with such afflavit is amendable.\[32\] The mortgagor is estopped to deny his ownership of the mortgaged property,\[38\] or to claim it as exempt.\[34\] A certified copy of a chattel mortgage is ordinarily admissible in evidence without proof of the execution of the original, where such execution is not denied as provided by statute,\[35\] or of its loss,\[36\] and the mortgage itself, when duj acknowledged is usually admissible by a

20. Mortgage so construed. Henderson-Liv Co. v. Wilson \[Ala.\] **9 S 45**.

01. Since such property, for which bond has been given, is in custodia legis. Farmers' State Bank v. Stephenson \[Okl.\] **102 P**

102 P\*\*

103 P\*\*

104 P\*\*

105 P\*\*

106 P\*\*

107 P\*\*

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111 P\*\*

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certificate of record without further proof of execution,\[37\] but the certificate of record is not a part of the mortgage within this rule.\[38\] The court is usually given power, in a foreclosure proceeding, to determine all equities between the parties, not affecting the rights of others not parties to the suit,\[29\] including a determination of the amount of the indebtedness,\[40\] the rendition of a deficiency judgment under statutory authority,\[41\] and the allowance of a set-off.\[42\] It may decree a personal judgment against the mortgagor without foreclosure, when the mortgaged property cannot be reached.\[48\] When the mortgaged property has been confused with other property, through the fault of the mortgagor, the decree may be for a sufficient amount of the commingled property to satisfy the debt.\[44\] No personal judgment can be rendered against a third party defendant by reason of his asserting a claim against the property.\[45\] A general creditor cannot object to the enforcement of the chattel mortgage, unless he has laid hold upon the mortgaged property by process\[48\] in compliance with the law.\[47\] Matters peculiar to foreclosure against purchasers are treated in another section.\[48\]

SS 13. _Redemption.\[49\]_ See 11 C. L. 625--After default the mortgagor has only an equity of redemption,\[50\] which can be enlarged into title or right of possession only by payment of the debt,\[51\] and cannot therefore be enlarged by transfer or assignment of the property.\[52\]

SS 14. _Other remedies as between the parties.\[53\]_ See 11 C. L. 625--A mortgagee who interferes with the mortgagor's possession of the mortgaged property, before default, may be held liable for conversion\[54\] in the amount of the damage caused.\[55\]

SS 15. _Remedies as against third persons.\[56\]_ See 11 C. L. 625--A purchaser from the mortgagor with notice of the mortgage has no greater rights than had the mortgages.\[57\]

SS 15. _Remedies as against third persons.\[56\]_ See 11 C. L. 625--A purchaser from the mortgagor with notice of the mortgage has no greater rights than had the mortgages.\[58\]

SS 17. \_Under B. & C. Comp. $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$$$ $$ $$ $$ $$ $$$$ $$ $$ $$ $$ $$$$ $$ $$ $$$$ $$ $$ $$$$ $$ $$$$ $$ $$$$ $$ $$$$ $$$$ $$$$ $$$$ $$$$ $$$$$$ * 13 Cur. Law. CHATTEL MORTGAGES SS 15. 755

- 13 The mortgage, if entitled to possession, is entitled to recover the mortgaged property or its value from such purchaser,\[88\] provided the mortgagor was not authorized by the mortgage to make the sale.\[69\] Such purchaser will not, however, be made to suffer as a consequence of any negligence of the mortgage,\[60\] but the purchaser has the burden of proving such negligence.\[91\] In such proceedings the defendant must show that he was an innocent purchaser\[92\] by his pleadings\[83\] and by the proof introduced.\[64\] Whether he was an innocent and bona fide purchaser is a question for the jury.\[65\] The indebtedness may be proven by parol.\[66\] A third party who wrongfully converts the mortgaged property is liable to the mortgage,\[67\] provided the latter has not abandoned his claim\[68\] in the amount of the mortgage indebtedness,\[69\] not exceeding, however, the value of the property at the time of the conversion, where the defendant acted in good faith.\[70\] On the other hand the mortgage may be held personally liable to third parties for expenses in counction with his possession of the mortgaged property.\[71\] Where the mortgage elects to follow the specific property upon which the lien exists, his security attaches to such property in its entirety.\[72\] In such an action, the mortgage need not prove
- 14 307, 309, 316-329, 336, 340-359, 477; Dec. 65. Hickey v. McDonald Bros, \[A1a.\] 48 Dis. 5173, 174, 177, 178, 292; 7 Cyc. 14-35, 43-46. 57. Ayre v. Hixson \[Or.\] 98 P 515. 58. Vzn Eps v. Newald, 139 Wis. 129, 120 NPV 853. 59. Whether mortgage gave mortgagor unconditional authority to sell mortgaged property held to be question for jury.\[65\], he may, where his claim has been done as to what mortgagor did with proceeds and of fact that mortgage had knowledge thereof and did not repudiate the act held admissible on question of authority. Stevenson v. Whatley \[A1a.\] 50 S 41. 60. As where mortgage by reason of which mortgage seeks to recover was signed by mortgagor in assumed name and so accepted. Bradford v. Lembke \[Tex. Civ. App.\] 118 SV 165. 61. Purchaser required to prove name signed by mortgagor was assumed. Bradford v. Lembke \[Tex. Civ. App.\] 118 SW 159. 62. One is not innocent purchaser in good faith who has actual knowledge of an improperly recorded mortgage. Ayre v. Hixson \[Or.\] 98 P 515. As to what constitutes notices sufficient to rebut claim of party to be innocent purchaser eee Notice and Record of Title, SS 2A, 2B. 63. He must plead that he had not actual or constructive notice and that he was innocent purchaser for value. Ayre v. Hixson \[Or.\] 98 P 515. Administrative of mortgagor did not show by her plea that she was an innocent purchaser. Jones' AdAm'v. Vones' AdAm'v. 83 Ky. L. R. 1056, 112 SW 650. 64. Burden was sustained where evidence that defendant was innocent purchaser was uncontradicted, and plaintiffs mortgage had not been recorded. Fischbach v. Garrison Milling & Elevator Co. \[Co.\] 102 P 895. Defendant must sustain the burden of proving that he was an innocent purchaser. Ayre v. Hixson \[Or.\] 98 P 515. Must prove he had not actual or constructive notice. Id. Evidence held to show that purchaser had sufficient notice to put him on inquiry. Id.
- 14 307, 309, 316-329, 336, 40-559, 477; Dec. 65. Hickey v. McDonald Bros, \[A1a.\] 48 Dis. 1031. 68. Van Eps v. Newald, 139 Wis. 129, 130 NY 853. 67. Swartz v. Gottlieb-Bauren-Schmidt-Straus Brew, Co., 109 M.d. 393, 71 A 854. Where the mortgage had no opportunity to apply for jury and to try right of property, as contemplated by statute (P. L. 1898, p. 624), he may, where his claim has been ignored, rely upon his common-law remedy and recover from an officer who has sold the property. Breit v. Solferino \[N. J. Law\] 72 A 79. Offcer who sold mortgaged property under execution without complying with statute which requires that it be sold subject to mortgage and that purchaser give bond to secure payment of incommensure (Ky. St. 1903, 1709) was liable to mortgage for damages sustained. Davis v. Gott \[Ky.\] 113 SV 826. Officer levying attachment on mortgaged property was held liable. Martin v. Holloway \[Idaho\] 102 P 3. Junier mortgage led liable to senior mortgage for conversion by his transfere under a simulated transfer. Henderson Law Co. v. Hinson \[A1a.\] 47 S the exact amount due upon the mortgage,\[13\] and, as between a first and a second mortgage, the consideration of the latter is immaterial.\[14\] A mortgage may recover from a mere trespasser regardless of failure to file the mortgage as required by law.\[15\] In Ohio the mortgage cannot be maintained against an administrator of the mortgagor.\[16\] In a suit to foreclose a second mortgage, against a purchaser from the first mortgage, the court will not consider whether the second mortgage covers property not covered by the first mortgage, where the first mortgage is attacked as a whole and the defendant asserts no title to property not covered thereby,\[17\] nor will the court, in such a case, determine whether the first mortgage was extinguished by the mortgagor's sale thereunder.\[18\]

**Chattels; Cheats; Checks; Children; Chinese; Cigarettes; Citations, see latest topical index.**

**CITIES:**

_The scope of this topic is noted below.\[80\]_

Cessation of territory works a transfer of the allegiance of residents thereof unless treaty provisions to prevent such result are availed of.\[81\] There are, under our form of government, two classes of citizenship, one of the United States and one of the state,\[82\] and, while they usually coexist,\[63\] one class may exist in a person without the other.\[84\] A man is a citizen of the country to which his father owes allegiance.\[85\] An Indian who has received an allotment and patent for land thereby becomes a citizen of the United States and of the state wherein he resides.\[86\] A federal corporation is not considered as a citizen of any state.\[87\] Citizenship may be proven by evidence of the exercise of the rights and duties of citizenship and by evidence of a judgment of naturalization.\[88\]

**CIVIL APREST.**

_The scope of this topic is noted below.\[89\]_

**SS 1. Validity of Provision for Arrest and**

**Fruitlege Therefrom, 756.**

**SS 2. Arrest on Mesne Process, 757.**

**SS 3. Execution Against the Body, 758.**

**SS 4. Supersedes Bill or Discharge from Ar-**

**SS 1. Validity of provision for arrest and privilege therefrom.\[80\]**--Imprisonment for debt is prohibited by the constitutions of many states.\[91\] Debt, in this portion because another has knowingly (see Aliens\*), domicile (see Domicile\*), and -changed its form or added to its value. American Nat. Bank v. First Nat. Bank (Tex. Civ. App.) 114 SW 176.\*\*

**SS 2. In absence of evidence to contrary, it will be presumed that the whole debt which mortgage was given to secure is due. Honston v. Davis \[Ala.\] 49 S S69. It is sufficient if anything appear to be due. Id. 74. Weber Implement Co. v. Dunard \[Mo. App.) 120 SV 608.**

**SS 3. James Muste Co. v. Hankwitz, 137.**

**SS 30. 118 NW 806.**

**SS 76. Mortgage is confined to his remedy against fund arising from sale of mortgaged property by administrator. Lighter v. Vesco, 79 Ohio St. 225, 86 NE 1004.**

**SS 77. Nicelov v. Treasure, 115 NY 130.**

**SS 78. Since, it was not extinguished, the party claiming under the second mortgage would still hold subject to the first mortgage. Nicelov v. Treasure, 115 NYS 1030.**

**SS 79. See 11 C. L. 627.**

**SS 80. It exelades alienge and naturalization**

**SS 81.**

**SS 82. As in the case of resident of District of Columbia. Gardina v. Jefferson County Regisuras \[Ala.\] 48 S 758.**

**SS 83. One who came to America at age of five and has not been naturalized could not be prevented from voting in absence of showing that his father had not become a. citizen during son's minority. Savage v. Umphries \[Tex. Civ. App.) 118 SW 893.**

**SS 84. Under Act of Congress, Feb. 8. 1887.**

**SS 86. State v. Morrin, 136 Vis. 552. 117 NWW 1006.**

**SS 87. Choctaw, O. & G. R. Co. v. Hendricks (QkI) 95 P 970.**

**SS 88. People v. Quijada, 154 Cal. 243, 97 P 689.**

\*\*SS 89. It excludes an admission to ball (see connection, includes an order for the payment of alimony,92 but does not include torts.93 Nor do such prohibitions forbid the punishment of a debtor for his fraud.94

Footnote 9: "Always begin with the latest article on the subject.

formity to statutory requirements." It must be considered by a judicial officer." A court having jurisdiction of the subject-matter is authorized to decide upon its sufficiency." Under some statutes an order of arrest may issue upon the allegations of the complaint." A party who wishes to proceed by arrest must allege a case, which from its substance," is sufficient to entitle him to arrest."

\_Writ and proceedings thereon.\_See 11 C. L. 628--A writ is not necessarily invalid because it is dated before it can become effective," or issued without the affidavit having been filed with the clerk." It is not effective as an order of arrest until the statutory endorsements have been made 15 and it has been delivered to an officer with a bona fide intention of having it served." It should ordinarily show that the required undertaking has been given." More clerical errors therein will be disregarded." An order of arrest cannot be executed in any other jurisdiction than that in which it is lawfully issued." It stands until revoked."

SS 3. \_Execution against the body.\_21 Occasion and propriety.\_See 11 C. L. 628 The right to enforce an execution against the person of the judgment debtor depends upon local statutes," which, in some cases, specially favor women." The plaintiff's right to a body execution is to be determined by the allegations of his complaint." If a sufficient affidavit shall have been filed," no allegation for arrest and bail need be contained in the complaint to warrant the issuance of a body

-recover certain sum exceeding $100, as required when suit is begun under provisions of $996. Beniev, M handheld, 154 Mich. 591, order and same was approved as to form and 15 Det. Leg. N. 833, 118 NWP 869.

7. Affidavit that defendant secured property by false representations was sufficient 1028.

under Code Civ. Proc. $ 549. Alussiller v. 18. Allegation that plaintiff, instead of plaintiff's assignor, was deceived, held to be mere clerical error. Mussiller v. Rice, 116 Pequle v. Gebhardt, 154 Mich. 504, 15 Det. Leg. N. 818, 118 NWP 16.

8. Justice of the peace heflq to have jurisdiction. Feld v. Loffis, 240 Ill. 105, SS 8 NE 281.

1. Issuance on complaint is authorized by Code Civ. Proc. $ 484, subd. g. Taylor v. \[Vyv.\] 102 P 659.

Klein, 120 App. Div. 615, 115 NYS 445.

11. Test must be nature of action as determined from substance. Calbeck v. Si- 1207-1381; Dec. Dig. SS 421-453; 17 Cyc. mantion \[Vt.\] 171 A 881. Right to arrest is not given by mere form or classification. Id. & E. Enc. L. (2ed.) 48; 8 A.

01. Calbeck v. Simanton \[Vt.\] 71 A 881.

01. In New York the right of defendant to arrest plaintiff upon body execution depends solely upon right of plaintiff to have defendant arrest head judgment been against him, under Civ. Code Proc. $ 1487. Allen v. From- 195 N. Y. 404, 88 NE 645. Right exists in two classes of cases: (1) Where plaintiff's right to arrest defendant depends upon nature of action; and (2) in any other case where order of arrest has been granted and executed in action, and if executed against judgment debtor, where it has not been vacated (Code Civ. Proc. $ 1487). Id.

01. Allen v. Fromme, 195 N. Y. 404, 88 NE 645. A woman cannot be arrested except in case where order can be granted only by court, or where it appears that action is to recover damages for willful Injury to person. character. or property (Code Civ. Proc. $ 553). Id. Action of woman in holding property under claim of inferior warehouseman then was not willful injury to property with- in meaning of preceding note. Id. Under Code Civ. Proc. $ 549. Fenton v. 14. People v. Gebhardt, 131 App. Div. 291, 115 NYS 685 Det. Leg. N. 818, 118 NWP 16.

execution."Such execution may, however, be issued upon a complaint which contains the necessary allegations, although there has been no order of arrest.27 An execution against the person cannot usually be issued in a suit wherein one of the causes of action upon which it is based 28 is purely equitable.29 And, in some jurisdictions, such execution cannot be issued until due notice has been given to the defendant 30 and an execution against his property has been returned unsatisfied.31 Under the New Jersey statute,32 the judge, and not the jury, determines the question of fraud warranting the issuance of such execution, and the debtor has the burden of proving the absence of fraud.32

_The order and writ.See 11 C. L. 628_

_SS 4. Supersedes bail or discharge from arrest.34 See 11 C. L. 628_

\_SS 4 by giving bail does not waive his right to move to vacate the order of arrest.35 Nor can he be required to agree not to bring suit for false imprisonment as a condition precedent to a vacation of such order.36 In some states a debtor is entitled to discharge upon taking the poor debtor's oath 37 after due and sufficient notice thereof has been given,38 or upon his substantial compliance with a statute for the relief of insolvent debtors.39 When the creditor has failed to plead within the statutory time after the debtor has filed his statutory declaration, the debtor is entitled to his discharge as a matter of course.40 A discharge in bankruptcy will not authorize the discharge from civil arrest of a party who has been guilty of wilful and malicious conversion amounting to larency.41 On an application for a discharge from arrest, the court may examine the entire record to determine the character of the wrongful acts.42

\_SS 5. Liability for wrongful arrest or false imprisonment See 11 C. L. 629 is elsewhere treated.43

_SS 6. Liability on bonds or undertakings given to secure arrest.45 See 11 C. L. 629_

**Civil Damage Acts; Civil Death, see latest topical index.**

an essential allegation which was struck

Out of complaint. Lyon v. Bertolero \[S. D.\] 1361: Dec. Dig. # 443-455; 3 Cyc. 958, 959, 120 NW 766.\*\*

26. Under Code Civ. Proc. $ 333. Lyon v.

NS. Markes v. Gotechnius, 60 Misc. 143, 113 Bertolero \[S. D.\] 120 NW 766. In this respect these proceedings are very analogous to attachment proceedings. Id.

27. Under Code Civ. Proc. $ 333. Lyon v.

Bertolero \[S. D.\] 120 NW 766.\*\*

28. Not issue where one of several causes is purely equitable. Fenton v. Duckworth, 131 App. Div. 291, 115 NYS 686.\*\*

01. Not issued in equity except where common-law action is brought on equity side for special reasons giving equity jurisdiction.

"Fenton v. Duckworth, 131 App. Div. 291, 115 NYS 686.\*\*

**SS 6. Not for accounting held to be in equity and such execution not issuable. Id.**

**30. Notice was sufficient when complaint contained one or more of causes relied on for arrest, when defendant had notice of trial and relief asked for, and opportunity at trial to rebut allegations of fraud and embexizement. Martin v. Hutto \[S. C.\] 64 SE 421.**

**31. Under Code Civ. Proc. 1902, $ 307. Martin v. Hutto \[S. C.\] 64 SE 421.**

**32. Pen. Lawg, p. 581. Austrian v. Laubheim \[N. J. Law\] 73 A 226.**

**33. Austrian v. Laubheim \[N. J. Law\] 73 A 226.**

**34. Search Note: See note in 19 L. R. A. 560.**

See, also, Arrest, Cent. Dig. $ 95-126; Dec.

CIVIL REIGHTS."

_The scope of this topic is noted below._\[47\]

One who, under color of a law regulation or usage of any state or territory, violates the civil rights secured to a citizen of the United States is liable under federal law, to the party injured,\[48\] regardless of the nonexistence of malice.\[49\] The fourteenth and fifteenth amendments to the federal constitution are limitations on the states and do not confer primary rights,\[50\] or give one race any greater rights than another.\[51\] Nor does the fourteenth amendment guarantee to a person a jury composed in part of his own race.\[52\] An infringement of the federal penal statute designed for the protection of civil rights\[53\] does not authorize a civil action for damages.\[54\] In some states, one is liable in damages to the party aggrived for any denial of the equal enjoyment of a place of public accomodations or amusement.\[65\]

CIVIL Service; Clearing House, see latest topical index.

CLERKS OF COUNT.

_The scope of this topic is noted below.\[66\]_

$ 1. The Office; Appointment; General Pow- $ 2. Fees and Compensation, 761.

$ 3. Libilities, 761.

$ 1. _The office; appointment; general powers and duties.\[57\]--See 11 C. L. 028_

One appointed to fill a vacancy is for some purposes regarded as beginning a new term.\[58\] The office is usually regarded as purely ministerial " though certain judicial powers are sometimes conferred.\[60\] Justices of the peace are usually re-

46. See 11 C. L. 629.

$ 56. It includes the election or appointment.

Senech Note: See notes in 14 L. R. A. 579;

$ 18. Id. 639; 28 T. Id. 204; 29 L. R. A. (N. S.) 601;

$ 6. A. S. R. 379; 89 Id. 844; 9 Ann. Cas. 69;

See, also, Civil Rights, Cent. Dig.; Dec.

$ 102. 17 Cyc. 158-178; 6 A. & E. Enc. L. (2ed.)

$ 68; 4 A. & E. Enc. P. & P. 552.

$ 47. Separation of the races in the schools (see Schools and Education, ' S, and in the convexances of common carriers (see Carriers, ' S 27), are treated elsewhere. As to race discrimination in the drawing of parties, see Jury., ' S 5.

$ 48. Under Rev. St. U. S. $ 1979; U. S. Comp. St., 1901, D. 1822, wrongful rejection of vote for member of congres, held actionable.

Brickhouse v. Brooks, 165 F 534. Statute has reference to rights guaranteed by federal constitution and does not include right to life, liberty and property, which are primary rights within protection of state. Brawner v. Irvin, 169 F 564.

$ 49. Need not be alleged. Brickhouse v. Brooks, 165 F 534.

$ 50. Brawner v. Irvin, 169 F 964. Do not give negro right to resort to federal court to secure protection of life, liberty or property. Id.

$ 51. Brawner v. Irvin, 169 F 964; Crosby v. Mayfield \[Ky.\] 117 SW 516.

$ 52. Thomas v. Texas, 212 C. 278, 53 Law.

$ 53. Rev. St. 8510; U. S. Comp. St. 1901, p. 3712. Brawner v. Irvin, 169 F 964.

$ 54. Brawner v. Irvin, 169 F 964.

$ 55. Liable under St. 1898, 6438c. Jones v. Broadway roller Rinkh Co., 186 Wils. 595, 118 NW 170. Roller skating rinkh is place of public amusement. Id.

$ 56. Under statute requiring that question of law and fact raised before clerk of court be doclected for trial before judge, fact that clerk finds he has committed error, and corrects mistake to comply with statute, in term, before case is brought before judge, 18 within his power. Little v. Duncan, 149 N. C. 84, 62 SE 770.

$ 70. Under statute requiring that question of law and fact raised before clerk of court be doclected for trial before judge, fact that clerk finds he has committed error, and corrects mistake to comply with statute, in term, before case is brought before judge, 18 within his power. Little v. Duncan, 149 N. C. 84, 62 SE 770.

quired to act as clerks of their own courts "1" and ordinarily have the same rights and duties of clerks of court generally.62 Many of the duties imposed on clerks for the benefit of litigants do not arise until a proper request formally presenting the matter.63 Duties of clerks of court, the performance of which are ministerial and not discretionary in exercise,64 may be compelled by mandamus. A deputy clerk has the power to perform any official ministerial act of the clerk as his principal,65 in the absence of a statutory provision to the contrary,68 but cannot perform judicial acts without statutory power.67

\*\*SS 2. \_Fees and compensation.68 See 11 C. L. 681--Though it has been said that no fee is provided by statute he can recover none,69 it is generally held that where the compensation of a clerk of court is not fixed by law 70 he may require a reasonable fee 71 in advance 72 and may retain papers and documents upon and about which service have been performed until compensation is paid.73 In some states a clerk of court has no right to collect his fees before the termination of the case in which the services were rendered.74 A salary act taking effect on the expiration of existing terms applies to one appointed to fill a vacancy.75 The compensation of a clerk, whether fees or salary, is usually fixed by statute.76 The compensation of clerks and assistants cannot be extended to expenses not included within the statute fixing the same.77 In the absence of a statute providing otherwise, the clerk of the supreme court is not required to furnish copies of opinions to the agencies of the state without the statutory fee.78

\*\*SS 3. \_Liabilities.70--See 11 C. L. 681--Penal statutes * making clerks of court liable for failure to perform certain duties 61 are in force in some states. An action cannot be maintained against the clerk in his official capacity for money received in such capacity.82 Costs illegally taxed and collected by the clerk should be re-

\*\*61, 62, State v. Cooper \[Tenn.\] 113 SW 1048. 63. An appeal bond not considered as approved by clerk by merely filling same. Kolley v. Dept \[Colo\] 99 F 316. 64. Stutory duty to keep subpoena doeket. Jackson v. Mobbev \[Ala.\] 47 S 550. 65. 66. 67. 68. 69. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 63. 64. 65. 66. 67. 68. 69. 60. 61. 64. 66. 68. 69. 61. 65. 67. 69. 61. 68. 69. 60. 61. 60. 62. 64. 66. 69. 61. 61. 62. 63. 64. 66. 67. 68. 69. 61. 62. 64. 66. 68. 69. 61. 63. 64. 66. 69. 61. 65. 67. 68. 69. 61. 69. 62. 64. 69. 61. 66. 69. 62. 67. 69. 61. 68. 69. 60. 61. 69. 62. 63. 64. 66. 68. 69. 61. 69. 60. 62. 64. 69. 62. 65. 66. 67. 68. 69. 61. 69. 62. 67. 69. 63. 68. 69. 60. 61. 69. 61. 69. 62. 64. 69. 63. 65. 66. 67. 68. 69. 61. 69. 62. 67. 69. 63. 68. 69. 61. 69. 60. 63. 69. 61. 69. 62. 64. 69. 64. 66. 68. 69. 61. 69. 62. 65. 69. 63. 66. 69. 64. 66. 69. 65. 67. 69. 68. 69. 61. 69. 60. 61. 69. 62. 66. 69. 61. 69. 62. 66. 69. 63. 69. 64. 66. 69. 65. 67. 69. 68. 69. 69. 60. 69. 61. 69. 60. 61. 69. 62. 69. 63. 69. 64. 66. 69. 66. 67. 68. 69. 69. 61. 69. 60. 61. 69. 62. 69. 63. 69. 64. 66. 69. 67. 69. 68. 69. 69. 60. 61. 69.

covered by petition in the court having jurisdiction of the original action, and a bill in equity will not lie.83

Footnote 83: This is a part of the state as a public municipal corporation; it was founded by the state and is under state control.84 The state college of Washington is a state institution.87 A university cannot give corporate powers to a board which it has created for the control of a department.88 Private institutions, though incorporated, may select those whom they will receive as students.

- \[13\] Cur. Law. Combinations and Monopoles SS 1. 763

- \[14\] C. L. 632.--Mandamus will not lie to compel a private college, though it be incorporated, to admit students whose right to admission depends upon an implied contract.1 Free tuition is a bar to the requirement of a registration or matriculation fee, but not to the requirement of a laboratory fee.2 A college which accepts and receives valuable rights and property cannot avoid being liable for their purchase price by denying the authority of the officer making the purchase.3 A board of control for a department of a university does not ordinarily have capacity tosue.4 An athletic association which is a mere branch of the college is not subject to suit.5

- \[15\]_Officers and instructors_.See 11 C. L. 632.--The board of trustees in Alabama is a mere agent of the state.5

- \[16\]_Insolvency and dissolution_.See 11 C. L. 633.--The franchise of a college will not usually be forfeited by nonsuer alone.7

- \[17\]\*\*Collision; Color of Title, see latest topical index.**CONBIMATIONS AND MONOPOLES.**_The scope of this topic is noted below.8_

- \[18\]**SS 1. Combinations Violative of the Federal 8 3. Grants of Privileges by Statute, Ordinance, and Contracts with Municipal-Trust Act, 763.**_The franchise of Create Monopoles, Trust Acts and of the Common Law, 770._

- \[19\]\*\*SS 4. Remeelles aud Procedure Under State and Federal Laws, 770.\_

- \[19\]**SS 1. _Combinations violative of the federal anti-trust act_.--See 11 C. L. 633.--The power of congress to legislate on contracts and combinations in restraint of trade is derived from its constitutional power to regulate interstate and foreign commerce,10 and hence the Sherman anti-trust act applies only to contracts or combinations directly and necessarily affecting commerce between the states or with foreign nations.11 If a contract affects only products within the limits of a state, it does not come within the act, though it incidentally affects interstate commerce.12 Nor can a violation of the act be predicated upon acts committed in a foreign jurisdiction,18 especially when such acts are co-operated in by the officials of the foreign state and also sanctioned by such state itself.14 To violate the provision against authorities of university. Miller v. Central University \[Ky.\] 112 SW 669.**_It excludes the rule of public policy invalidating as between the parties contracts in restraint of trade (see Contracts, $ 3K), and against public policy (see Contracts, $ 3D), and the forfeiture of corporate charts._--_If only the parties are or privileges as a penalty for violation of anti-monopoly laws (see Corporations, $ 12; Foreign Corporations, $ 1). Excludes, also, conspiracy generally (see Conspiracy), and trade unions (see Trade Unions, $ 1, 2)._--_In Search Note: See notes in 5 C. L. 707._--_In Search Note: See notes in 5 C. L. 707._--_In 6.31 1d. 634._--_In 8.3 894._--_In 1d. 268._--\_In 1d. 150, 600; 2 Ann. Cas. 956; 7 I. 63; 9 I. 299, 677.**_See, also, Monopoles, Cemb. Dig. $ 7-18; Dec. Dig. $ 8-28; 27 Cyc. 898, 901-908, 910; 20 A. & E. Enea. (2ed.) 844._--_In 6.64._--\_In 10.11. Bigelow, V. Calumet & Hecla Min. Co. (C. C. A.) 167 F 721, Saf. 167 F 704.**_In_Pennsylvan Sugar Refining Co. v. American Sugar Refining Co. (C. C. A.) 167 F 254. Otherwise if it attempt to control disposition of manufactured product across state lines. Id. Hecla IIegal where intended to stop plaintiff's business which consisted of buying and selling sugar in different states. Id._--_In 13, 14. American Banana Co. v. United Fruit Co., 213 U. S. 347, 53 Law. Ed. --_.

monopolies, the combination must directly, necessarily, and substantially tend toward monopoly.\[15\] A combination does not violate the act merely because it incidentally or remotely restrains trade or tends towards monopoly.\[16\]

Any contract or combination directly or necessarily operating in restraint of interstate or international commerce is violative of the Sherman act.\[17\] The restraint need not be so complete as to entirely destroy competition,\[18\] and whether reasonable or unreasonable is immaterial.\[19\] The intention of the parties is material or not accordingly as the necessary effect of the agreement or acts to be done is or is not to directly restrain the trade or create a monopoly.\[20\] A mere combination to manufacture an article is not within 'ine act,\[21\] nor does the act necessarily prohibit one corporation from securing control of another corporation by purchase

15. Bigelow v. Calumet & Hecla Min. Co., was an unlawful combination in restraint of 167 F 704; Wheeler-Stenzel Co. v. American trade and which sold first named corporation Window Glass Co., 202 Mass., 471, 89 NE 28. most goods, held not to render it unlawful 16. Chief purpose being to promote business of the parties. Bigelow v. Calumet & Hecla Min. Co., 167 F 704. goods of other manufacturers. Id. No issue

01. United States v. American Tobacco Co., is presented under Sherman Act by complaint in respect to trading which bases $ 1, combinations in restraint of trade, and $ 2, combinations or conspiracies to monopolize or attempt to monopolize trade or commerce. Monarch Tobacco Works v. they each other of customers who did not pay their bills, leaving each free to sell such customers goods or not. Tubular Rivet & Stud action which ostensibly obstructs the free flow of commerce between the states or obstructs in that regard the liberty of a trader to engage in business. Id.

Act held violated: By consolidation of tobacco corporations giving consolidated company control of 75 per cent of tobacco business. United States v. American Tobacco Co., 164 F 700. By agreement between manufacturers of licorice paste that there should be no competition in price between them, pro-viding for arbitrary noncompetitive prices, and apportioning and limiting amount of business to be done by competing companies.

Contracts severally entered into by them backoc corporations giving consolidated com-pany control of 75 per cent of tobacco business. United States v. American Tobacco Co., 164 F 700. By agreement between manufacturers of licorice paste that there should be no competition in price between them, pro-viding for arbitrary noncompetitive prices, and apportioning and limiting amount of business to be done by competing companies.

United States Tobacco Co. V. American Tobacco Co., 165 F 701. By system of contracts for sale of goods by member of a trust, requiring buyer before being secret formula whether regarded as con-entity to certain premiums to buy only tracts of sale or agency. Dr. Miles Medical Co. v. Park & Sons Co. \[C. C. A.\] 164 F 803. By combination of shipowners to prevent oral act. Moroney Hardware Co. v. Goodwin rates by establishing uniform competition in South African trade. Thomson v. Union Castle Mail S. S. Co. \[C. C. A.\] 166 F 251. By conspiracy to prevent plaintiff from engaging in the sugar business in competition with defendant, by securing voting power of plaintiff's malaprity stockholder through pledge of his stock for a loan and voting to exclude plaintiff from business. Penn-glyvanist Sugar R. Co. v. American Sugar R. Co., 165 F 254. Petition in action for treble damages held to state cause of action by showing violation of both sections, one and two of Sherman act, by conspiracy to injure plaintiff's domestic and foreign tobacco trade through combination and monopoly. People's Tobacco Co. v. American Tobacco Co. \[C. C. A.\] 170 F 396.

Act held not violated: By operating 400 retail cigar stores out of 600,000 places where tobacco is sold. United States v. American Tobacco Co., 164 F 700. That majority of stock of corporation selling tobacco was owned by another corporation, which of the latter's stocks and properties.\[22\] A series of separate acts in fact stifling competition is unlawful though each act considered by itself is innocent.\[29\] That a combination is formed in a foreign country does not exempt it from the statute where it is put in operation in the United States and affects her commerce.\[24\]

_Patented articles.\[58, 11 C. L. 685\]_--Patented articles unless and until released by the owner of the patent from the dominion of his monopoly are not articles of trade or interstate commerce within the meaning of the Sherman Act;\[25\] hence a patentee may require licensees to join other licensees in a combination or pool to control the output or prices of an innocuous article.\[28\]

## 2. _Combinations violative' of state anti-trust acts and of the common law.\[27\]_

See 11 C. L. 685\] The essence of a monopoly is the concentration of business in the hands of a few.\[28\] In order that a monopoly may exist at common law, there must be property affected with a public interest,\[29\] and hence in the absence of statute an occupation cannot be the subject of monopoly,\[30\] and a statute prohibiting trusts will not be held to apply to combinations to fix wages for laborers unless it appears clearly that such was the legislative intent.\[31\]

## 22. Securing control of competing mining

combination or contract tendency of which corporation held not necessarily illegal though intention was to place both corporations under general control. Bigelow v. Calintour & Hecela Min. Co. \[C. C. A.\] 167 F 721,

Railroad merger held within statute though afg. 167 F 704. Transaction not illegal where primary purpose was to secure more economic operation of mines especially where controlled corporation was one of a group previously under common management, Id. 23. Monarch Tobacco Works v. American Tobacco Co., 165 F 774.

The following process is described in detail in the following section.

1. \[label=0., ref=0\]
1. 3. 4. 5. 6. 7. 7. 8. 9. 10.
