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 LAW LIBRARY. 
 
 Cornell University Library 
 KF 240.H89D3 
 
 3 1924 024 514 196 
 
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 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024514196 
 
DATUM POSTS 
 
 OF 
 
 JURISPRUDENCE 
 
 BY 
 
 WILLIAM T.^JHUGHES 
 
 AUTHOR OF "CONTRACTS" AND OP "PROCEDURE' 
 
 Melius petere f antes quam sectart rtvulos. 
 
 Bcgula pro lege, si deficit lex. 
 
 ' The Roman still holds dominion over this world by the 
 silent empire of his law." 
 
 CHICAGO: 
 Published by The Usonia Publishing Co. 
 
 1907 
 
Copyright, 1907 
 
 BY 
 
 WILLIAM T. HUGHES 
 
PREFACE 
 
 A Datum Post is a point from which a reckoning is made. 
 Every great structure is drawn from a Datum Post. Surveyors 
 and engineers in building railroads, bridges, dams and canals, 
 make their estimates from Datum Posts and Datum Lines. 
 Every exact science has these fundamental positions, upon 
 which the learned in the profession agree, and upon which their 
 hypotheses are based. Has the law such Datum Posts, and if 
 it has, what are they? Put this question to a number of lawyers 
 and see how diverse the answers will be. Few indeed will name 
 a dozen of the great maxims or of the leading cases, around 
 which the law has grown. Inquire what maxim was affirmed 
 in the "Squib Case," and what in Dovaston : 217. Ask which 
 maxim governs in the construction of our written constitution, 
 whether there is an unwritten constitution expressed in the 
 maxims and what those maxims are. Law students are general- 
 ly not trained to answer these questions, and they are conse- 
 quently not familiar with the "Datum Posts" of the law. It 
 is the object of this book to place these Datum Posts, in the 
 shape of maxims and cases illustrating them, before the reader. 
 The maxims on pp. 11-14 are offered as Datum Posts, and the 
 discussions in Cases 1-100 are to disclose a datum line which is 
 called the mandatory record. The practitioner without technical 
 knowledge of that record is incapable of clearly presenting and 
 conducting a cause. 
 
 To illustrate: It is observed that geographers have so writ- 
 ten that all may learn the great divisions of the earth and its 
 great circles, and prominences which are the geographer's 
 Datum Posts. It is easy to learn that mounts Everest, Blanc, 
 and Chimborazo are the most notable elevations. Now why 
 can not the great basic principles of jurisprudence be gathered 
 and so set that all can find and learn them? Ulpian, Bacon and 
 Hamilton said they could be. Were these matchless intellects 
 mistaken, is a question this work submits. 
 
 iii 
 
iv PKEFACE. 
 
 From mountains, rivers start and are fed as they flow down- 
 ward. Maxims and their applications are the mountains and 
 rivers of the law. Regula pro lege, si deficit lex (where the 
 law is deficient the maxim rules) is a Datum Post in dealing 
 with the history and the philosophy of the law. 
 
 The Ehine from its glacial swaddlings on the highest Alps 
 courses on down receiving its 12,000 tributaries, until all are 
 lost in the marshy grave the river has made for itself from 
 Denmark to Belgium, and in the mud banks of Holland 
 or the sands of the Zuyder Zee. The Ehine has its head 
 in the sky and its feet in its briny marsh. As it is with the 
 Ehine, so it is with fundamental principles of the law in the 
 American states; they are found in the maxims, the highest 
 source of the law, but are unfortunately lost to view in the 
 morass of conflicting decisions. Consequently appears the wis- 
 dom of the maxim Melius est petere fontes quam sectari rivu- 
 los (it is better to seek the fountains than to wander down the 
 rivulets). 
 
 To promote the interests of students everywhere, the fol- 
 lowing pages are submitted to affirm the proposition that the 
 law has its landmarks, or beacon lights. Whoever is interested 
 in the last proposition may well consider what is presented in 
 relation to maxims, and the prescriptive constitution; relating 
 to these, what is said has been in view of the fact that the Ameri- 
 can states and courts are most provincial, if not tribal, and 
 in some tribes heterogeneous. Even the optimist must admit 
 that the condition in New York, Indiana, Illinois, Missouri, and 
 Colorado is incompatible with the stability and usefulness of 
 the law; in these states no human sagacity can know the law 
 and make juridical statements so as to meet the uniform ac- 
 ceptance and approval of state power. He who will deny this 
 can not be familiar with the incompatible decisions in these 
 states. (See Windsor: 1 and following cases.) 
 
 Eelating to the mandatory record the decisions of several 
 states are like an alternating electric fan. Macbeth 's despair- 
 ing apostrophe to the equivocal performances of the tantalizing 
 witches might appropriately be quoted by those who perceive 
 conspicuous antinomies; the clear acceptance on the one hand, 
 
PREFACE. v 
 
 and the rejection on the other, of principles vital to government 
 may well be likened to the fan. 
 
 And if he who has studied federal procedure insists that the 
 subject is beyond human capacity, and is as uncertain as are 
 the views of the courts of the chaotic states, it must be confessed 
 that he can point to many irrefragable muniments of evidence 
 to prove his proposition. Such a condition casts upon our juris- 
 prudence a shadow, not dubious merely, but ominous. In rela- 
 tion to such cases as Windsor: 1, J 'Anson: 91, and Dovaston: 
 217, Murray: 219, will be found observations upon the conceived 
 causes of the threatening clouds which hang over our boasted 
 American civilization. Indeed, if it be true that history repeats 
 itself, may it not be that these causes are leading us on to a 
 deluge? 
 
 The corruption and the failure of jurisprudence is a first 
 and near step to a national cataclysm. We beg to quote : 
 
 "There is the moral of all human tales; 
 "lis but the same rehearsal of the past, 
 First Freedom, and then Glory — when that fails, 
 Wealth, vice, corruption — barbarism at laslj. 
 And History, with all her volumes vast, 
 Hath but one page." 
 
 The condition in several states offers pointed and abundant 
 illustrations. However, here, mention of two will suffice; 
 these will suggest to the student that he may be between Scylla 
 and Charybdis. For if venerable and erudite judges cannot de- 
 termine whether or not courts of sister states understand and 
 apply fundamental principles, then how can the student? The 
 late case: Atlantic R. R. v. Benedict Co., — Fla. — , 42 So. 
 529, 532, 533, shows that a truly learned judge correctly under- 
 stood and applied Verba fortius accipiuntur contra proferen- 
 tem (every presumption is to be made against a pleader), this. 
 Mount' Everest of jurisprudence. But from a thousand volumes 
 from New York the court was unable to satisfactorily deter- 
 mine whether or not that Datum Post was respected therein; 
 Now who can clearly show that it is? Where is that fortunate 
 student? And from Missouri is one of the late cases which 
 reaffirmed the maxim from antiquity, in a truly notable decision 
 holding that the statutory record can not be used for the manda- 
 tory record, the Datum Line already referred to. Every stu- 
 
Vi PREFACE. 
 
 dent should read Pennowfeshi, — Mo. — , 103 S. W. 542-543, 
 and pause to inquire how it is that floods of literature and 
 great schools have tolerated the dreadful if not alarming condi- 
 tions reflected from the Florida and the Missouri cases, and in 
 all of those jurisdictions where the "theory of the case" im- 
 molates the mandatory essentials of a constitutionalism. Let 
 him look from the statement we make on page eleven and there- 
 from judge whether the philosophy of the law is at present 
 properly written and impressed. If graduates have been given 
 a view from molehills instead of Alpine mountains, then they 
 may have reason to conclude that they have asked for bread 
 and have not only been given a stone, but sufficient stones for 
 awaiting monuments. 
 
 To enable students to perceive the causes of the bewilder- 
 ment apparent from the official reports of supreme courts is 
 a full justification for asking a book-ridden profession to fairly 
 consider one more, and that the smallest possible. 
 
 These pages are also offered to demonstrate that the law can 
 be written upon a condensed-intensive plan, integrating both the 
 old and the current law, and at the same time evolving a key 
 to the library. Finding the law being its larger part, the means 
 of accomplishing that desideratum are not overlooked but are 
 constantly kept in view. 
 
 These pages present considerable matter found in the auth- 
 or's works on Contract and on Procedure. Indeed it may be 
 said that they are a revision of matter and of plan therein. 
 As an auxiliary thereto these pages will be found light, 
 portable and convenient, and will, at the same time, be 
 found practically complete in themselves. In the many- 
 shelved library, laden with unwieldy digests, the ever- 
 lengthening lines of cyclopedias, the ceaseless inpour of an- 
 notated cases and the numberless gatherings of matter offered 
 to beginners, this little work is designed to fill a distinctive niche. 
 It is offered as a highly-condensed companion piece, as a guide 
 and a complement to all well prepared works that relate to or 
 discuss the old and world-wide law. The effort has been to 
 make it as small and compact as is possible consistently with 
 giving necessary views, and submitting leading questions. And 
 it seems due to inform the reader that there is being prepared for 
 
PREFACE. vii 
 
 the press a work of the most comprehensive and fundamental 
 character to be entitled "The Grounds and Eudiments of Law," 
 which will embrace a text-index upon the plan of the author's 
 other works referred to, and in which some of the matter in this 
 volume will be included. This part of the larger works is offered 
 as an introduction to the whole series, it being the belief of the 
 author that the law is an entirety and that it can be articulated 
 upon the plan to be unfolded. 
 
 The demonstration is burdened with an effort to introduce 
 and impress matters of great and leading importance, or in other 
 words, the Datum Posts. 
 
 Beginning with Windsor: 1, several important matters are 
 considered. As to the full significance of that case, and all that 
 it teaches, both it and the following cases should be well con- 
 sidered. They reveal the springs of government. From them 
 will appear the relations of Procedure to government, and that 
 Procedure lies at the base of government, of contract, of tort 
 and of crime. Here is a needed lesson as to the supposed dis- 
 tinctions between adjective and substantive law. (See Preface 
 Hughes' Procedure.) With that case is introduced the manda- 
 tory record (see Pennowfeski, supra) its functions and 
 purposes, and from the viewpoint opened up, this record 
 is discussed as a focus from which issue and radiate num- 
 berless rules, relating to all subjects of the law. To 
 support the foregoing conclusions, attention is called to the 
 facts presented in the first twenty-four cases. After these, to 
 Dickson: 34, are cases presenting important rules relating to 
 res adjudicata and its cognate subjects; here and early, the 
 estoppels are introduced, and their position, as parents of many 
 rules of "substantive" law, explained. From Dickson: 34, to 
 Bailey: 44, the allegation, the admission, the denial and the is- 
 sue have complete attention. Next is Iverslie: 46, and other 
 cases impressing the rules relating to oral and the best evidence. 
 Following these is a gathering of cases presenting the prom- 
 inent rules of procedure, equity, construction, evidence, tort, 
 crime and contract ; as to the latter, see cases 300-417. Within 
 the gathering, are presented more than 500 leading cases, under 
 which are cited numerous cognate cases, all of which are not 
 only burdened with the six leading subjects mentioned, but the 
 
viii PKEFACE. 
 
 entire body of the law as well; from these cases the law can 
 be articulated. At a glance, the reader can see how the principal 
 maxims are presented and illustrated in their application. More 
 than one hundred maxims are so illustrated. The work is im- 
 pregnated with the view that there is an unwritten or prescrip- 
 tive constitution, which consists of the fundamental maxims of 
 government, which limit or expand the words in written con- 
 stitutions. The canons of construction are a part of every 
 branch, and its prolific outgrowths, of every collocation of words 
 in all compacts and documents ; these canons are Datum Posts. 
 
 Trist: 214, and the cases following will indicate the influence 
 of the prescriptive constitution. Inseparably connected there- 
 with are the fourteen conserving principles, enumerated and de- 
 fined at pp. 7-14 Hughes' Procedure. Constant reference will 
 be made to these, as Datum Posts from which issue and radiate 
 numberless rules, and hundreds of these av$ traceable as inter- 
 actions throughout all subjects of the law (64 Cent. Law Jour. 
 129-134, 169-174). These conserving principles are so important 
 that they should be introduced in a generalized way at the 
 start, therefore they are epitomized here as follows: Bequire- 
 ments of appellate procedure will be illustrated in cases like 
 Campbell: 2; collateral attack, by Windsor and Campbell, 
 and following cases; res adjudicata is introduced in cases 
 25-30; Due Process of Law, Murray: 219-232; requirements for 
 the division of state power, 142-146 ; for the removal of causes, 
 Freeman: 287; Furman: 147a; requirements for the comity of 
 courts: requirements for justification defenses, J' Anson: 91; 
 for the election of remedies, Smith: 156; for public policy, 
 Cromwell: 26; Munday: 79; constructive notice, Windsor: 1; 
 for fixed rules of construction, Dovaston: 217; the policy of 
 waiver : 290-299 ; the requirement for the best evidence : 46-58. 
 
 The work is developed upon the theory that these principles 
 are the backbone of the law, and that every philosophic treat- 
 ment of evidence, pleading and practice must be written from 
 and around these leading subjects as Datum Posts. 
 
 The support of the conserving principles will be shown to 
 be the mandatory record already referred to, which will be 
 completely defined and elucidated as a constitutional implica- 
 tion (Windsor: 1; J' Anson: 91, Hughes' Proc. §§ 7-12}. Other 
 
PREFACE. ix 
 
 important questions, as the reader will readily discover, are 
 introduced and discussed. 
 
 Finally, it is observed, that it is the matter of the Eoman 
 and of his successor, the Norman, that is sought to be gathered 
 and presented upon a new alignment. The Roman and the Nor- 
 man are the races that conceived and developed cosmopolitan, 
 law. The matter they left is easily shown to be the immutable 
 constitution. The principles of the prescriptive constitution per- 
 vade all subjects. These principles are neither ancient, medieval 
 nor modern : they are eternal and they are necessities for every 
 government of limited and defined powers. Such governments 
 were framed by constructive statesmen who knew and respected 
 fundamental principles and reckoned from these principles as 
 Datum Posts. Only intellects that understand the beacon lights 
 of jurisprudence can upbuild a commonwealth. Here is in mind 
 the lines of Sir William Jones, "What Constitutes a State."' 
 (See Lange: 159.) 
 
 Antiquity did nothing t in vain. And its greatest gift to pos- 
 terity is the Datum Posts of Jurisprudence. Prom these the 
 simplicity, the morality, the intensive usefulness, the history 
 and the philosophy of the law must be demonstrated. 
 
 The maxims are old and well worn but then they have worn 
 best. There is no branch of the law that is not traceable from 
 the maxim acorns, roots or heartwood. It was from these rudi- 
 ments that Paul spoke before Festus and Agrippa. And who 
 has been more powerful or more eloquent? 
 
 The Roman understood and reasoned from these Datum 
 Posts and who have built better? His laws did more for the 
 undying glory of Rome than did her armies and navies. 
 
 "Peace hath her victories, not less renowned than war," 
 Where the outlook knows and follows a fixed star 
 That leads, a kindly light, from chaos shoals, afar. 
 
 Statesmen and jurists have always defended and vindicated 
 the fundamental maxims as the greatest asset of government, 
 and in defense of them have continually repeated the injunction, 
 "Remove not the ancient landmarks which thy fathers have 
 
 set. ' ' 
 
 W. T. Hughes. 
 
FOREWORD: HOW TO USE THIS BOOK 
 
 The organization and plan of this work is novel, and necessarily so, for 
 the condensed-intensive performance. It is singularly a Datum Post monitor 
 and enumerator. Why it is so, will appear from the citation matter 
 following the title of each case. Finding the law being its larger 
 part, the first demonstration is the finding. To find Windsor: 1, the search is 
 ended from a glance at that case; likewise Lampleigh: 301, and following 
 cases. The first step is to find the law. If it can be found generally it can 
 be learned. From index topic heads, the case or maxim is found; with these 
 impressed, generally the task of mastering a rule is more than half done. 
 To illustrate: Take the case last cited, Lampleigh: 301, and refer to it See 
 the various works on Contract as is pointed out under that case on p. 157, 
 and note what a key to the library is revealed. Thus will appear the value 
 of a well prepared table of cases, wherein the old and the notable case is 
 cited. To impress fully the foregoing, look also at Cutter: 308, and the 
 following cases, Frost, Hochster, Wood, Hallett, Robinson, Taylor, Cumber, 
 Rann. In connection with these cases will be cited thirty authors on Con- 
 tract who have cited and written from and around those Datum Posts; and 
 this work gathers and cites those cases as beacon lights, or landmark cases, 
 which they truly and singularly are; for they are the most notable and 
 world-wide in reference to the rules they annunciate. Generally these are 
 the epitomized statements of the case, e. g., on p. 157, after the words "Lam- 
 pleigh stated," is found an illustration of the rule stated, as will be found in 
 that case. 
 
 The beginner will do well to read the statements of the cases for a 
 first reading of the work, and afterward read the observations that fol- 
 low those statements. He can readily learn what the citation means from 
 any lawyer who uses tables of cases. Most of the maxims cited will be found 
 on pages 11-14. Particular attention is due what is observed of them in the 
 Preface and throughout the work. By observing the foregoing directions the 
 novice will find a ready and sure introduction to the cases and maxims re- 
 lating to Contract, and at the same time perceive the facility of finding them. 
 (Thus is afforded a key to the library. See Preface.) The cases are num- 
 bered as if sections; the index refers to these sections unless pages are 
 expressly mentioned. 
 
 Students impressed with the notion that it is best to learn local and 
 provincial cases nevertheless will be greatly advanced by an introduction 
 to that matter to which cosmopolitan law is moored. In many cases the 
 lawyer appears in the federal courts, also is sought or is sent beyond the 
 precincts where provincial law is written or discussed for local use. The 
 cases of every court can be easily tested by those cases that are in almost 
 universal use and which are familiar to all broadly educated jurisprudents. 
 For these a condensed and ready-reference gathering of fundamental principles 
 ■expressed in the maxim and case nomenclature of all high courts in all coun- 
 tries will prove a valuable epitome. 
 
 xi 
 
xii FOKEWOED. 
 
 The maxim arrangement and treatment are believed to be unique. Every 
 maxim cited is translated either in the index where all are made index topia 
 heads or elsewhere as may be referred to; and it should be observed that 
 wherever these are followed by a single star, maxims so designated will also 
 be found at pages 11-14 of the work and there translated. Forty-two maxims 
 in the index are followed by two stars; these are so marked to indicate that 
 these are the subjects of chapter discussions in the author's Procedure. To 
 illustrate: Audi Alteram Pabtem will be found in its alphabetical place in the 
 index; followed by two stars it will likewise be found in the table of maxims 
 on page 11 and there translated; it is also found in the Procedure, Chapter I., 
 §§ 51-77. Following this maxim in the table on page 11 are references to 
 Windsor: 1; following this maxim in the index are found the following: 
 Pp. 2, 4, 7, 10, 11; §§1, 58, 59, 65, 66-72, 79, 93, 122, 127, 183, 219, 222, 225, 264- 
 268, 278, 279. 
 
 The cases being numbered as sections and standing as such, they are for 
 convenience indexed as sections. By turning to these cases or sections last 
 above mentioned, there will be found the elucidation of Audi, etc., afforded 
 herein. If more is sought then the Procedure may be consulted; it is offered 
 as a surpassingly complete maxim work. 
 
 The maxim content of this work is a leading and a large feature, which, 
 will only be fully perceived from following through the work some of the prin- 
 cipal maxims, as above illustrated. 
 
 It was not deemed best to attempt to tabulate all the cases cited. How- 
 ever, the leading cases will be found in their alphabetical places followed 
 by their respective numbers. This will enable the reader to turn to them 
 with ease and facility, e. g., if Lamnleigh v. Brathwait is desired, it will be 
 found under the title L., standing thus, Lampleigh: 301; it will also be found, 
 in the table of Leading Cases, pp. 1-11. 
 
 Note: The performance has necessitated the most condensed plan of cita- 
 tion. As far as practical, the abbreviations in Bouvier's Dictionary and the 
 Lawyer's Reference Manual have been employed. For necessary brevity and 
 condensity: C. stands for Commonwealth; P. for People; g.v. for quod vide 
 (which see); R. for Regina (Queen) or Rex (King); R. R. for Railroad 
 Company; S. P. for same point; U. S. for United States. Generally the first 
 name of the title of a case is given; if this is classed and numbered with the 
 leading cases, it can readily be found, thus: Windsor: 1 which is read Wind- 
 sor v. McVeigh, Leading Cas., No. 1. Other cases are so referred to in the pref- 
 ace. By turning to these the reader will perceive the economies of the plan 
 adopted. 
 
TABLE OF CONTENTS 
 
 The Leading Cases Pp. 1-11 
 
 The Principal Maxims Pp. 11-14 
 
 The Leading Cases discussing Fundamental principles; The relations of pro- 
 cedure to government; Illustrating that the study of procedure is a 
 study of government, and that the leading rules of evidence, pleading 
 and practice emanate from and are imbedded in the prescriptive con- 
 stitution the principles of which constitute the grounds and rudiments 
 of law; The mandatory record, its functions and what it supports; The 
 conserving principles of procedure; Their interactions with govern- 
 ment, its principles and scheme of protection and the commonplace 
 rules of evidence, pleading, practice and jurisdiction. Leading Cases.. 1-112 
 
 Superior and inferior tribunals; Distinctions; Presumptions of regularity; 
 Construction of proceedings; Certainty; Taxation requirements. Lead- 
 ing Cases 113-134 
 
 Allegata et probata must correspond; Important principles of the pre- 
 scriptive constitution, reflected from procedure. Leading Cases. .. .135-138 
 
 Amendments, the prayer to pleadings. Leading Cases 139-141 
 
 Division of State power; Implied power of government; Constitutional im- 
 plications ; Important principles of procedure. Leading Cases 142-158 
 
 Judicial immunity; Privilege of counsel; Of ministerial offices; Trespassers 
 ab initio; Arrests. Leading Cases 159-169 
 
 Jurisdiction of crime; Dies non; The judicial officer. Leading Cases 170-177 
 
 Leading rules of evidence; Nemo tenetur seipsum accusare; Continuity; 
 Omnia prmsumuntur contra spoliatorem; Judicial notice; Presumption of 
 regularity; Rules founded on the grounds and rudiments of law; Con- 
 venience, necessity, reason, the public welfare, alternations; Presump- 
 tions from possession; Best evidence; Burden of proof; Reasonable 
 doubt; Evidence must be certain; Recent possession of the fruits of 
 crime; Corpus delicti must be proved; Circumstantial evidence; Sanity, 
 presumptions relating to; Intent, how proved; Every one is presumed to 
 intend the natural direct and probable consequences of his act; Right 
 to cross examine; Admissions and confessions of agents and accom- 
 plices; Impeachment of witnesses; Proof of handwriting; Negligence, 
 how proved; Res ipsa loquitur; Evidence must be certain; System to 
 prove intent; Collateral facts to prove issue; Hearsay, exceptions to 
 rule; Shop books; General reputation, notoriety. Leading Cases. .178-213& 
 
 Construction from- the grounds and rudiments of law; The prescriptive 
 constitution limits or expands the meaning of all compacts — Treaties — 
 Constitutions — statutes — and contracts; Fundamental law is interpreted 
 for the usefulness and perpetuity of government — public policy; 
 Salus populi suprema lex; influence of the common law; Verba 
 fortius accipiuntur contra proferentem; Dovaston (217); Verba in- 
 tentione debent inservire; Harper (218); "Due Process of Law"; Mur- 
 ray (219) Prcesentia corporis, etc.; Hurtado (220); "Cruel and un- 
 usual punishment"; Wilkinson (221); Constitutions yield to prescrip- 
 tive organic law; Oakley (222); Indianapolis (223); O'Connell v. Reed 
 (224) ; The requirements of the conserving principles of procedure 
 limit or expand the words in constitutions and statutes; Bates (225); 
 Inherent powers of courts; Implications; S. v. Townley (225a); Im- 
 portant rules of pleading; Limits of legislative power to interfere 
 
 xiii 
 
xiv CONTENTS. 
 
 with the means of the Judiciary, Huntsman (231) ; The study of pro- 
 cedure is the study of government, U. S. v. Cruikshank (232, reprint- 
 ed in full with notes); Pleadings, limitations of liberal construction; 
 Dobson (232a); James (233); Constitutions and statutes may be void 
 in part; Ex post facto and retroactive laws; Impairment of the obliga- 
 tion of contracts; Rex non potest peccare; The state is not bound unless 
 it is named to be bound; Barron (214); The word "Jury" how con- 
 strued; Computation of time; Dicta of courts; Polity of the federal 
 government; Title to statutes; Legislatures can not declare the effect 
 of evidence; Sovereignty as parties to suits. Leading Cases 212-260 
 
 Judicial shams, frauds and mockeries; Relief from fraud in judicial pro- 
 ceedings; Coram non judice — Ex dolo malo non oritur actio; Judg- 
 ments may be set aside for fraud. Leading Cases 261-270 
 
 Province of court and jury; Jurisdiction of each. Leading Cases 271-272 
 
 Jurisdiction of courts; Ubi jus ibi remedium; Equity jurisdiction; In- 
 junctions; Comity of courts; Terms of court; After notice warrantors 
 and inheritors bound by judgments; Exemplary damages; Record in 
 one case to prove damage in another. Leading Cases 273-290 
 
 Statutory Record, its functions; Constitution of Appellate Procedure. Lead- 
 ing Cases 290a 
 
 Appellate procedure; Fundamental rules of; General objections insuf- 
 ficient; Objections — exceptions not necessary as to void and incompetent 
 matter; New trials; Assignment of error; Waiver; Estoppel; Matters 
 of discretion; Waiver of dilatory or abatement matter favored as a 
 conserving principle of procedure; Certainty required in appellate pro- 
 cedure; Certificate of doubt; Procedure; Delay of judicial proceed- 
 ings. Leading Cases ' 290a-300 
 
 Contract; The request, the offer, acceptance; The assent, consideration, the 
 formation of a contract; Statute of frauds; Signature to contract; 
 Agents; Mistake; Bailment; Common carriers; Innkeepers; Illegality — 
 In pari delicto; Restraint of trade; Public policy; Deceit; Fraud; De- 
 ception; Misrepresentation; Warranty— ^Caveat emptor; Bona fide pur- 
 chasers; Assignments; Commercial paper; Notice from possession; 
 Sales — Elements; Requirements; Agents, how sign; Fraud of agents; 
 Contracts of the insane, of drunkards; Miscellaneous cases. Leading 
 Cases 301-417 
 
 Index Pp. 218-250 
 
DATUM POSTS 
 
 TABLE OF THE 
 LEADING AND ILLUSTRATIVE CASES 
 
 Nos. I-4I6 
 
 (Abbreviations used herein are explained in a prefatory note.) 
 
 No. 
 Abel v. Alexander (Rees: King v. Bald- 
 win) (Relief of sureties) 334 
 
 Acraman v. Morrice (When title to 
 
 property passes on sale) 406 
 
 Adams v. Lindsell (Contracts by letter; 
 doctrine of continuity. Nullus com- 
 
 modum capere, etc.) 326 
 
 Addison v. Gandasequi (Agency ; parties 
 to suits upon contracts of agents, 
 
 Thomson) 343 
 
 Allen v. S. (Impeachment of witnesses) 203 
 Allen v. Wright (Arrests ; the law of) 167 
 Armory v. Delamire (Every presump- 
 tion against a wrongdoer. Omnia prm- 
 
 sumuntur contra spoliatorem) 180 
 
 Ashby v. White (There is no wrong 
 
 without a remedy. Vbi jus, etc.) . . 273 
 Auburn d O. Canal Co. v. Leitch (The 
 general demurrer searches the sub- 
 stantial pleadings and attaches to 
 the first fault ; it is never waived. 
 McAllister. It will keep. Mallinckrodt) 9 
 Bailey v. Bailey (Proceedings in one 
 case may be pleaded to estop a party 
 in another case. Allegans contraria.) 44 
 Bainbridge v. Firmstone (Any, the 
 least, favor will constitute a consid- 
 eration for the wronged person to 
 
 complain) 332 
 
 Baldey v. Parker (What is acceptance 
 and delivery ; statute of frauds con- 
 tract for several articles, in all ex- 
 ceeding $50.00 in value sufficient) . . 337 
 Barnard v. Gushing (All within the 
 four corners, will be looked after 
 and construed, and effect will be 
 
 given to all) 108 
 
 Barr v. Post (Perjury as a ground 
 
 for setting aside a judgment. Graver) 265 
 Barron v. Baltimore (The first ten 
 amendments of the federal constitu- 
 tion do not apply to the states. Boy 
 
 N'Est, etc.) 241 
 
 Barrow v. Bill (Discretionary matters 
 in practice ; how viewed ; are not ex- 
 cept for abuse. Clyde Mattox).... 298 
 Bartholomew v. Jackson (Considera- 
 tions not moved by previous request 
 
 No. 
 of a party benefited thereby are in- 
 sufficient to constitute a wrong) .... 302- 
 Bartlett v. Crosier (Statutory claims 
 and defenses must be pleaded with 
 essential certainty. Rushton v. As- 
 
 Pinall) 6 
 
 Bassett v. Nosworthy (Bona fide pur- 
 chasers in possession are protected in 
 
 equity. LeNeve v. LeNeve) 395 
 
 Bates v. Bulkley (Statutes regulating 
 practice are construed to maintain 
 the conserving principles of procedure 
 and not to defeat them. Concordare 
 leges, etc.; Indianapolis, etc., R. R.) 225 
 Bauerman v. Radenius (Oral evidence 
 admissible to show real party to 
 record, and who directed the suit) . . 48 
 Baxter v. Portsmouth (Contracts of 
 
 the insane) 414 
 
 Beardsley v. Dolge (Consent will not 
 
 confer jurisdiction of subject-matter) la 
 Beaumont v. Reeve (Past cohabitation 
 no consideration for a promise. 
 Promise to pay therefor, constitutes 
 
 no wrong) 36T 
 
 Belknap v. Schild (The government as a 
 party. Sovereignty cannot be sued 
 without its consent; Hunsaker ». 
 
 Borden) 260 
 
 Beverley's Case (One cannot stultify 
 himself, was the view of Coke ; the 
 
 old rule) 416- 
 
 Billard v. S. (Reasonable doubt; the 
 rule of distinguishes criminal evi- 
 dence from civil) 189 
 
 Birkmyr (or Byrkmyr) v. Darnell, 
 
 (Frauds and perjuries) 339 
 
 Bissell v. Spring Valley Township (De- 
 murrers ; admissions by ; effect) .... 42 
 Blackett v. Royal Exchange Assurance 
 Co. (Oral evidence inadmissible to 
 prove a custom varying a contract) . 400 
 Blair v. Reading (Power of judges at 
 chambers ; the 'forms of the law are 
 
 a part of the law) 170 
 
 Blair v. Ridgley (Construction of 
 statutes ; legislative power ; limita- 
 tions) 254 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 Bloom v. Burdick (Limitations of judi- 
 cial power; jurisdiction.; elements. 
 Audi alteram partem. A statutory 
 power like the authority of an agent 
 must appear and be strictly pursued, " 
 and that authority must affirmatively 
 appear so it can be pleaded in sub- 
 sequent causes for the requirements 
 of the conserving principles. Ransom : 
 122; Thatcher: 117. Crepps) 266 
 
 Bobel v. P. (Title to express the sub- 
 ject of a statute — constitutional re- 
 quirements) 250 
 
 Boileau v. Rutlin (Pleadings as evi- 
 dence ; their admissibility and effect. 
 Bailey ; Dickson cases) 43 
 
 Bonaparte v. Camden & Amboy R. R. 
 (Injunctions to restrain a trespass). 278 
 
 Bonesteel v. Orvis (Judgment on dila- 
 tory matter is not res adjudicata) . . 151 
 
 Bonnell o. Wilder (Burden of proof. 
 Actore non probante reus absolvitur) 185 
 
 Borden v. Fitch (Fraud vitiates claims 
 for an adjudication. Audi, etc. ; 
 Bloom) 267 
 
 Borkenhagen v. Paschen (Probata will 
 not supply allegata; defenses not 
 pleaded are waived. Evidence is in- 
 admissible without allegations. 
 Schutte, Bristow. Code rule) 81 
 
 Boston Ice Co. v. Potter (Mistake as 
 to party contracting excuses from 
 liability. One parting with his prop- 
 erty by mistake is not wronged) . . . 320 
 
 Boston and Maine R. R. v, Bartlett 
 (Continuity; presumption of applies 
 in contract law. Adams v. Lindsell) 531 
 
 Bowlus v. Phoenix Ins. Co. (Pleadings 
 must not be too narrow) 100 
 
 Boyd v. Blankman (Aider by pleading 
 over — from subsequent pleadings. 
 Hitchcock v. Haight) 62 
 
 Bradbury v. Cronise (Admissions upon 
 a record are conclusive and invulner- 
 able to evidence aliunde. Dickson ; 
 Bissell) 35 
 
 Brewer Brewing Co. v. Boddie (Motion 
 for a new trial essential to present 
 waivable error to an appellate court. 
 General assignments of error insuffi- 
 cient. Miller v. Dill) 296 
 
 Brice v. Bannister (Assignees; rights 
 to recover upon an assignment. 
 Assignatus utitur, etc.) 398 
 
 Bristow v. Wright (Allegata et probata 
 must correspond. There must be al- 
 legations. These limit jurisdiction. 
 Campbell v. Greer : 2a ; Fish v. 
 Cleland : 12c. Frustra probatur) . . . 135 
 
 Brittain v. Kinnaird (Records are con- 
 clusive evidence. Mondel v. Steel) . 50 
 
 Bronjton v. Kinzie (Impairing the obli- 
 gation of contracts. "Von Hoffman 
 v. Quincy ; Calder v. Bull) 238 
 
 Brooks v. Martin (Illegal contracts en- 
 forced if illegality is too remote) . . 370 
 
 Brown, Ex parte (Deception of courts 
 a contempt. Sham and false plead- 
 
 Leading Cases — Table. No. 
 
 lng reprehensible. Graver ; Barr v. 
 Post) 105 
 
 Brown v. Butchers' & Drovers' Bank 
 (Signature ; what is a sufficient) . . 346 
 
 Brown v. Lamphear (Mistake in sale ; 
 rescission ; remedies) 347 
 
 Brown v. Spofford (Oral evidence to 
 affect written) 54 
 
 Brown v. Swineford (Arguments of 
 counsel if abusive and irrelevant are 
 a ground for reversal) 161 
 
 Brugger v. State Investment Co. (Join- 
 der of cause of action — of counts) . . 162 
 
 Bulkley v. Landon (A promise to pay 
 one for what he has already done 
 without request is no consideration. 
 Ex nudo pacto, etc.) 315 
 
 Bunn v. Riker (Illegal contracts — 
 gambling. Ex turpi causa) 362 
 
 Burks v. Bosso ( Statutory construc- 
 tion ; important rule) 217a 
 
 Butler v. P. (Ordering a witness at- 
 tached without first subpoenaing him 
 is a contempt) 106 
 
 Byrne v. Boadle (Res ipsa loquitur, 
 Kearney v. London R. R. ; Stokes v. 
 Saltonstall) 209 
 
 Calder v. Bull (Ex post facto laws. 
 Bronson v. Kinzie) 237 
 
 California v. San Pablo R. R. (Dead 
 issues are not a subject-matter to 
 employ a court) 270 
 
 Calye's Case (Innkeepers ; rights and 
 remedies) 356 
 
 Campbell v. Greer (S. P. Campbell v. 
 Porter) 2a 
 
 Campbell v. Porter (Consent will not 
 confer jurisdiction of subject-matter ; 
 a coram judice record essential for 
 many purposes. One may object to 
 his own pleading, and for the first 
 time in the- appellate court. Van 
 Leuven v. Lyke) 2 
 
 Carotti v. S. (Continuity; Doctrines of. 
 Adams v. Lindsell) 179 
 
 Chandelor v. Lopus (Deceit; action of. 
 Pasley v. Freeman) 374 
 
 Citizens' Street R. R. v. Stockdell 
 (Evidence must be certain ; essential 
 facts must appear, and not be left 
 for inference) 186 
 
 Clark v. Sires ( Substance not im- 
 ported by presumption of regularity. 
 Hannah : 128) 2c 
 
 Clem v. Meserole (S. P. "Windsor) .... 2& 
 
 Cleves v. Willoughby ( Caveat emptor 
 applies to a lessee of lands) 383 
 
 Clyde Mattox Case (Arbitrary acts of 
 judges will be reviewed. Barrow 
 v. Hill) 153 
 
 Clydesdale Bank v. Paton (The state- 
 ment of a cause of action must ap- 
 pear. Rushtdn v. Aspinall) 8 
 
 Coffin v. V. S. (Innocence is presumed) . 185 
 
 Coggs v. Bernard (Bailments; Law of 
 Trust and confidence for a gratuitous 
 undertaking is a sufficient considera- 
 tion) 350 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 Cohens v. Virginia (Courts are bound 
 by tbeir records. Dicta does not 
 bind. Horan v. Wahrenberger ; 
 Houston v. Williams) . . ._ 244 
 
 Collector v. Day (Polity of' the federal 
 government. M'Culloch v. Mary- 
 land ; U. S. v. Cruikshank) 148 
 
 C. v. Bean (Pleading statutes. Lan- 
 guage of the statute generally suffi- 
 cient. See U. S. v. Cruikshank) . . 228 
 
 C. v. Eastman (Indictments must be 
 certain for "due process of law" ; 
 Huntsman v. S. ; U. S. v. Cruik- 
 shank ; R. v. Wheatley) 22 
 
 C. v. Gannett (Res inter alios acta, 
 etc.; general reputation to convict) . 2130 
 
 C. v. Hart (Construction; provisos)... 227 
 
 C. v. Hess (The common law is con- 
 strued into all subjects-matter. Trist : 
 212; Oakley: 222; Rushton : 5).... 215 
 
 C. v. Kane (Prolixity of proof is to 
 be avoided) 183 
 
 C. v. McKie (Burden of proof in crim- 
 inal cases) 187 
 
 C. v. Macloon (Jurisdiction in crim- 
 inal cases) 172 
 
 C. v. Roby (Conviction for a lesser 
 offense when a bar to a prosecution 
 for a greater ; why there must be 
 . pleadings) 7 4 
 
 C. v. Rogers (Malice ; how proved. Res 
 ipsa loquitur) 199 
 
 C. v. York (Malice; how proved; it is 
 inferred from facts and circum- 
 stances) 197 
 
 Conductors' Benefit Association v. 
 Leonard (Appellate procedure ; im- 
 portant rules ; extension of time to 
 file bill of exceptions ; parties 
 charged with knowledge of the record) 294 
 
 Cook v. Bradley (A consideration must 
 be more than a volunteer gratuity to 
 support a promise constituting a 
 wronged person. Lampleigh v. 
 Brathwait ; Mills v. Wyman) 314 
 
 Cooke v. Oxley (Both sides must be 
 bound, or neither, is a fundamental 
 rule of contract law) 321 
 
 Cooper v. Kane (Oral evidence admis- 
 sible to show usage of trade. Wig- 
 glesworth v. Dallison) 403 
 
 Cornfoot v. Fowke (The fraud of the 
 agent is the fraud of the principal. 
 Fitzsimmons v. Joslin) 385 
 
 Counselman u. Hitchcock {Nemo tene- 
 tur seipsum accusare) 178 
 
 Craswell v. Belanger (Diverse citizen- 
 ship must be distinctly alleged to 
 give federal courts jurisdiction, where 
 that is required. It cannot be 
 
 waived) 10 
 
 Crepps v. Durden (Inferior and statu- 
 tory tribunals ; jurisdictional facts 
 must affirmatively appear. Bloom : 
 266 ; Clark v. Sires ; Cruikshank : 
 232 ; Omnia prmsumuntur rite, etc. ; 
 Limitations. Ricketson v. Richard- 
 
 Leading Cases — Table. no. 
 
 son; Hannah v. Chase: Ransom v. 
 Williams) 113 
 
 Cromwell v. County of Sac (Estoppel 
 by verdict depends upon technical and 
 abstruse rules ; these stated in Out- 
 ram v. Morewood. Defeases not 
 pleaded are waived) 26 
 
 Cumber v. Wane (A promisee parting 
 with no consideration for a promise 
 is never . wronged by it. Ex nudo 
 pacto non oritur actio. See Accord 
 and Satisfaction) 311 
 
 Cutter v. Powell (Expressio unius eat 
 exclusio alterlus : Courts will not 
 make contracts for parties) 308 
 
 Da Costa v. Jones (Gambling contracts ; 
 
 Holman : 363) 361 
 
 Dame v. Wood (Entire contract) 308c 
 
 Dant v. S. (What is sufficient evidence 
 to convict : reasonable doubt. Bil- 
 lard v. S. ; Citizens' R. R. v. Stock- 
 dell) 212 
 
 Dash v. Van Kleeck (Calder) 237a 
 
 Davenport v. Farrar (Matter not jurid- 
 ically presented cannot be Judicially 
 considered) 2e 
 
 Dennett, Petitioner (Division of state 
 power is a great constitutional prin- 
 ciple pervading procedure. Flournoy 
 v. Jeffersonville. A study of proced- 
 ure is a study of government. U. S. 
 v. Cruikshank ; R. v. Wheatly) .... 145 
 
 Deputron v. Young (Proceedings divest- 
 ing one of his property must appear 
 of record. Bloom v. Burdiek ; Ran- 
 som v. Williams ; Thatcher v. Pow- 
 ell ; Iverslie v. SpauLding) 121 
 
 Dickson v. Cole (Admissions by plead- 
 ings. Every presumption is against 
 a pleader. A court will believe what 
 the parties believe, if consistent with 
 reason and the record) 34 
 
 Didsbwy v. Thomas (Hearsay evidence 
 inadmissible. Res inter alios acta) .213e 
 
 Diggle v. Higgs (Illegal contracts; In 
 pari delicto defenses ; how available. 
 Holman v. Johnson ; Trist v. Child) . . 371 
 
 Dimes v. Proprietors of Grand Junction 
 Canal (Nemo debet esse judex, etc. ; 
 Oakley v. Aspinwall) 176 
 
 Dinehart v. Lafayette (Ex parte in- 
 junctions ; pleadings as evidence ; the 
 allegation must be positive and cer- 
 tain) 279 
 
 Ditchburn v. Goldsmith (Gambling con- 
 tracts ; gambling ; practice. Holman 
 v. Johnson) 359 
 
 Dobson v. Campbell (Presumption of 
 regularity to aid pleadings ; limita- 
 tions. De non apparentibus. U. S. v. 
 Cruikshank) 232a 
 
 Dovaston v. Payne (Verba chartarum 
 fortius, etc. Every presumption 
 against a pleader. U. S. v. Cruik- 
 shank ; R. v. Wheatly : Dickson v. 
 Cole ; Huntsman v. S. : Rushton v. 
 Asninall) 217 
 
 Drayton v. Wells (Testimony of wit- 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 nesses dead, absent or subsequently 
 disqualified. Res inter alios acta) . 213 
 
 Dunlap v. Cody (Execution of process 
 by means of fraud or deception viti- 
 ates. Executio juris, etc. ; Illsley v. 
 Nichols) 108 
 
 Duseribury v. Ellis (Agency ; parties in 
 ultra vires contracts of agents) .... 412 
 
 Button o. Gerrish (Caveat emptor; ap- 
 plies to a lessee. Cleves v. Will- 
 oughby) 381 
 
 Eastwood v. Kenyon (Frauds and per- 
 juries — debt, default, or miscarriage 
 of another. Birkmyr \. Darnell) . . . 336 
 
 Eddy Co. v. Blackburn (Allegata et 
 probata must correspond. Bristow v. 
 Wright) 136 
 
 Edwards v. Allouez Mining Co. (Equity 
 will not aid a speculator as it would 
 his assignor) 282 
 
 Edwards v. Kearzey (There is no wrong 
 without a remedy. Validity of ex- 
 emption laws) 286 
 
 Eliason v. Henshaw ( See Adams v. 
 Lindsell — Contracts by letter ; tele- 
 gram) 330 
 
 Ellis v. Esson (Parties — joint trespass- 
 ers — release of one is a release of all) 389 
 
 Elmore o. Stone (Frauds and perjuries. 
 What is a. sufficient change of pos- 
 session) 409 
 
 Evans v. Jones (Gambling contracts ; 
 Holman v. Johnson) 360 
 
 Farnam v. Brooks (Fraud, how alleged. 
 Facts, not conclusions, must be 
 pleaded. TJ. S. v. Cruikshank ; Han- 
 ford v. Davies ; Green v. Palmer).. 97 
 
 Feltfiouse v. Bindley (See Adams v. 
 Lindsell) 325 
 
 Ferguson v. Crawford (Recitals in rec- 
 ords may be contradicted. Audi al- 
 teram partem. Starbuck v. Murray) 264 
 
 Field v. Holland (Application — appro- 
 priation — of payments) 387 
 
 Field v. Mayor of New York (Defenses 
 not pleaded are waived. Cromwell 
 v. County of Sac ; Munday v. Vail) . 84 
 
 Fish v. Cleland (Pleadings are to con- 
 fer also limit jurisdiction) 12c 
 
 Fitzsimmons v. Joslin (The fraud of the 
 agent is the fraud of the principal. 
 Cornfoote v. Fowke) 384 
 
 Fletcher v. Trewalla (Consent will not 
 confer jurisdiction of subject-matter. 
 One may dispute the validity of his 
 own assessment) 18 
 
 Flournoy v. Jeffersonville (Division of 
 state power. Dennett, petitioner. A 
 clerk can not act as judge) 146 
 
 Freeman v. Howe (Property custodia 
 legis ; jurisdiction; comity of courts; 
 important rules) 287 
 
 Frost v. Knight (Renunciation of con- 
 tract gives immediate right to sue) . .308a 
 
 Furtnan v. Furman (Vacating and set- 
 ting judgments aside) 262 
 
 Furman v. Nichols (Federal question ; 
 how it must be made to appear) . . . ,147a 
 
 I Leading Cases — Table. no. 
 
 Gal pin v. Page, 3 Saw. 93 ("According 
 to the course of the common law" — 
 definition — "due process of law" ; 
 service by publication ; origin and 
 history) .* 63 
 
 Galpin v. Page, 18 Wall. (Superior and 
 inferior courts ; distinctions. Crepps 
 v. Durden ; Williamson v. Berry) ... 64 
 
 Garland v. Davis (Courts sua sponte 
 notice the record and act upon sub- 
 stantial defects in them without re- 
 gard to the position of the parties. 
 Campbell v. Porter) 60 
 
 Garland v. Gaines (Denials) 40 
 
 Garland v. Wholebau (Consensus tollit 
 errorem. One cannot change his base 
 on appeal, Limitations) 297 
 
 Gay v. Winter (Duty of courts to de- 
 fine issues before a trial) 138 
 
 Gentry v. U. S. (There must be allega- 
 tions, and proof must correspond) . ■. 88 
 
 Gibbs v. Benjamin ( Sales ; when title 
 passes) 405 
 
 Gibler v. Mattoon (Only a wronged 
 party can assign error in an appel- 
 late court) 96 
 
 Good v. Elliott (Gambling contracts ; 
 Holman v. Johnson; In pari, etc.).. 358 
 
 Goss v. Nugent (Oral evidence inadmis- 
 sible to prove anything within the 
 statute of frauds) . '. 55 
 
 Grand Trunk R. R. Co. v. Ives (Con- 
 sensus tollit errorem; Objections and 
 exceptions must not be too broad) .. .290c 
 
 Graver v. Faurot (Judgments founded 
 on false and sham pleadings will be 
 set aside) 103 
 
 Green v. Palmer (Facts, not conclusions 
 of law, must be pleaded. Code 
 pleadings; genius of; S. P. Borken-- 
 hagen : 81 ; Mallinckrodt : 12a, Code) 90 
 
 Guedell v. P., S. P. C. -v. Rohy (Bris- 
 tow : 135) 74a 
 
 Gulick v. Ward (Illegal contracts; 
 puffers at auctions. Remedies. In 
 pari, etc.) 36 1 
 
 Hall v. Corcoran (Illegal contracts; In 
 pari, etc.) 36$ 
 
 Hallett v. Wylie (Destruction of prop- 
 erty ; whose loss) 308a" 
 
 Hamilton 0. Whitridge (Injunctions to 
 restrain crime) 280 
 
 Hammack v. White (Res ipsa loquitur; 
 presumptions from happening of ac- 
 cident. Kearney v. London R. R.) . . 20S 
 
 Hand v. Waddell (Skeleton bills of ex- 
 ceptions — practice) 395 
 
 Hanford v. Davies CFacts, not conclu- 
 sions of law, must be pleaded. TJ. S. 
 v. Cruikshank ; Green v. Palmer ; 
 Farnam v. Brooks) 86 
 
 Hanly v. Gandy (Handwriting; how 
 proved ; rules) 204 
 
 Hannah v. Chase (Jurisdictional facts 
 are never presumed ; they must 
 affirmatively appear. Bloom v. Bur- 
 dick ; U. S. v. Cruikshank ; Ransom 
 v. Williams) 128 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 Harkness v. Hyde (Service of process 
 in a wrong jurisdiction is not waived 
 by pleading over; exceptional rule). 152 
 Harper v. City Insurance Co. (Con- 
 struction : Verba intention debent in- 
 > servire. Letter must yield to the in- 
 tent; practical construction) 218 
 
 Harris v. Brooks (Deceit ; fraud of prin- 
 cipal will discharge surety) 386 
 
 Harris v, Muskingum Manufacturing 
 Co. (Corporate existence; when 
 
 presumed) 229 
 
 Harris v. 8. (The mandatory and the 
 statutory records — functions of. Mo- 
 tions in arrest relate to the former) . 158 
 Harris v. Tyson (Vendees buy realty 
 
 caveat emptor. Constructive notice) 380 
 Harvey v. Richards (A court is bound 
 by its record ; Res aa" judicata require- 
 ments exclude usurpation) 32 
 
 Harvey v. Tyler (Omnia prmsumuntur 
 rite, etc., liberally applied. Crepps 
 v. Durden ; Ransom v. Williams) .... 123 
 Haskel v. Haskel (Statements of de- 
 mands must be separate and dis- 
 tinct) 101 
 
 Hastings v. Lusk (Immunity of coun- 
 sel ; limitations) 160 
 
 Hauswirth v. Sullivan (Returns of 
 sheriffs not conclusive ; may be im- 
 peached. Service of process on Sun- 
 day. S. v. Conwell ; Dies dominicus. 51 
 Hendrick v. Lindsay (One for whom 
 a consideration moved is a wronged 
 party. Exceptional rule. One may 
 contract for a third, who may sue in 
 
 his own name) 319 
 
 Hickory v. U. 8. (Circumstantial evi- 
 dence most weighty, sufficient to es- 
 tablish the most important facts) . . 194 
 Higham v. Ridgway (Hearsay evidence ; 
 declarations of deceased persons 
 
 against interest) 213c 
 
 Hitchcock v. Haight (Aider ; a verdict 
 
 will not aid defective pleadings. Boyd 
 
 v. Blankman. Motions in arrest) ... 12 
 
 Hochster v. Be La Tour (Renunciation 
 
 of contract gives immediate right to 
 
 sue) 3086 
 
 Hogins v. Plymton (A consideration 
 necessary to constitute a wronged 
 
 person) 379 
 
 Hollister v. Nowlen (One cannot stipu- 
 late against his own fraud. In pari 
 
 delicto, etc.) 354 
 
 Holman v. Johnson (In pari delicto 
 contracts courts will refuse to enforce 
 for reasons of public policy. Illegal 
 defenses need not be pleaded, if they 
 
 otherwise appear) 363 
 
 Hood v. Sudderth (Prayer; when suffi- 
 cient) 141 
 
 Hopkins v. Tanqueray (Warranty ; Ca- 
 veat emptor. Hogins v. Plymton) . . . 378 
 Hopper v. Covington (An authority must 
 be pleaded. Facts, not conclusions of 
 law, must be pleaded. Material alle- 
 gations cannot be omitted) 4 
 
 Leading Cases — Table. no. 
 
 Horan v. Wahrenberger (Authority of 
 supreme courts to make a judgment 
 may be inquired into. Houston v. 
 Williams) 85 
 
 Hoskins v. P. (A plea of not guilty es- 
 sential to authorize a trial, and it 
 must appear from the record. Crain, 
 Munday) 80 
 
 Household Fire Insurance Co. v. Grant 
 (See Adams v. Lindsell) 328 
 
 Houston v. Williams (A court's author- 
 ity to proceed and adjudicate must 
 appear from its records. Dicta does 
 not bind. Cohens v. Virginia ; Horan 
 v. Wahrenberger) 245 
 
 Howard u. 8. (Conclusions of law are 
 void in process) 166 
 
 Humphreys v. McCall (Denials upon 
 information and belief. Strict re- 
 quirements) 38 
 
 Hunsaker v. Borden (Sovereignty can- 
 not be sued against its consent. Bel- 
 knap v. Schild) 259 
 
 Huntsman v. S. ("Due process of law" 
 demands certainty in charging a 
 crime. U. S. v. Cruikshank ; R. v. 
 Wheatley ; Moore v. .C.) 231 
 
 Hurtado v. California (Due process of 
 law ; requirements are satisfied if 
 fundamental principles of the com- 
 mon law are respected. Murray v. 
 Hoboken Land Co. ; C. v. Hess) .... 220 
 
 JUsJey v. Nichols (What cannot be done 
 legally cannot be done illegally or 
 what cannot be done directly cannot 
 be done indirectly, Dunlap : 108)... 169 
 
 Indianapolis & St. Louis R. R. v. Horst 
 (Construction; limitation of legisla- 
 tive power to interfere with procedure. 
 O'Connell v. Reed) 223 
 
 Ingalls v. Bills (Common carriers; dili- 
 gence required) 353 
 
 Insurance Co. v. Folsom (Bills of ex- 
 ceptions essential to show error in re- 
 gard to waivable matter) 157 
 
 Israel v. Reynolds (A replication essen- 
 tial for an issue to authorize a court 
 to try a cause. Munday v. Vail) . . 83 
 
 Iverslie v. Spaulding (The. best evidence 
 of which a case in its nature is sus- 
 ceptible shall be produced. What 
 ought to be of record must be proved 
 by record and by the right record) . . 46 
 
 James v. Bowman (Construction, indict- 
 ments must be certain. TJ. S. v. 
 Cruikshank. Statute void in part, 
 void in toto) 233 
 
 J' Anson v. Stuart (Facts, not conclu- 
 sions of law, must be pleaded. Hop- 
 per v. Covington ; TJ. S. v. Cruik- 
 shank. Defamation defenses must be 
 pleaded ; defenses not pleaded are 
 
 waived. Important notes) 91 
 
 Jones v. Just (Warranty ; Caveat emp- 
 tor) 376 
 
 Jordan v. Grecnboro Furnace Co. 
 (Frauds and perjuries; how pleaded; 
 conflicting rules) 228 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 Jordan v. Norton (Acceptance of con- 
 tracts must be of precise terms 
 offered) 324 
 
 Kansas City, M. & B. R. R. v. Riley 
 (Common carriers; liability of; 
 cases) 357 
 
 Kearney v. London R. R. (Res ipsa 
 loquitur; presumption from happen- 
 ing of accident. Byrne v. Boadle) . . 211 
 
 Kelley v. Hemming way (Certainty es- 
 sential for a contract) 304 
 
 Kelly v. Bemis (Unconstitutional law is 
 no law) 285 
 
 Kemble v. Farren (Parties may stipu- 
 late a measure of damages unto 
 themselves) 391 
 
 Kempe's Lessee v. Kennedy (Inferior 
 and statutory tribunals ; jurisdictional 
 facts must appear of record. Iverslie 
 v. Spaulding) 115 
 
 Kewaunee County v. Decker ( Code 
 pleadings ; cannot be "flesh, fish, or 
 fowl") 29 
 
 King v. Baldwin (Sureties; remedies 
 of. Abel v. Alexander; Rees v. Ber- 
 rington) 334ft 
 
 King v. Oregon Short Line R. R. (Negli- 
 gence ; pleading of, what sufficient ; 
 general allegations, when permitted) 205 
 
 Kingston's (Duchess of) Case (Estop- 
 pel of record — res adjudicata — rules) 76 
 
 Kraner v. Halscy (Dilatory — abatement 
 pleadings — must be certain ; ambi- 
 guity will defeat. U. S. v. Cruik- 
 shank) 299 
 
 Kyle v. Kavanaugh (Mistake avoids a 
 contract ; remedies) 348 
 
 Lampleigh v. Bratlnoait (A considera- 
 tion must move upon the request of 
 the promisor in order to constitute 
 the promisee a wronged person. Ex 
 nudo pacto non oritur actio) 301 
 
 Lanfear v. Mestier (Judicial notice. 
 Matter of law need not be pleaded, 
 De non apparentibus, etc.) 181 
 
 Langabier v. Fairbury, etc. R. R. (An 
 injunction may issue upon Sunday). 174a 
 
 Lange v. Benedict (Immunity of judi- 
 cial officers) 159 
 
 Lawrence v. Fast ( Certainty essential 
 in taxation proceedings) 132 
 
 Lea v. Lea (Ambiguity will defeat a 
 plea of Res adjudicata) 36 
 
 Lee v. Griffin (Frauds and perjuries; 
 contract for article to be manufac- 
 tured need not be in writing) 338 
 
 Lee v. Muggeridge (A moral obligation 
 will not support a promise) 318 
 
 Le Neve v. Le Neve (Bona fide pur- 
 chasers of property ; doctrines of) . . 396 
 
 Lester v. Foxcroft (Equitable excep- 
 tions to the statute of frauds. Effect 
 of circumstantial evidence) 341 
 
 Lickbarrow v. Mason ("Where one of 
 two equally innocent persons must 
 suffer from the fraud of a third, he 
 who first trusted must first suffer) . . 394 
 
 Leading Cases — Table. no. 
 
 Livingston v. Roosevelt ( Partners ; 
 rights and liabilities) 345 
 
 Loeffner v. S. (Motive — malice — intent; 
 how proved) 196 
 
 Logan v. U. -S. (Expressio eorum. 
 M'Culloch) 249 
 
 Losee v. Buchanan (Res ipsa loquitur. 
 Presumption from happening of ac- 
 cident) 210 
 
 Lough v. Outerbridge (Concensus tollit 
 errorem. Montgomery v. Edwards) . 293 
 
 Lovejoy v. Murray (Warrantors bound 
 by proceedings after notice) 289 
 
 Lowry v. Moore (False and sham plead- 
 ings give no right to be heard) .... 104 
 
 Maclay v. Harvey (See Adams v. Lind- 
 sell) 327 
 
 Mahaska (County of) v. Ingalls (Hear- 
 say ; declarations and entries of de- 
 ceased persons against interest) ... .213d 
 
 Maher v. S. (Practical construction; its 
 weight and effect) 255 
 
 Mallan v. May (Illegal contracts — in 
 restraint of trade, when valid ; con- 
 tract may be void in part) 373 
 
 Mallinckrodt v. Nemnich (S. P. Camp- 
 bell v. Porter, Record essentials. 
 Verba fortius; Dobson) 12a 
 
 Marbury v. Madison (Vesting of judicial 
 power by constitution is exclusive. 
 Expressio unius, etc.) 142 
 
 Martin v. Hunter's Lessee (Appellate 
 power of federal supreme court ; 
 polity of federal government. A great 
 and instructive case) 246 
 
 Marx v. Hanthorn (Taxation proceed- 
 ings must be certain ; 132-133) 126 
 
 Matthews v. 8. (The corpus delicti must 
 be proven. Hickory v. U. S.) 193 
 
 McAllister v. Kulin (The ground of the 
 general demurrer is never waived ;- it 
 attaches to the first fault) 3 
 
 McArthur v. Howett (A plaintiff must 
 look after and conserve the files. See 
 Constructive Notice ; Iverslie v. 
 Spaulding) 99 
 
 McCaughey v. Schuette (Matters of evi- 
 dence need not be pleaded) 184 
 
 McCulloch v. Maryland ( Construction ; 
 Expressio eorum, etc.) 147 
 
 McCully v. Clark (Negligence is not 
 presumed ; it must be alleged and 
 proved) 206 
 
 McElmoylc v. Cohen (Full faith and 
 credit due the judicial records of 
 sister states. Mills v. Duryee) .... 56 
 
 McKyring v. Bull (New matter must 
 be pleaded. Defenses not pleaded are 
 waived) 33 
 
 McLaughlin v. Kelly (Remedies must 
 be afforded according to the record 
 requirements) 31 
 
 McNaghten's Case (Insanity as a de- 
 fense ; burden of proof) ; 195 
 
 Miller v. Dill (Objection that evidence 
 is "irrelevant, immaterial and incom- 
 petent," is too general) 2906 
 
 Mills v. Duryee (Full faith and credit 
 
DATUM POSTS. 
 
 Leading Gases — Table. no. 
 
 due judicial records of sister states. 
 McBlmoyle) 57 
 
 Mills v. Wyman (A consideration must 
 move at the request of the promisor 
 to constitute the promisee a wronged 
 person. Lampleigh v. Brathwait) . . . 316 
 
 Mitchell u. Kingman (Contracts of in- 
 sane persons ; insanity as » defense) . 415 
 
 Mitchel v. Reynolds (Contracts in re- 
 straint of trade ; In pari delicto de- 
 fenses) 372 
 
 Mobley v. Nave (Records are conclu- 
 sive ; Mondel) 46a 
 
 Mohr v. Manierre (Sales of decedent's 
 lands by probate courts ; "due process 
 of law" ; jurisdiction) 68 
 
 Molten v. Camroux (Insanity as a de- 
 fense to a contract) 413 
 
 Mondel v. Steel (Records as evidence 
 are irrefragable in res adjudicata 
 questions) 77 
 
 Montana C. M. v. Missoula County 
 (Pleadings essential) 10& 
 
 Montgomery Beer Bottling Works V. 
 Gaston (Records, what are) 47 
 
 Montgomery v. Edwards (Consensus 
 tollit errorem) 292 
 
 Moore v. C. (Indictments must set forth 
 a crime with certainty. Every pre- 
 sumption is against a pleader. U. 
 S. v. Cruikshank ; Dovaston v. Payne) 21 
 
 Morley v. Attenborough (Warranty ; 
 Caveat emptor) 377 
 
 Moser v. White (There can not be an 
 oral assessment and collection of a 
 tax. Iverslie- v. Spaulding) 125 
 
 Mostyn v. Fabrigas (Local and transi- 
 tory actions ; jurisdiction) 274 
 
 Munday v. Vail (Defenses not pleaded 
 are waived) 79 
 
 Murray v. Hoboken Land Co. ("Due 
 process of law" denned) 219 
 
 Myers v. Erwin (Pleas in abatement; 
 Technical rules) 150 
 
 Neagle's Case ( See Logan v. U. S. ; 
 M'Culloch v. Maryland) 248 
 
 Needham v. Thayer (Judgments may be 
 set aside for fraud ; records may be 
 impeached) 261 
 
 Nelson v. Rockwell (Inferior and statu- 
 tory tribunals ; Records of must af- 
 firmatively show jurisdictional facts). 129 
 
 New York Central R. R. v. Fraloff 
 (Common carriers ; liability for bag- 
 gage) 355 
 
 Nixon v. Ruple ("What ought to be of 
 record must be proved by record." 
 Iverslie v. Spaulding) 127 
 
 Noble v. Durrell (Construction; A cus- 
 tom contrary to a statute is bad) .... 251 
 
 Oakley v. Aspinwall, 3 N. Y. (Construc- 
 tion ; fundamental principles annex 
 themselves. C. v. Hess ; Nemo debet 
 esse judex, etc. Dimes v. Grand 
 Junction Canal, Indianapolis, etc., R. 
 R. v. Horst ; Concordare leges legibus. 222 
 
 Oakley v. Aspinwall, 4 N. Y. (Audi al- 
 teram partem. Notice is implied) . . 66 
 
 Leading Cases — Table. no. 
 
 O'Connell v. Reed (Indianapolis, etc., 
 R. R. v. Horst ; construction ; Limita- 
 tions of legislative power) 22-1 
 
 Olive v. S. (Judicial notice. Lanfear v. 
 Mestier; De non apparentibus, etc.) 1S2 
 
 Oscanyan v. Winchester Arms Co. (Ad- 
 missions ; solemn, judicial, binds 
 client. Dickson v. Cole ; Pearce v. 
 Brookes) 41 
 
 Outrain v. Mor&wood (Estoppel by ver- 
 dict — by record ; leading rules. Crom- 
 well v. County of Sac) 25 
 
 Pain, Ex parte (Repugnant pleadings 
 are void. Every presumption against 
 a pleader. Dovaston v. Payne) 107 
 
 Pasley v. Freeman (Deceit — misrepre- 
 sentation ; remedies for. Caveat emp- 
 tor. Chandelor v. Lopus) 375 
 
 Payne v. Cave (Auction sales ; when 
 sale is complete ; when title passes. 
 Tarling v. Baxter ; Gibbs v. Benja- 
 min) 307 
 
 Peachy v. Somerset (Parties may stipu- 
 late for fixed, liquidated damages. 
 Kemble v. Farren) 392 
 
 Pearce V. Brookes (Illegal contracts ; In 
 pari delicto defenses. Holman v. 
 Johnson ; Oscanyan v. Winchester 
 Arms Co.) 36S 
 
 Penn v. Baltimore (Equity acts in per- 
 sonam. Jurisdiction) 275 
 
 Pennoyer v. Neff (Audi alteram partem. 
 "Due process of law." Service by 
 publication) 58 
 
 P. ex rel. Attorney General v. Brown 
 (Jurisdictional facts must affirmative- 
 ly appear. Conclusions of law are 
 nullities) 131 
 
 P. v. Hastings (A constitutional enu- 
 meration for the exercise of power is 
 exclusive. Expresfiio unius, etc. ; 
 P. v. Maynard) 144 
 
 P. v. Maynard (Judicial power vested 
 by a constitution is exclusive, P. v. 
 Hastings ; Marbury v. Madison) 143 
 
 P. v. McCumber (False and sham pleas 
 may be stricken, on motion) 110 
 
 P. v. Rogers (Intent; motive ;' malice ; 
 how proved. C. v. Rogers) 198 
 
 P. v. Seymour (Curative statutes ; 
 limitations of) 256 
 
 People's Bank v. Calhoun (Consent can 
 not confer jurisdiction) lZd 
 
 Peres v. Fernandez (Splitting causes of 
 action ; mandatory record how 
 viewed ; technical construction relat- 
 ing to) 2e 
 
 P. o. Turner (Construction of consti- 
 tutions must accord with natural 
 right) 252 
 
 Perry v. Porter (S. P. Bristow) 136a 
 
 Peter V. Compton (Frauds and per- 
 juries ; contracts not to be performed 
 in a year) 340 
 
 Phelps v. Racey (Possession of fruits 
 of crime — of game out of season ; 
 conclusive evidence of guilt ; limita- 
 
8 
 
 DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 tions of legislative authority. S. v. , 
 Thomas) * 191 
 
 Piper v. Pearson (Inferior statutory 
 tribunals ; Coram non judice proceed- 
 ings. Crepps v. Durden) . . 114 
 
 Planing Mill Co. v. Chicago (S. P. 
 Iverslie ; Mandatory and statutory 
 records) 2a* 
 
 Polhill v. Walter (Agent warrants his 
 authority. Parties liable on agent's 
 contracts) 411 
 
 Poor v. Carleton (Denials must be true, 
 full, positive and conscientious. Dick- 
 son v. Cole) 37 
 
 Price v. Torrington (Books of account; 
 ■when admissible in evidence) 213f 
 
 Provident Life and Trust Co. v. Mercer 
 County (Municipal bonds ; authority 
 of, must appear of record) 89 
 
 Pusey v. Pusey ( Specific delivery of 
 chattels ; when decreed in equity) . . . 276 
 
 Pym v. Campbell (Oral evidence inad- 
 missible to alter or vary a writing. 
 Exceptions) 52 
 
 R. B. v. Greer (Equity suffers not a 
 wrong without a remedy. Bills quia 
 timet) . . . .' 283 
 
 B. R. v. Stewart (Bills of exceptions; 
 prolixity should be avoided) 290a 
 
 Railway Company v. Lockwood (One 
 cannot contract for his gross negli- 
 gence, fraud or wanton acts) 352 
 
 Rann v. Hughes (All simple contracts 
 depend upon a consideration alleged 
 and proved) 312 
 
 Ransom v. Williams (Functions of the 
 "due process of law" record in con- 
 structive notice and to resist collateral 
 attack) 122 
 
 Raymond v. Johnson (Denials upon in- 
 formation and belief of what one is 
 presumed to know raises no issue. 
 Humphreys v. McCall) 39 
 
 Rees v. Berrington (Sureties; remedies 
 of, Abel v. Alexander) 334a 
 
 R. v. Ellis (System; several transac- 
 tions to show character of one. Strong 
 v. S. ; Res inter alios acta) 213b 
 
 R. v. Gibson (Province of court and 
 jury. S. v. Croteau) 149 
 
 R. v. Gibson (Pleas in abatement — 
 technical and important rules) 272 
 
 R. v. Goldsmith (Indictments must be 
 certain. Moore v. C. ; U. S. v. Cruik- 
 shank) 20 
 
 R. -v. Keyn (Crimes ; jurisdiction) . . . 171 
 
 R. v. Lewis (Crimes; jurisdiction).... 173 
 
 R. v. O'Brien (Former jeopardy ; con- 
 viction for a less offense will bar a 
 greater, when ; exceptions. C. v. 
 Roby) 75 
 
 R. v. Oxford (Sanity presumed until 
 contrary is shown. Continuity ; Mc- 
 
 Naghten's Case ; Marler v. S.) 200 
 
 R. v. Partridge (Possessions of fruits 
 
 of crime prima facie proof of guilt) 190 
 R. v. Riley (Answers to collateral ques- 
 tions are conclusive; important rule).2137i 
 
 Leading Oases — Table. No. 
 
 R. v. Rowlands (Indictments must be 
 certain. U. S. v. Cruikshank ; C. v. 
 Eastman ; S. v. Thurstin) 234 
 
 B. v. Vandercomb (Former jeopardy; 
 upon what it depends) 73 
 
 R. v. Vaux (Former jeopardy; essen- 
 tials) 72 
 
 R. v. Waters (Indictments ; certainty 
 required. When the word "said" in- 
 corporates a previous description) ... 71 
 
 R. v. Waverton (See R. v. Waters; U. 
 S. v. Cruikshank 70 
 
 R. v. Wheatley ( Indictment ; essentials ; 
 U. S. v. Cruikshank. Private and 
 public wrongs ; distinctions) 19 
 
 Reynolds v. Stockton (S. P. Munday) . 79a 
 
 Rice v. Shute (Joinder — non-joinder — 
 mis-joinder — of parties) 95 
 
 Richardson v. St. Joseph Iron Co. (Cor- 
 porate existence must be averred. 
 Harris v. Min. Co.) 230 
 
 Ricketson v. Richardson (Service by 
 publication. A statutory power con- 
 trary to the course of the common 
 law must be strictly pursued) 59 
 
 Rison v. Farr (Construction; statutes, 
 if constitutional, are valid. A plea 
 bad in part is bad in toto) 253 
 
 Bobinson v. Davison (Actus dei, etc., a 
 defense to a contract) 309 
 
 Bobinson Mining Co. v. Johnson (A 
 statement of a cause of action must 
 be technically certain) 16 
 
 Robinson v. Raley (Pleadings may be 
 made instruments of chicane) 45 
 
 Roden v. Helm (S. P. Campbell v. Por- 
 ter) 126 
 
 Rosen v. U. S. (Scandalous and obscene 
 matter cannot be permitted, although 
 material : conflict) 92 
 
 Roy v. Horseley (Terms of court. Tech- 
 nicalities of the law are the safe- 
 guards of the law) 2S8 
 
 Runkle v. U. S. (Records of inferior and 
 statutory tribunals must affirmatively 
 show each jurisdictional fact) 120 
 
 Rushton v. Aspinall (A wrong must be 
 described in a pleading and in all 
 cases alike. Omitted allegations not 
 supplied by aider) 5 
 
 Russell v. Mann (Statutory rights must 
 be strictly pleaded) 87 
 
 Russell v. Place (A pleading must de- 
 scribe a subject-matter to serve the 
 purposes of res adjudicata) 27 
 
 Rustin v. Merchants' etc. Co. (Best evi- 
 dence required. Iverslie v. Spaulding) 134 
 
 Ryall v. Rowles (Assignments; validity 
 of ; parties in actions to) 397 
 
 Sanborn v. Sanborn (A court must ac- 
 quire jurisdiction from the right 
 pleadings. Quod ab initio,, etc.) .... 61 
 
 Savacool v. Boughten ( Regular process 
 is the defense of executive officers) . 164 
 
 Seabury v. Grosvenor (Equity ; injunc- 
 tion will not aid one not standing 
 
 fair) 281 
 
 Seattle National Bank v. Jones (De- 
 
DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 nials ; inconsistent defenses. Dickson 
 
 v. Cole) 36 
 
 Sherman v. Kitsmiller (Certainty es- 
 sential for a contract) 305 
 
 Shindler v. Houston (Sales; delivery of 
 
 possession ; what is) 407 
 
 Shuey v. U. S. (Offerer may retract 
 offer of contract at any time before 
 
 performance) 323 
 
 Shutte v. Thompson (Incompetent evi- 
 dence may be objected to generally. 
 
 Miller v. Dill) 291 
 
 Six Carpenter's Case (Trespassers ab 
 
 initio; who are, in procedure) 165 
 
 Skeate v. Beale (Answers must be suffi- 
 cient. J'Anson v. Stuart. Green v. 
 
 Palmer) 82 
 
 Sloman v. Walter (See Kemble v. Far- 
 
 ren ; Peachy v. Somerset) 393 
 
 Smith v. Hodson (Election of remedies ; 
 
 important rules) 156 
 
 Smith v. Marrable (Lessee of furnished 
 apartments ; Caveat emptor does not 
 
 apply to) 382 
 
 Smith v. Wilson (Oral evidence to prove 
 
 custom — usage) 401 
 
 Soutier v. Kellerman (See Smith v. Wil- 
 son) 402 
 
 Spraigue v. Thompson (A statute may 
 be void in part and valid in part. 
 
 See James v. Bowman) 236 
 
 Spring Co. v. Knowlton (Illegal con- 
 tracts ; In pari defenses) 366 
 
 Springer v. Shavender (Consent will not 
 confer jurisdiction of subject-matter 
 pleadings essential ; jurisdiction of 
 person and subject-matter essential) 24 
 Starbuck v. Murray (A record must be 
 founded upon bona fide proceedings, 
 not criminal proceedings, to be coram 
 
 judice. Ferguson) 263 
 
 S. v. Baughman ("Due process of law"; 
 what is. Division of state power. 
 Fictitious causes do not bind. Graver 
 v. Faurot ; Wonderly v. Lafayette 
 
 County) 268 
 
 S. v. Beach (Statutes may prescribe 
 what is prima facie evidence of guilt. 
 Due process of law. S. v. Thomas) 258 
 S. v. Bolden (Fundamental principles 
 are interpreted into statutes. Bates 
 v. Bulkley ; C. v. Hess ; Oakley v. 
 Aspinwall ; Indianapolis, etc. R. R. v. 
 
 Horst) 216 
 
 S. v. Conkling (Courts will not pass on 
 dead issues. California v. San Pablo 
 
 R. R.) 109 
 
 S. v. Conwell {Dies dominicus, etc. ; 
 
 construction of statute) 174 
 
 S. v. Croteau (Province of court and 
 
 jury in criminal cases) 271 
 
 S. v. Marler (Burden of proof in homi- 
 cide cases where insanity is the de- 
 fense) 188 
 
 S. v. Thomas (Statutes cannot declare 
 what is conclusive evidence. S. v. 
 Beach) 257 
 
 Leading Cases — Table. no. 
 
 S. v. Thurstin (Indictments ; essentials. 
 
 U. S. v. Cruikshank) 23 
 
 S. v. Townley (Inherent powers of 
 
 courts) 225a 
 
 Stetson v. Kempton (Liability of officers, 
 for ultra vires acts. Lange v. Bene- 
 dict ; Savacool v. Boughten) 163 
 
 Stilk v. Myrick (One already bound to 
 do a thing is not wronged by a further 
 promise to induce that performance) 313 
 Stokes v. Saltonstall (Res ipsa loquitur. 
 
 Kearney v. London R. R.) 207 
 
 Stokes v. State (System) . 213a 
 
 Stubbings v. Bvanston (a placitum es- 
 sential) 49 
 
 Sturdivant v. Hull (Descriptio persona; 
 words. When words of addition are 
 
 surplusage) 410 
 
 Sturges v. Burton (A cause of action 
 should not be repeated in fictitious 
 
 statements) ill 
 
 Taintor v. Prendergast (Agency ; undis- 
 closed principal ; parties. Thomson v. 
 
 Davenport) 344 
 
 Tarble's Case (Appellate power of the 
 federal supreme court ; the record es- 
 sential for the exercise of its powers. 
 Justification defenses. M'Culloch v. 
 
 Maryland) 247 
 
 Tarling v. Baxter (When title passes by 
 
 sale. Gibbs v. Benjamin) 404 
 
 Tayloe v. Merchants' Fire Insurance 
 Co. (Contracts by letter. Adams v. 
 
 Lindsell) 329 
 
 Taylor v. Caldwell (Actus dei, etc. ; 
 when a defense to contracts. Robin- 
 son v. Davison ) 310 
 
 Taylor v. Porter (Due process of law ; 
 
 definition) 219a 
 
 Tempest v. Fitzgerald (Frauds and per- 
 juries ; sales ; possession essential to 
 pass title. Shindler v. ■Houston) ... . 408 
 Terry v. Anderson ( Vested rights ; de- 
 fense accrui-ng under the statute of 
 limitations cannot be impaired) .... 240 
 Thatcher v. Powell (Condemnation and' 
 sequestration ; proceedings proceed 
 upon facts shown from record — con- 
 tinuity — constructive notice. Ransom 
 
 v. Williams) 117 
 
 Thomas v. Board (Allegations essen- 
 tial and must be certain) 10a 
 
 Thomas v. Mackey (Allegata et probata 
 must correspond ; courts must have 
 authority to proceed and hear causes, 
 take testimony and enter judgments. 
 
 Shutte v. Thompson) 15 
 
 Thomson v. Davenport (Agency ; Dis- 
 closed and undisclosed principals ; 
 contracts ; parties. . Who may sue and 
 
 be sued) 342 
 
 Thornborow v. Whitacre (Consideration ; 
 adequacy of to constitute a wronged 
 person. Bainbridge v. Firmstone) . . 333 
 Tilton v. R. R. (Taxation; assessments 
 must be certain. Lawrence v. Fast ; 
 P. v. Hastings ; Marx v. Hanthorn) . . 133 
 Tool Co. (Providence) v. Norris (Illegal 
 
10 
 
 DATUM POSTS. 
 
 Leading Cases — Table. no. 
 
 contracts ; In pari defenses. Holman 
 
 v. Johnson) 365 
 
 Trevivan v. Lawrence (Estoppel of 
 record — res adjudicate/,; the last es- 
 toppel binds) 78 
 
 Trist v. Child (Construction ; morals 
 interpreted into compacts. Oakley v. 
 
 Aspinwall ; P. v. Turner) 214 
 
 V. 8. v. Cruikshank (Due process of 
 law ; indictments ; certainty ; pre- 
 sumption against pleader. R. v. 
 Wheatley ; Moore v. C. ; Huntsman 
 v. S. ; Dovaston v. Payne. Indict- 
 ments under statute must be ex- 
 panded. Cf. C. v. Bean) 232 
 
 V. S, v. Gooding (Evidence ; declaration 
 of agents ; res gestw; indictments ; 
 sufficient to follow language of stat- 
 ute) 202 
 
 V. 8. v. King (Recent possession of the 
 fruits of crime, when sufficient to 
 convict. R. v. Partridge) 192 
 
 U. 8. v. Mills (Indictment; certainty es- 
 sential. U. S. v. Cruikshank) 235 
 
 V. S. v. Peres (Indictments; certainty 
 required for protection under former 
 jeopardy. R. v. Vandercomb ; R. v. 
 Vaux) 69 
 
 Vadakin i\ Soper (Omission of jurisdic- 
 tional facts is not supplied by con- 
 struction. Van Leuven v. Lyke) .... 11 
 
 Vaiden v. C. (Bills of exceptions; pro- 
 lixity to be avoided ; facts may be 
 certified. R. R. v. Stewart) 155 
 
 Van Cleaf v. Burns (Res adjudicata 
 depends upon the "due process of 
 law" record) 17 
 
 Van Leuven v. Lyke (Omitted allega- 
 tions are not waived by appeal and 
 may be assigned for error for the 
 first time in the appellate court. 
 Campbell v. Porter) 14 
 
 Van Slyke v. Trempealeau County Ins. 
 Co. (Judicial power cannot be dele- 
 gated. Judge cannot permit another 
 to sit for him) 177 
 
 Virginia Coupon Cases (Constitutions 
 are the supreme law) 285a 
 
 Vogt v. Schienebeck (Parties contract 
 for themselves) 324a 
 
 Von Hoffman v. Quincy (Vested rights; 
 impairment of. Bronson v. Kinzie ; 
 Terry v. Anderson) 239 
 
 Voorhees v. Bank of U. S. (Presumption 
 of regularity. Omnia prcesumuntur 
 rite, etc. Ransom v. Williams ; Wil- 
 liamson v. Berry) 119 
 
 Wabash R. R. v. Friedman (Allegata et 
 probata must correspond. Bristow v. 
 Wright) .* 137 
 
 Waco Water and Light Co. v. Waco 
 (Certificate of doubt; practice relat- 
 ing to) 300 
 
 Wagner v. Gibbs (Evidence ; record of 
 criminal conviction ; when admissible 
 to show right to exemplary damages) 290 
 
 Wain v. Warlters (Frauds and perjuries. 
 
 Leading Cases — Table. no. 
 
 Memorandum, when sufficient. Con- 
 sideration must be expressed) 335 
 
 Walden v. Bodley (Amendments; lim- 
 itations of the right to amend) 139 
 
 Walker v. Turner (Jurisdictional facts 
 must affirmatively appear upon record 
 of inferior tribunal. Crepps v. Dur- 
 den ; Kempe's Lessee v, Kennedy ; 
 Galpin v. Page) 118 
 
 Warren v. Slade ( Computation of time ; 
 
 Important rules) 243 
 
 Watkins v. 8. ("Due process of law" 
 requires bona fide parties ; one can- 
 not prosecute himself) 269 
 
 Weaver v. Toney (Audi alteram partem; 
 Judges cannot choose their cases ; 
 usurpation vitiates) 67 
 
 Welborn v. Weaver (Delivery, accept- 
 ance of deeds ; what is a sufficient. 
 Acceptance of deeds) 388 
 
 Weltmer v. Bishop (A cause of action 
 must" be real, and defined) 268a 
 
 Wheadon v. Olds (Mistake in contract ; 
 relief from) 349 
 
 White v. Bluett (Consideration must be 
 parted with to support a promise, to 
 constitute one a wronged party) Ex 
 nudo 317 
 
 White v. Corlies (Contracts must be 
 consummated before they are obliga- 
 tory) 303 
 
 White v. Fort (Merger of remedies) .... 175 
 
 White v. Lyons (Prayer ; any is suffi- 
 cient ; a general one is good) 140 
 
 White v. Wagar (Search warrants; re- 
 quirements of, strict. Construction ; 
 Noscitur a soqiis) 130 
 
 Whitney v, Chicago & N. W. R. R. 
 (Several statements of a claim for re- 
 covery under codes ; when per- 
 mitted) H2 
 
 Wiebold v. Herman ("Due process of 
 law" requires parties actor and reus; 
 the names of these must appear in 
 full for essential certainty. Williams 
 v. Eggleston) 9S 
 
 Wigglesworth v. Dallison (Oral evidence 
 admissible to prove usage, custom ; 
 when) 399 
 
 Wilkerson -v. Utah (Cruel and unusual 
 punishments ; what are) 221 
 
 Williams v. Bankhead (Parties; who are 
 essential, "Due process of law" re- 
 quires) 93 
 
 Williams v. Carwardine (Contracts; re- 
 wards ; obligations from) 332 
 
 Williams v. Eggleston (A wronged party 
 is essential for a suit : and he must 
 be described. Wiebold v. Herman) . 94 
 
 Williams v. Hingham Turnpike Co. 
 (Statutory rights must be pleaded 
 with certainty. U. S. v. Cruikshank ; 
 Bartlett v. Crozier) 7 
 
 Williams v. Peyton (Record must evince 
 jurisdictional facts to support con- 
 structive notice, and to resist col- 
 lateral attack — be coram judice — 
 Ransom v. Williams) ng, 
 
DATUM POSTS. 
 
 11 
 
 Leading Cases — Table. no. 
 
 Williamson v. Berry (The authority of 
 a court to enter a judgment is never 
 foreclosed ; it is always open. Horan 
 v. Wahrenberger) 65 
 
 Wilson v. Brett (Bailments ; care and 
 diligence required. Coggs v. Ber- 
 nard) 351 
 
 Wilson v. V. S. (One seeking a review 
 in an appellate court is entitled to a 
 statement of all said and done in the 
 trial court, in a bill of exceptions) . . 154 
 
 Windsor v. McVeigh ( Audi alteram par- 
 tem. Arbitrariness and a denial of 
 fundamental justice is a ground of re- 
 versal upon the mandatory record) . . 1 
 
 Wonderly v. Lafayette County (Judg- 
 ments on false and sham pleadings 
 will be set aside. Graver v. Faurot ; 
 
 Leading Cases — Table. no. 
 
 Barr v. Post ; Debile fundamentum, 
 etc.) 102 
 
 Woollam v. liearn (Oral evidence ; when 
 admissible. Pym v. Campbell) 5a 
 
 Work v. S. (The word "jury" in u con- 
 stitution means twelve men) 242 
 
 Worrall v. Munn (Escrow deeds ; re- 
 quirements) 390 
 
 Wright v. Griffey (.Res adjudicata must 
 be pleaded ; estoppels must be 
 pleaded) 28 
 
 Wright v. Tatham (Evidence. The 
 right to cross-examine a witness is a. 
 part of "due process of law," is a 
 fundamental right. Murray 201 
 
 Zaleski v. Clark (Uncertain agreement 
 is no contract; certainty essential). 306 
 
 TABLE OF THE FUNDAMENTAL MAXIMS 
 
 The following maxims are among the most important; they express leading 
 principles, and often parts of the prescriptive constitution, which is the 
 "metwand" of construction. (Hughes' Proc. 204.) Around the maxims, Frus- 
 tra probatur quod probatum non relevat, Verba fortius accipiuntur contra 
 proferentem, and De non apparentibus et non existentibus eadem est ratio, 
 the judicial power of a government of limited and defined authority can be 
 established and conducted. Codes and statutes that oppose these maxims must 
 be construed away in a constitutionalism. Those maxims are important and 
 reliable guides. They are illustrated in many cases; of these are Bristow: 
 135; Dovaston: 217; Rushton: 5. Discussions of these in the last generation 
 are analogous to the discussions of Shelley's Ca'se of which Kent makes very 
 appropriate mention. See Dovaston. 
 
 Many digests under the title Maxims point to citations of them e. g., 
 Pattison's Missouri Digest, also the digest of the L. R. A. Reports. 
 
 Accessorium non ducit sed sequitur suum 
 
 principale: The incident shall pass by 
 
 a grant of the principal, but not the 
 
 principal by a grant of the incident. 
 
 M'Culloch : 247 ; Logan : 249. 
 Actore non probante reus absolvitur: If the 
 
 plaintiff does not prove his case, the de- 
 fendant is absolved. Bristow : 135 ; 
 
 Bonnell : 185. 
 Actus curies neminem gravabit: An act of 
 
 the Court shall prejudice no one. Cum- 
 ber : 311 ; Boni Judicis. 
 Actus dei nemini facit injuriam: An act of 
 
 God shall be so construed as to affect 
 
 no one injuriously. Cutter : 308. 
 Actus non facit reum nisi mens sit rea: 
 
 Act and intent must concur to constitute 
 
 crime. Cruikshank : 232 ; McNaghten : 
 
 195. 
 Ad proximum antecedentem fiat relatio nisi 
 
 impediatur sententia: A relative is to be 
 
 referred to the next antecedent, unless the 
 
 sense would be impaired. R. v. Waters: 
 
 71 ; R. v. Waverton : 70. 
 Ad qucestionem facti non respondent judices; 
 
 ad qucestionem legis non respondent jurat- 
 ores : The judges do not answer to ques- 
 tions of fact ; the jury do not answer to 
 questions of law. S. v. Croteau : 271. 
 
 Allegans contraria non est audiendus : He 
 is not to be heard who alleges things 
 contradictory to each other. Dickson : 
 34 ; Pain : 107 ; Baily : 44. 
 
 Ambiguitas- verboram latens veriflcatione 
 suppletur ; nam quod ex facto oritur am- 
 biguum veriflcatione facti tollitur : Latent 
 ambiguity may be supplied by evidence ; 
 for an ambiguity which arises by proof 
 of an extrinsic fact may, in the same 
 manner, be removed. Pym : 52 ; Woollam t 
 53. 
 
 Assignatus utitur jure auctoris : An assignee 
 is clothed with the rights of his principal 
 or of the assignor. Lickbarrow : 394 ; 
 Brice : 398. 
 
 Audi alteram partem: The law hears before 
 it decides. Windsor : 1 ; Murray : 219 ; 
 Springer : 24 ; Taylor : 219a ; Pennoyer : 
 58 ; Williamson : 65. 
 
 Boni judicis est ampliare jurisdictionem : 
 
12 
 
 DATUM POSTS. 
 
 Leading Cases — Principles, 
 
 It is the duty of a court when necessary 
 to amplify the limits of its jurisdiction. 
 Penn : 275. Actus curiw. 
 
 Caveat emptor : Let a purchaser beware. 
 Chandelor: 374-384; "Windsor: 1. Sim- 
 plex commendatio. 
 
 Cerium est quod certum reddi potest: That 
 is certain which can be made certain. 
 R. v. Waverton : 70 ; R. v. Waters : 71 ; 
 Sturdivant: 310. 
 
 Cessante ratione legis cessat ipsa lex: 
 When the reason of the law ceases, so 
 does the law itself. Indianapolis R. R. : 
 223 ; Bates : 225. 
 
 Communis error facit jus : A common error 
 makes law (What was at first illegal, 
 being repeated many times, is presumed 
 to have acquired the force of usage ; and 
 then it would be wrong to depart from 
 it). Kelly: 285; Maher : 255. 
 
 Concordare leges legions est optimus inter- 
 pretandi modus: To make laws agree with 
 laws is the best mode of interpreting 
 them. Bates : 225 ; Indianapolis R. R. : 
 223 ; Rushton : 5. 
 
 Consensus tollit errorem: The acquiescence 
 of a party who might take advantage of 
 an error obviates its effect. Montgomery : 
 292, 290a-299. 
 
 Contemporanea expositio est optima et for- 
 tissimo in lege : A contemporaneous ex- 
 position is the best and most powerful in 
 the law. Maher : 255 ; Harper : 218 ; 
 Noble : 251 ; Cohens : 244. 
 
 Cujus est instituere ejus est abrogare. He 
 who con institute can also abrogate. 
 Cruikshank: 232; Lange : 159. 
 
 Debile fundamentum fallit opus: Where 
 the foundation fails, all goes to the 
 ground. Rushton : 5 ; R. v. Wheatley : 
 19 ; Windsor : 1 ; Cruikshank : 232. 
 
 De non apparent ibus et non existentibus 
 eadem est ratio : A court can not take 
 notice of any fact not judicially made to 
 appear. Cruikshank : 232 ; Rushton : 5 ; 
 Wheatley: 19; Hannah: 128; William- 
 son : 65, 231-234. 
 
 Pies dominicus non est juridicus: Days of 
 the Lord are not days for juridical work. 
 
 Equity attaching for one purpose attaches 
 for all. Brugger: 161; Ferguson: 264. 
 
 Ex dolo malo non oritur actio : A right of 
 action cannot arise out of fraud. Need- 
 ham : 261; Wonderly: 102; Graver: 103; 
 Dunlap : 108 ; Ferguson : 264. 
 
 Exccutio juris non habet injuriam: The 
 law will not in its executive capacity work 
 a wrong. Dunlap : 108. 
 
 Ex facto oritur jus: Out of the facts arises 
 the law. Graver : 103. 
 
 Ex nudo pacto non oritur actio : No cause of 
 action arises from a mere promise. Lamp- 
 leigh : 301 ; Bainbridge : 332. 
 
 Ex post facto laws: Calder : 237. 
 
 Expressio eorum quo?- tacite insunt nihil ope- 
 ratur : The expression of those things 
 which are tacitly implied operates nothing. 
 
 Leading Oases — Principles. 
 
 M'Culloch: 147; S. v. Townley : 225a; 
 Logan : 249. 
 
 Expressio unius est cxclusio alterius : The 
 express mention of one thing implies the 
 exclusion of another. Marbury : 142 ; P. 
 v. Maynard: 143; S. v. Conwell : 174; 
 Bobel ; 259 ; Abel : 334. 
 
 Ex uno disces omnes: From one thing you 
 can discern all. Strong v. S. : 213a. 
 
 Falsa demonstratio non nocet: A false 
 description does not vitiate. Bloom : 2C6. 
 
 Falgus in uno, falsus in omnibus : False in 
 one thing, false in all. Pain : 107 ; 
 Dickson: 34; Graver: 103. 
 
 Favorabiliores rei potius quam adores ha- 
 bentur : Defendants are rather to be 
 favored than plaintiffs. See Actore; Sem- 
 per; In cequali melior; In pari; Verba 
 fortius; De non apparentibus. 
 
 Frustra probatur quod probatum non rele- 
 vat : It is vain to prove what is not 
 alleged. Windsor : 1 ; Campbell : 2 ; C. 
 v. Roby: 74, 74a; Borkenhagen (Code): 
 81 ; Green : 90 ; J'Anson : 91. De non 
 apparentibus ; Verba fortius. These maxims 
 are basic principles of the prescriptive 
 constitution. Cases 1-100 are burdened 
 with illustrations of their application. 
 
 Ignorantia legis neminem excusat : Igno- 
 rance of law is no excuse. Windsor: 1; 
 Cruikshank : 232 ; Mallinckrodt : 12a. 
 
 In wquali jure melior est conditio possiden- 
 tis : When the parties have equal rights, 
 the condition of the possessor is better. 
 Armory : 180 ; Lickbarrow : 394. 
 
 In jure non remota causa, sed proxima, 
 spectatur : In law, the proximate and not 
 the remote cause is to be looked to. Scott 
 v. Shepherd ; Gilson v. Delaware Canal. 
 
 In pari delicto potior est conditio defenden- 
 tis (et possidentis) : Where both parties 
 are equally in fault, the condition of the 
 defendant is preferable. Holman : 263 ; 
 Oscanyan : 41. 
 
 In prcesentia majoris cessat potentia minoris: 
 In the presence of the major the power 
 of the minor ceases. Oakley: 222; Trist: 
 214 ; Indianapolis R. R. : 223 ; Kelly : 
 285 ; Taylor : 219a. 
 
 Interest reipublicw ut sit finis Utium: It 
 concerns the public that there be an end 
 to litigation. Kingston's Case: 76. 
 
 Leges posteriores priores contrarias abro- 
 gant: When the provisions of a later stat- 
 ute are opposed to those of an earlier, the 
 earlier is considered as repealed. Dash: 
 237a. 
 
 Lex non exacte deflnit sed arbitrio boni viri 
 permittit: The law does not define ex- 
 actly but trusts to the judgment of a 
 wise and good man. Indianapolis R. R. . 
 223 ; Cases. 
 
 Malum non prwsumitur: Evil is not pre- 
 sumed. Nemo prcesumitur. Bonnell : 
 185. Actore; Semper. 
 
 Melius petere fo'ntes quam sectari rivulos: 
 It is better to seek the fountains than to 
 wander down the rivulets. Regula. 
 
DATUM POSTS. 
 
 13 
 
 Leading Cases — Principles. 
 
 Modus et conventio vincunt legem : The 
 form of agreement and the convention 
 of the parties overrule the law, Kemble : 
 391; Robinson: 309. 
 
 Multitudo imperitorum perdit curiam: A 
 multitude of ignorant practitioners de- 
 stroys a court. C. v. Roby : 74 ; J'Anson : 
 91. 
 
 Neccssitas inducit privilegium quoad jura 
 privata: Necessity privileges one acting 
 under its influence. Langabier : 174a. 
 
 Nemo dat qui non habet : No" one can give 
 who does not possess. Lickbarrow : 294. 
 Assignatus; Caveat. 
 
 Nemo debet bis vexari, si constat curies quod 
 sit pro una et eadem causa: No one 
 ought to be twice punished, if it appear 
 to the court that it is for one and the 
 same cause. Kingston's Case : No. 76 ; 
 Outram : 25 ; Cromwell : 26. 
 
 Nemo debet esse judex in propria sua causa : 
 No one should be judge in his own cause. 
 Dimes : 176. 
 
 Nemo prwsumitur malus : No one is pre- 
 sumed to be bad. See Malum; Adore; 
 Semper. 
 
 Nemo tenetur seipsum accusare : No one is 
 bound to accuse himself. Counselman : 
 178. 
 
 Nihil possumus contra veritatem: We can 
 do nothing against truth. Graver : 103 ; 
 Thou shalt not bear false witness. 
 
 Nihil tarn conveniens est naturali cequitati 
 quam unumquodque dissolvi eo legamine 
 quo ligatum est: Nothing is so consonant 
 to natural equity as th#t each thing should 
 be dissolved by the same means by which 
 it was bound. Shuey v. U. S. : 319. A 
 statute is necessary to repeal a statute. 
 Authority under seal is necessary to 
 make a deed is a leading rule of agency. 
 
 Non hwc in fcedera veni : I did not come 
 into this compact, Boston : 320 ; Abel : 
 Rees : 334. 
 
 Non potest adduci exceptio ejusdem rei cujus 
 petitur dissolutio : A plea of the same 
 matter, the dissolution of which is sought 
 by the action, cannot be brought forward. 
 Starbuck: 263; Mills: 57. 
 
 Noscitur a sociis : A thing is known by its 
 companions. Burks : 217a; White : 130. 
 
 Nova constitutio futurio formam imponere 
 debet non prwteritis : A statute ought to 
 be prospective not retrospective in its 
 operation. Calder : 237. 
 
 Nullum tempus occurrit regi : Lapse of time 
 will not bar the rights of the crown 
 (state). Roy n'est; Barron: 241. 
 
 Nullus commodum capere potest de injuria 
 sua propria : No one can take advan- 
 tage of his own wrong. Dickson : 34 ; 
 Graver : 103 ; Cutter : 308 ; Adams : 326. 
 See Allegans. He who seeks equity. 
 
 Omne majus continet in se minus : The 
 greater contains in itself the less. Kraner : 
 299. 
 
 Omnia prwsumuntur contra spoliatorem: 
 
 Leading Cases — Principles. 
 
 All things are presumed against »■ wrong- 
 doer. Armory : 180. 
 
 Omnia prwsumuntur rite ct solemniter esse 
 acta: All things are presumed to have 
 been rightly and regularly done. Crepps : 
 113 ; Hannah : 128 ; Cruikshank : 232 ; 
 Ferguson : 264 ; Harvey : 123. 
 
 Omnis ratihabitio retrotrahitur et mandato 
 wquiparatur : A subsequent ratification has 
 a retrospective effect and is equivalent to 
 a prior command. 
 
 One is liable for the natural, direct and 
 probable consequences of his act. Lick- 
 barrow : 294 ; C. v. York : 197 ; Qui 
 primum, etc. 
 
 Optimus interjjres rerum usus : Usage (or 
 custom) is the best interpreter of things. 
 Wigglesworth : 399 ; 400. Contemporanea. 
 
 Origo rei inspici debet : The origin of a 
 thing ought to be inquired into. This is 
 true of the mandatory and statutory rec- 
 ords. Melius, etc. Regula, etc, C. v. 
 Hess : 215 ; Cases. Verba intentione. 
 
 Prwsentia corporis tollit error em nominis, 
 et Veritas nominis tollit errbrem demon- 
 strationis: The presence of the body cures 
 the error of the name ; the truth of the 
 name cures an error of the description. 
 Falsa; Res ipsa loquitur. 
 
 Prwsumatur pro justitia sententiw : The 
 justice of a sentence should be presumed. 
 Windsor : 1 ; Clem. : 2 ; L. C. : 290a-299. 
 
 Probatis extremis prcBsumuntur media : The 
 extremes being proved, the intermediate 
 proceedings are presumed. Citizens' Ry. 
 186. 
 
 Quicquid solvitur, solvetur secundum modum 
 solventis: Whatever is paid is to be 
 applied according to the intention of the 
 payer. Field v. Holland : 387. 
 
 Qui h&ret in litera, hwret in cortice : He who 
 adheres to the letter adheres to the bark. 
 Indianapolis R. R. : 232. 
 
 Quilibet potest renunciare juri pro se indue- 
 to : Anyone may renounce a law intro- 
 duced for his own benefit. J'Anson : 91 ; 
 McKyring : 33 ; Field v. Mayor : 84 ; 
 Shutte : 291. 
 
 Qui primum peccat ille facit rixam: He who 
 is guilty of the first offense is guilty of 
 the whole strife. Stetson : 163 ; C. v. 
 York : 197 ; Lickbarrow : 394 ; Polhill : 
 411. 
 
 Qui prior est tempore, potior est jure : He 
 who is first, or before, in time, is stronger 
 in right. Freeman : 287. 
 
 Qui sentit commodum, sentire debet et onus : 
 He who derives a benefit from a thing 
 ought to bear the disadvantages attending 
 it. Bauerman : 48. 
 
 Quod ab initio non valet, tractu temporis 
 non convalescit : What is not good in the 
 beginning, can not he rendered good by 
 time. Sanborn : 61 ; Boyd : 63 ; Shutte : 
 291. 
 
 Quod est inconveniens, aut contra rationem 
 non permissum est in lege: What is in- 
 convenient or contrary to reason is not 
 allowed in law. See Cessante. 
 
14 
 
 DATUM POSTS. 
 
 Leading Cases — Principles. 
 
 Quod lex non vetat permittit : What the 
 law does not forbid it permits. Cruik- 
 shank: 232. 
 
 Quoties in verbis nulla est ambiguitas ibi 
 nulla expositio contra verba fienda est: 
 "When there is no ambiguity in the -words, 
 then no exposition contrary to the words 
 is to be made. Harper : 218. 
 
 Regula pro lege, si deficit lex : Where the 
 law is deficient, the maxim rules. C. v. 
 Hess: 215. 
 Res inter alios acta alteri nocere non debet : 
 A thing done between strangers ought not 
 to injure those who are not parties to 
 it ; or, a transaction between two ought 
 not to operate to the disadvantage of a 
 third. Higham: 213c; Price.- 213/: 
 Strong v. S. : 213a. 
 Res ipsa loquitur: The thing speaks for it- 
 self. Kearney: 211. 
 Rex non potest pecarre: The King (state) 
 can do no wrong. Hunsaker : 259 ; Lange ; 
 159. 
 Roy n'est lie per ascun statute, si il ne soit 
 expressement nosme : The King (state) is 
 not bound by a statute unless he is named 
 to be bound. Barron : 241. 
 Salus populi suprema lex: That regard be 
 had for the public welfare is the highest 
 law. Kingston's Case : 76 ; Cruikshank : 
 232; Trist: 214. 
 Semper prcesumitur pro negante: The pre- 
 sumption is always in favor of him who 
 denies. See Adore, Favorabiliores. Bon- 
 nell: 185. 
 Simplex commendatio non obligat : Simple 
 commendation is no obligation. See Ca- 
 veat. Pasley : 375. 
 Summa ratio est gum pro religione facit: 
 Where the laws of God and of man come 
 in conflict the former shall be preferred 
 Trist: 214. 
 
 Leading Cases — Principles. 
 
 Surplusagium non nocet : Surplusage does 
 
 not vitiate. See Utile. 
 Vbi jus, ibi remedium: There is no wrong 
 
 without a remedy. Ashby : 273. 
 Utile per inutile non vitiatur : What is use- 
 ful is not vitiated by the useless. Kraner : 
 299 ; Dickson : 34 ; Bradbury : 35 ; Cohens • 
 244. 
 Verba (chartarum) fortius accipiuntur con- 
 tra proferentem: Every presumption is 
 against a composer. Dovaston : 217 ; 
 Cruikshank : 232. (This maxim applies to 
 all systems. Recognition of this fact is 
 most important. It is denied in many 
 quarters. See notes, Lampleigh : 301.) 
 Verba generalia restringuntur ad habilitatem 
 rei vel personam : General words must be 
 confined or restrained to the nature of the 
 subject or the aptitude of the person. Bris- 
 tow: 135; Martin: 246; M'Culloch : 147- 
 White : 140 ; Dickson : 34. 
 Verba intentione detent inservire : Words are 
 to be governed by the intention. Harper: 
 218 ; Indianapolis R. R. : 223 ; Rushton : 5. 
 Verba relata hoc maxime operantur per refer- 
 ent lain ut in eis inesse videntur : Words to 
 which reference is made in an instrument 
 have the same effect and operation as if 
 they were inserted in the clause referring 
 to them. Galpin : 63 ; R. v. Waters : 70 ; 
 R. v. Waverton : 71 ; Cohens : 244 ; S. v 
 Moore : 222a. 
 Volenti non fit injuria: He who invites his 
 own injury shall not be heard to complain 
 of it. Stokes : 207 ; Seabury : 281 ; Ed- 
 wards: 282; Maclay: 327. Nullus com- 
 modum, etc. 
 What ought to be ef record must be proved 
 by record and by the right record. Iver- 
 slie: 46. Windsor: 1-46. 
 Where one of two equally innocent persons 
 must suffer from the fraud of a third he 
 who first trusted must first suffer. Lick- 
 barrow : 394. Volenti. 
 
DATUM POSTS 
 
 LEADING AND ILLUSTRATIVE CASES 
 
 1. WINDSOR V. McVEIGH (1876), 93 
 U. S. 274 (23 L. ed. 914), 4 Cent. L. J. 68 ; 
 Keele, 118 Mo. Ap. 262-280 (quoting). 
 Hughes' Proc, §§ 54-70 ; Brown, Jur- 
 isdic, Freem. Judg., q.v., Van Fleet, Coll. 
 Att. 386, 62 Ark. 444, 54 Am. St. 302, 39 
 L. R. A. 449, Foster, Fed. Prac, stated, 
 Van Zile, PI. 286 ; Yentzer, 10 Colo. 63 ; 
 Russell v. Shurtleff; Hovey, 167 U. S., 
 409, 42 Li. ed., 215 : cases (due process 
 of law signifies a right to be heard in 
 one's defense. 145 N. Y. 126, 39 L. R. 
 A. 449); Davidson; Wilson, 169 U. S. 
 586, 42 Lf. ed. 865, n. : cases ; 65 Am. 
 St. 147, n. See Pettibone, 203 U. S. 192, post. 
 
 Cited : pp. 5, 6, 9-11, 15, 17, 22, 23, 29, 30 ; 
 §§ 1-13, 19-38, 44, 49, 51-77, 79, 87, 
 88-92, 98-101, 104, 109, 110, 112, 121- 
 124, 129, 133, 150-152, 156, 165-169a, 
 173-178, 186, 186a, 204, 205, 216, 240, 
 268, 278, 304, 352, Hughes' Proc. 
 
 Cited, §§ 5, 33, 46, 61, 63, 70, 80, 88- 
 89, 93, 95, 104, 108, 115, 118, 124, 128, 
 132, 152, 157, 159, 164, 169, 170, 177, 
 186, ]87, 192, 201, 201a, 203, 204, 214, 
 218, 220, 225, 237-239, 245, 248, 263, 
 267, 268, 296, 311, Gr. & Rud. 
 
 Windsor stated. Coram judice proceed- 
 ings essential to sustain a deed founded 
 upon judicial pi'oceedings. Windsor 
 claimed McVeigh's land under a deed 
 made by a United States marshal, upon 
 the authority of a decree entered under 
 the Confiscation Act of 1862 (a civil war 
 measure, providing that the lands of reb- 
 els in arms might be sequestered by the 
 government). McVeigh was a soldier in 
 the army of Northern Virginia resisting 
 the armed authority of the federal gov- 
 ernment. Under that' act his land was 
 seized, and monition — summons — was pub- 
 lished requiring him to appear and de- 
 fend, which he did by attorney, who in 
 an answer set forth the above facts, and 
 which were all that were necessary to 
 sustain a decree, and for this it should 
 not have been stricken from the files, 
 as was done upon a motion. To this Mc- 
 Veigh's attorney made no objection and 
 took no exception, but withdrew from a 
 court that struck such an answer from the 
 files, which fact properly appeared from 
 the mandatory record. Consequently no 
 objection or exception was made o<r re- 
 served, and no bill of exceptions was filed. 
 Upon that record a decree was en- 
 tered ; the invalidity of this decree was 
 urged because of the above fact so appear- 
 ing ■ and that thereon Windsor bought 
 
 15 
 
 Leading Cases. — 1. Windsor. 
 
 caveat emptor — charged with a knowledge 
 — that the court after summoning McV. to 
 appear and defend, afterward struck his 
 answer from the files, Instead of adjudg- 
 ing it insufficient and offering an op- 
 portunity for an application for leave to 
 amend. The latter while a matter of dis- 
 cretion with the court was claimed as a 
 substantial right, which could not be dis- 
 posed of as a trifle (De minimis). And 
 that, upon these grounds, the proceedings 
 were coram non judice. Justice Field 
 spoke for the court, which held, that the 
 decree was void for the above reasons, 
 and that consequently the deed was of no 
 effect and that the proceedings were open 
 to collateral attack. 
 
 Justices Hunt, Miller and Bradley dis- 
 senting. See Cooper v. Reynolds ; Due 
 Process of Law ; Watveb : cases. 
 
 Windsor discusses principles of the great- 
 est consequence, relating to governi'ient, 
 jurisdiction, procedure, and fundamental 
 rights. It is the ablest discussion of a 
 leading principle from "the manner of the 
 Romans" and of the Normans which prin- 
 ciple is often expressed by the maxim : 
 Audi alteram partem. Hughes Proc. 51- 
 77. It unfolds the relations of procedure 
 both to government and to contract ; the 
 deed in question was contract ; it rested 
 on the Judgment and its foundation, 
 Clem. : 2c. Where the foundation fails, 
 all fails : Debile, etc. 
 
 Windsor also supports the proposition that 
 the study of procedure is a study of gov- 
 ernment. Cruikshank : 232. Also that 
 the technicalities of the law are its safe- 
 guards. The requirements for operating 
 government are necessarily technical. To 
 illustrate, the requirements for the di- 
 vision of state power involve many subtle 
 and technical rules. L. C. 142-146. 
 Titles to land depend upon the deed and 
 all of its technical distinctions, which al- 
 so depends on judicial procedure and 
 records. These are often vitiated, by ap- 
 parently inconsequential matters. See 
 Placitum : H C. 49. To illustrate, an 
 infant must be served with process ; the 
 service can not be waived as in cases of 
 adults ; and it matters not that the Court 
 appointed a guardian ad litem, who ap- 
 peared, filed an answer, and contested the 
 
16 
 
 DATUM POSTS. 
 
 Leading Cases. — 1. Windsor. 
 
 case. Galpin : 63. And the record must 
 show the service, by the right, and by a 
 sufficient document. Not only must there 
 be a judgment, but its foundation must 
 appear and be sufficient. Clem: 2c. Like- 
 wise where the confirmation of a judicial 
 sale is required, it must properly appear 
 of record. Williamson v. Berry : 65. C. 
 v. Roby : 74. So, also, other important 
 steps must likewise appear. And contract 
 has technicalities as will appear from the 
 subjects, consideration, and assent : but for 
 the defence arising from Non haec in 
 foedera veni: I did not come into this 
 compact, contracts could be arbitrarily 
 declared. Tort also has technicalities 
 as appears from the "squib case" ; also 
 crime as appears from many cases that 
 will be presented. 
 
 Official deeds and titles depend upon the 
 records from which they emanate ; the 
 Windsor case illustrates that point. A 
 mortgage depending upon a Judgment 
 falls therewith. Mach., 15 So. Dak. 432. 
 91 Am. St. 698. The examination of the 
 judgment depends upon innumerable re- 
 quirements, of which many may be 
 judged from the cases that we shall ex- 
 tendedly illustrate with ; these will suc- 
 cessively follow. 
 
 Jurisdiction is one of the most important 
 questions of procedure. See Jurisdic- 
 tion. Generally it depends upon the 
 mandatory record. Error shown from this 
 record will keep ; it saves itself without 
 objection or exception. "Windsor ; Cruik- 
 shank ; Perez ; Fish v. Cleland ; Roden ; 
 Planing Mill Co. v. Chicago ; Campbell 
 v. Porter ; Campbell v. Greer ; Mallinck- 
 rodt. 
 
 Abuse of power calls for no response, ob- 
 jection, exception, argument, or assign- 
 ment of error from one injured thereby 
 Windsor ; Perez ; Campbell v. P., L. C. 
 2 ; 2 Cyc. 715 : Cases. A denial of due 
 process of law, if evinced by the manda- 
 tory record is a matter for review without 
 more ; it does not need the assignment of 
 error, as does the statutory record. The 
 only exception to the foregoing rule is to 
 secure the review of a cause from the 
 highest state court, when removed into 
 the federal Supreme Court. Winona ; see 
 Federal Procedure. That court has bur- 
 dened the practice of that class of cases 
 so as to charge the practitioner with 
 grave responsibilities and constant anx- 
 ieties. 
 
 Courts are bound by their records, and not 
 by anything else. Without records a 
 court can do as it pleases, as in Asia and 
 Africa. That there may be records there 
 must be pleadings. See -Codes ; Sto. PI. 
 10 :235. De non apparentibus, etc. De- 
 vine ; Montana ; Jackson v. Ashton. 
 
 What is not juridically presented can 
 not be judicially considered, Windsor ; 
 Planing Mill Co. 
 
 One has the fundamental right to notice, to 
 
 Leading Cases. — 1. Windsor. 
 
 form an issue and be heard before Judg- 
 ment. Haddock ; Rouse ; Pennoyer : 58. 
 
 Probata will not supply allegata. Shutte : 
 291 ; Cruikshank and. following cases. 
 Verba fortius, etc. Prustra probatur; 
 Borkenhagen : 81. A judgment, without 
 or beyond the allegations and issues 
 shown from the right record is a nullity, 
 as will appear from the following cases. 
 See Allegations ; Issues. L. C. 34-44. 
 
 There shall be no departure; variances are 
 not allowed. See Identification. The 
 footing of the theory of the case in sev- 
 eral states depends upon a disregard of 
 Windsor, its cognate cases and maxims, 
 and the requirements of the conserving 
 principles of procedure. See §§ 83-123 
 Gr. & Rud. 
 
 Pleadings must exist and they must be suf- 
 ficient in substance. The ground of the 
 general demurrer is never waived. 
 Hughes' Proc. §§ 7-12. It may be raised 
 at any time and in any way. McAl- 
 lister : 3 ; Slacum ; C. v. Roby : 74. It 
 may be revived or first raised in a mo- 
 tion of arrest, or renewed or first raised 
 on collateral attack. Codes provide for 
 this practice most minutely. It is due 
 to say cases may be found opposing the 
 above view. Franklin Lodge ; 2 Thomp. 
 Tri. 2310, 2311 ; Weems, 80 Tex. 55. 
 
 There are important distinctions be- 
 tween the mandatory and statutory 
 records, which may be learned from 
 Windsor; Munday: 79; J'Anson : 91. 
 See Mandatory Record ; Assignment of 
 Error. 
 
 One must see that his judgment is entered 
 of record. Freem. Judg. 77. See Judg- 
 ments ; Constructive Notice. One 
 claiming a sequestration must prove it. 
 Horan : 85 ; Williamson : 65 ; Williams : 
 116 ; Walker : 118 ; Moser : 125 ; Pen- 
 noyer: 58; Ransom: 122; Windsor: 1; 
 Munday : 79 ; notes to Lampleigh : 301. 
 He must defend it against collateral at- 
 tack. 
 
 Recording an instrument must be in the 
 proper book to impart constructive notice. 
 Cady, 131 Cal. 552, 82 Am. St. 391, n. ; 
 McKenna, 109 Wis. 271, 83 Am. St. 895 
 (entries must be in the proper record) ; 
 Iverslie : 46 ; Expressio unius est exclusio 
 alterius. One charged with constructive 
 notice is not required to look in odd, 
 strange and new places for information, 
 not even in an answer for what ought 
 to be in a complaint (exceptions to this 
 in some courts), and never to the statu- 
 tory record for what ought to be in the 
 mandatory record. See Theory. 
 
 The supreme court of the United States 
 will not look into an answer for what 
 ought to be in a complaint ; nor into a 
 reply for what ought to be in an answer. 
 These views are agreeable to registra- 
 tion of notice, as of deeds, etc. One 
 claiming a lien or a title under a statute 
 must show strict compliance. A sufficient 
 return of an officer must be shown. 
 
DATUM POSTS. 
 
 17 
 
 Leading Cases. — 1. Windsor. 
 
 Mathews, ■ 47 N. J. Law, 415 ; Western, 
 39 Or. 407 ; Rockwood, 37 Minn. 533 : 
 cases ; Williams v. Peyton : 116 ; Depu- 
 tron: 121; Douglas 28 111. 362 (execution 
 omitted defendant's name). 
 
 A jurisprudence administered by in- 
 tellects respecting the unwritten consti- 
 tution is one kind, while a jurisprudence 
 administered by those not instructed in 
 the fundamentals of the law, and who do 
 not uniformly respect basic principles is 
 quite a different jurisprudence. The 
 justness of this observation is supported 
 by the condition that has come to several 
 states, the courts of which have attempted 
 to introduce the theory of the case, as ad- 
 vocated by those who may be cited to 
 support the view that pleadings can be 
 waived in courts where pleadings are pro- 
 vided for. From the mandatory record 
 and the maxim Audi, and its cognates 
 the fundamental requirements of a defined 
 government may be introduced and ex- 
 plained. Therefrom and therewith will 
 be introduced the prescriptive constitu- 
 
 • tion which is the gift of the Roman and 
 of the Norman races. 
 
 Generally, the principles in Windsor 
 are respected and upheld in the federal 
 courts and most of the American states ; 
 but not in all of these as will appear 
 from cases hereafter cited. Coke's three 
 degrees of certainty and the three stages 
 of variant construction, namely, before 
 trial, at trial, and after trial have made 
 the decisions of several states a jargon 
 of absurdities. See Dovaston : 217. 
 
 2. CAMPBELL V. PORTER (1896), 162 
 U. S. 478 (40 L. ed. 1044). Cited, § 27, 
 24, Hughes' Conts., Post. Fed. Prac. 496. 
 
 Cited, §§ 57, 70, 88-89, 129, 204, 237, 245, 
 251, Gr. & Rud. 
 
 Cam.pbell v. Porter, stated: A plaintiff 
 in an appellate court may raise the ob- 
 jection that the court has no jurisdiction 
 of the subject-matter. Craswell v. Be- 
 langer (1896), 56 Fed. 529, 6 C. C. A. 
 1 ; 60 Miss. 963 ; Springer : 24. A con- 
 sul can object at any time and in any 
 way to the exercise of any jurisdiction 
 affecting him in any court except in the 
 federal courts. There must be allega- 
 tions, and they must be certain. Rush- 
 ton : cases; Weil v. Greene County (1878), 
 69 Mo. 281, 286 : Cases (authority must 
 be pleaded). Wabash R. R. v. Young 
 (1904), 162 Ind. 102, 4 L. R. A. N. S. 
 1091, Lane v. Dorman ; Perez ; Benton. 
 County ; Roden ; Campbell v. Greer ; Peo- 
 ple's Bank v. Calhoun. 
 
 It is the duty of courts to guard their acts 
 and restrain them within their jurisdic- 
 tion (Windsor; Sto. PI. 10, 473, n.), 
 keep free of usurpation and abuse of 
 power, and to heed not only the advice of 
 parties at any time and in any way, but 
 also the amicus curiae. On principle a 
 witness called may refuse to answer ir- 
 relevant questions ; he is not bound to 
 tell all he knows of everybody and 
 
 Leading Cases. — 2. Campbell. 
 
 everything. A court will sua sponte notice 
 that a verdict departs from the plead- 
 ings. Smith v. Burrus. Garland : 60 ; 
 Ringland, 18 C. B. (N. S.) 301 (114 E. 
 C. L. R.) ; Bro. Max. 171 q. v. 182 ; 
 Debile; De non apparentibus. 
 Important and fundamental rules on writ 
 of error or appeal. The first and funda- 
 mental question is that of jurisdiction — 
 first of this court, and then of the court 
 from which the record comes. This 
 question the court is bound to ask and 
 answer for itself, even when not other- 
 wise suggested, and without respect to the 
 relation of the parties to it. Campbell ; 
 Pere8, Great Southern Co., 177 U. S. 
 449 ; cases ; Giles, 193 U. S. 146 ; Horan : 
 85. 
 
 Such objection by a court should be 
 considered with the rule that the ground 
 of the general demurrer is never waived. 
 McAllister. See Cooke ; Rushton. An- 
 other but belated form is a motion in ar- 
 rest of judgment. Cooke. The last stage 
 of objection is upon collateral attack. 
 Horan : 85. Windsor ; Walker : 118. See 
 Procedure. 
 What is a subject of waiver in procedure is 
 also a subject of express stipulation or 
 contract. Hughes' Conts. 14-18. But 
 there are matters relating to procedure 
 and the establishment of judgments and 
 decrees that cannot be waived, nor stipu- 
 lated nor contracted away. This view 
 is sustained by Campbell. What it sug- 
 gests, and also what may be deduced 
 from it, is of the greatest significance to 
 the practitioner and also to those dealing 
 with judgments and decrees, and titles to 
 property founded upon judicial proceed- 
 ings. From such view-points the im- 
 portance of the case will appear. See 
 Rushton ; Debile fundamentum : Bro. 
 
 Max. 186, 182, 715 (8th ed.) ; California: 
 240. Collateral Attack ; Construc- 
 tive Notice. 
 The fundamental rule that consent cannot 
 confer jurisdiction of subject-matter is 
 not given a dignity and operation above 
 consent and acquiescence in all jurisdic- 
 tions. The force and protection of that 
 rule requires the establishment and recog- 
 nition of a hard-and-fast line within 
 which assent, stipulation and condone- 
 ment must be confined and restrained 
 from its impairment and destruction. 
 Wherever this is permited may be 
 traced a great enlargement of the prov- 
 ince of contract right and profound dis- 
 turbances of procedure. 
 
 Waiver in procedure has limitations, 
 and these bound and define the right to 
 contract as to matters involving pro- 
 cedure. See § 6, Gr. & Rud. ; French v. 
 Miller ; Garland : 60. Consensus tollit 
 errorem; Allegans contraria. 
 
 Decisions in a multitude of jurisdictions 
 may be cited to oppose the rules in Camp- 
 bell. See Hume : Theory of the Case. 
 
 Elsewhere is stated the influence ot 
 
18 
 
 DATUM POSTS! 
 
 Leading Cases.— 2. Campbell. 
 
 procedure upon contracts. "Windsor ; Cut- 
 ter ; Rann ; De non apparentibus. See 
 Stare Decisis. 
 
 Certainty and protection depend upon a 
 definite theory of construing and admister- 
 iitg the laws. See Procedure. 
 
 At all times a leading question is : How 
 will a court construe and enforce? There- 
 fore all that relates to those questions 
 must be taken into account and be com- 
 prehended. See §§ 27, 28, Hughes' Conts. ; 
 Perez ; Haddock. 
 
 Averment of amount in dispute waived if not 
 objected to in the lower court. Jackson v. 
 Giles (1903), 189 U. S. 475 (Harlan, J., 
 dissenting). Contra: Holt, 176 U.-S. 68, 
 70; U. S. v. Sayward (1895), 160 U. S. 
 493 ; McAllister. 
 
 fundamental error appearing upon the 
 mandatory record needs no objection, ex- 
 ception, protest or statutory record, or as- 
 signments of error. It may be raised at 
 any time and place, and of course in an 
 appellate court. M., K. & T. R. R., 92 
 Tex. 501 : -cases ; McAllister ; Windsor. 
 
 Pleading — waiver of objections to peti- 
 tion. The objections to a petition that a 
 court has no jurisdiction over the subject- 
 matter, and that the petition does not 
 state facts sufficient to constitute a cause 
 of action, cannot be waived. Marks Co., 
 168 Mo. 133, 90 Am. St. 440, 56 L. R. A. 
 951. Allegations ; Aider. 
 
 Jurisdiction; consent to and waiver of.' 
 Jurisdiction of the subject-matter of a suit 
 cannot be conferred by consent ; neither 
 can the want thereof be waived. Conant, 
 23 Utah, 627, 90 Am. St. 721, n. See 
 Jurisdiction. 
 
 Pleading essential in the removal of causes, 
 Expressio unius, etc., De non apparentibus, 
 etc. When the right to remove a cause 
 depends upon the nature of the controversy 
 and the questions to be litigated, the com- 
 plaint alone is to be considered for the 
 purpose of ascertaining the controversy 
 and the questions involved ; and although 
 the defendants may by their pleadings in- 
 troduce new matter and raise additional 
 questions, they cannot so change the case 
 as to make it cognizable in a federal 
 court, if it was not so when commenced. 
 Doremus v. Root (1899), 94 Fed. 760. 
 
 The grounds of removal must be disclosed 
 and also from the plaintiffs pleadings 
 alone. Walker, 167 V. S. 57 ; Chappell, 
 155 TJ. S. 102. Facts must juridically ap- 
 pear before they can be judicially consid- 
 ered. Doremus, supra. 
 
 Description of a cause of action is es- 
 sential to confer jurisdiction. See Cause 
 of Action. Wabash R. R. (Ind.) ; Ben- 
 ton. 
 
 Overruling general demurrer will keep with- 
 out exception. Mallinckrodt (Mo.). 
 
 2a. CAMPBEIL v. GB.EER (1896), 197 
 Mo., 463-466 ; S. P. Windsor ; Campbell 
 v. Porter. 
 
 Pleadings are the foundation, are the authority 
 to support a judgment ; and for its support 
 they must exist. ' Clem. If the pleadings 
 are lost they must be supplied. Iverslie. 
 
 Leading Cases. — 2a. Campbell. 
 
 Stipulations for contracts of the parties to a 
 record can not dispense with pleadings. 
 People's Bank v. Calhoun. The manda- 
 tory requirements of a constitutionalism 
 can not be waived. Lane v. Dorman. 
 Hughes' Conts., 14-18; §§ 59-61, Gr. & 
 Rud. 
 
 A judgment has no effect or validity in prov- 
 ing title founded thereon, or an estoppel of 
 record until its authority is shown. Clem. 
 An authority must be pleaded. See Jus- 
 tification. 
 
 2b. CLARK v. SIXES (1905), 193 Mo. 
 502-517. 
 
 The presumption of regularity will not 
 supply an omitted jurisdictional fact from 
 the right record. Hannah : 128. There 
 are limits of liberal presumptions ; Ricket- 
 son : 59. 
 
 Confirmation of judicial sales is essential, 
 and it must appear of record and plainly 
 so. Clark ; Williamson : 65. 
 
 "What ought to be of record must be proved 
 by record, and. by the right record." Wind- 
 sor ; Crain. 
 
 2c. CLEM V. M£SEBOLE (1902), 44 
 Fla. 234, 32 So. 815, 103 Am. St. 145, n. 
 
 Cited, §§ 59, 61, 119, 124-125, 138, 143, 
 149, 201, 201a, 268, 270a, 272, 286, Gr. 
 & Rud. 
 
 The judgment and its foundation neces- 
 sary to prove estoppel or title founded 
 thereon. §§ 124-125, Gr. & Rud. 
 
 Evidence; judgments as evidence include the 
 mandatory record. In res adjudicata and 
 proving a title founded on a judgment, not 
 only the judgment but its essential record 
 besides must be introduced. The word 
 "judgment" includes the record upon which 
 it is founded. Expressio eorum, etc. ; 
 Clem; Vail v. Inglehart (1873), 69 111. 
 332, 334, citing Steph. PI. 24, et seq.; 
 Freem. Judg. 51, 75 ; Mayer v. Brensinger 
 (1899), 180 III. 110, 121; Ingham v. 
 Crary, 1 Pa. 389-394; 1 Whart, Ev. 824; 
 cases; S. v. Hawkins (1882), 81 Ind. 486 
 (all of the record but not the statutory 
 record must be introduced. Elliott, J.) ; 
 Brown v. Eaton (1884), 98 Ind. 591; Har- 
 gis v. Morse (1871), 7 Kans. 415 (Brewer. 
 J.), 197 Mo. 463. See Missouri; Piper; 
 114 ; Cases. 
 
 An authority must be pleaded is an old and 
 well settled rule. Jurisdiction is authority 
 and it must be affirmatively shown, and 
 both of the person and of the subject-mat- 
 ter. For the former, either the process or 
 a general appearance must be shown ; for 
 the latter the pleadings, which are to show 
 the particular subject-matter adjudicated. 
 De non apparentibus. 
 
 From the mere judgment entry of no 
 court, not even of the superior, will it be 
 presumed the court had jurisdiction before 
 these facts are alleged and proved. Ho- 
 ran : 85. .In the above cases, namely, res 
 adjudicata and proving a title founded on 
 a judgment, there are no presumptions of 
 regularity. The record can neither be sup- 
 plied nor patched out by liberal construc- 
 tion. Estoppels are odious. Every pre- 
 sumption is against a pleader. Dovaston: 
 
DATUM POSTS. 
 
 19 
 
 Leading Cases.— 2c. Clem. 
 
 217, A fortiori where one is both, estopped 
 and loses his property by a proceeding, 
 all intendments are in his favor. 
 
 The dissenting opinion in Clem v. Mes- 
 erole, that the rule applies to judgments 
 of inferior or statutory tribunals is not 
 justified. The rationale involved was mis- 
 conceived. 
 
 The rules in Omnia prwsumuntur rite 
 esse acta, Probatis extremis prwsumuntur 
 media and Res ipsa loquitur, may be con- 
 sidered with the above cases. 
 
 The rule in the federal courts may be 
 picked out of Pennoyer, Windsor and Gal- 
 pin : 63. 
 Inferior and statutory tribunals generally 
 have no files. Crepps ; Piper; 113-114; 
 Cases. Their records must show affirma- 
 tively that the court had jurisdiction. This 
 distinction from superior courts exercising 
 a general jurisdiction should be well com- 
 prehended. Crepps : Cases. Rice v. Tra- 
 vis (111.). See Collateral Attack : 
 Cases. 
 
 In Illinois the entire record must be in- 
 troduced, but if not inconsistent therewith 
 jurisdictional facts will be presumed, e. g., 
 that the defendant was properly served 
 with process. Harrow v. Grogan (1906) ; 
 Ricketson : 59. Kenney v. Greer (1851), 
 13 111. 432, citing Kempe v. Kennedy, Bor- 
 den v. Fitch and Bloom v. Burdick, intro- 
 duces singular and erratic distinctions and 
 refined discussions relating to superior and 
 inferior courts. S. P. Benefield v. Albert 
 (1890), 132 111. 665; Wallace v. Cox 
 (1874), 71 111. 548. To support presump- 
 tions of continuity the record must be reg- 
 ular. Swearengen v. Gulick (1873), 67 111. 
 208, note; 28 Am. St. 87. Omnia prw- 
 sumuntur rite, etc. 
 Records — Pleadings if lost must be supplied. 
 
 197 Mo. 463. See Missouri. 
 Prcesumatur pro justitia sentential: The 
 justice of a sentence shall be presumed. 
 Windsor (matters shown de hors the judg- 
 ment entry may invalidate the judgment, 
 not only in appellate procedure but wher- 
 ever the record is offered to prove either 
 an estoppel or a title founded thereon). 
 
 Campbell v. Porter. (Any one, not 
 only parties to the record, but an amicus 
 curiw, may suggest to a court that its pro- 
 ceedings are coram non judice. In other 
 words, one may demur to his own plead- 
 ings.) 
 
 Clem (wherever a judgment of any 
 court, of any grade, superior or inferior, 
 general or limited, is offered to prove an 
 estoppel of record, it must be attended by 
 the mandatory record to support it. An 
 authority must be shown ; it must be al- 
 leged, and if denied, then proved. The 
 rules of res adjudicata are consistent with 
 the rule in Clem). And this rule is De 
 non apparentibus et non existentibus eadem 
 est ratio (what is not juridically present- 
 ed cannot be judicially considered) . A 
 part of the latter rule is Frustra pro- 
 batur quod probatum non relevat (it is 
 vain to prove what is not alleged) ; also 
 
 Leading Cases. — 2c. Clem. 
 
 that allegata et probata must correspond. 
 Presumptions will not supply the manda- 
 tory record where one claims title or an 
 estoppel thereon. As to the statutory rec- 
 ord, it is for an appellant and it is to be 
 used in an appellate court only. As to this 
 latter record Consensus tollit errorem (con- 
 sent will not waive error) and Praesuma- 
 1ur pro justitia sentential have their great- 
 est applications. To this latter record 
 these maxims are most liberally applied). 
 
 U. S. v. Cruikshank ( the omission of 
 an essential pleading, or still further of 
 a single essential allegation, will constitute 
 the proceedings coram non judice. Debile 
 fundamentum fallit opus : Where the foun- 
 dation is lacking all goes to the ground). 
 
 Rushton : (same point as in U. S. v. 
 Cruikshank). 
 
 Munday (ordering a trial without an 
 issue constitutes a coram non judice pro- 
 ceeding) . 
 
 Crain v. U. S. (same point as Munday. 
 The rule applies as in all cases alike. The 
 rule is dictated by the conserving princi- 
 ples of procedure). 
 
 The maxim of regularity is not universal 
 in its application. Omnia praesumuntur 
 rite et solemniter esse acta is not a uni- 
 versal rule. Crepps : 113. In judicial 
 matters it is not applied so as to dispense 
 with the mandatory record of any of its 
 necessary parts. For the basic — the con- 
 stitutional rule — "what ought to be of rec- 
 ord must be proved of record and by the 
 right record." Planing Mill Co. v. Chi- 
 cago; Roden (Mo.), is fully conserved 
 and respected before the presumption of 
 regularity is given any place. According- 
 ly, it appears that the conserving princi- 
 ples of procedure are safeguards and vin- 
 dicated by courts as a first duty — as a 
 primal obligation imposed by government 
 % for its means and existence. The rights of 
 the individual are secondary ; the public, 
 the government is first and above all. Pri- 
 vate inconvenience is made up for the pub- 
 lic good. Salus populi suprema lex. Where 
 essentials are involved, where substance is 
 sought, there applies De non apparentibus 
 et non existentibus eadem est ratio (what 
 is not juridically presented cannot be judi- 
 cially considered). For protection under 
 this, the coram judice rule, there ever at- 
 tends for the construction of the record, 
 the rule Verba fortius accipiuntur contra 
 proferentem (a record is construed against 
 him who produced it or who seeks to es- 
 tablish a title or an estoppel of record 
 upon it). Williamson v. Berry: 65; 
 Clem, supra. 
 
 The foregoing views involve the theory, 
 the structure and the nature of govern- 
 ment. Governments accusatory in form and 
 nature must respect the foregoing canons 
 of pleading here,, of evidence there, of 
 practice yonder, and of construction else- 
 where, which is above and beyond, the ever 
 attending ally and "metwand" of all. Here 
 is an illustration of the way that the vari- 
 ous subjects and branches of the law inter- 
 
20 
 
 DATUM POSTS. 
 
 Leading Cases.— 2c. Clem. 
 
 weave and interlace. The law is an en- 
 tirety. The study of procedure is a study 
 of government. U. S. v. Cruikshank. su- 
 pra; Blake v. McClung, 172 U. S. 232. 
 Impairment or denial of the foregoing 
 principles is an attack upon a constitu- 
 tionalism. 
 
 Inseparably connected with the foregoing 
 is the question of what can be and what 
 cannot be waived. This involves what need 
 not be assigned for error and what must 
 be assigned for error. Windsor, supra; 
 Campbell v. Porter, supra; Perez ; Roden ; 
 Planing Mill Co., supra. This brings with 
 it for consideration the maxim Consensus 
 tollit errorem (waiver of error condones 
 it). Its limits extend up to and against 
 what is a ground for collateral attack, or 
 at an earlier stage, a ground for arrest of 
 judgment, or at still earlier stages, a 
 ground for general demurrer. As to these 
 grounds, there need be no assignment of 
 errors ; whatever is a ground for collateral 
 attack, a court will sua sponte take notice 
 of and act upon because the conserving 
 principles of procedure or of government 
 are involved. Whether or not there exists 
 a government of limited and denned pow- 
 ers depends upon its procedure. What this 
 is depends upon the judiciary and whether 
 or not it is lured and led astray by the 
 euphemism called the theory of the case. 
 The above use of the maxims shows how 
 clearly they set forth the principles of the 
 law, and we believe also shows as clearly 
 that it is very important to keep them 
 impressed by their constant use. All expe- 
 rience shows there ever must be some 
 datum posts, from which to reckon. The 
 greatest legal minds of the Roman and of 
 the Norman, of all the ages have observed 
 and built around them. Ulpian, from 
 whose works two-thirds of the pandects 
 were derived, preserved them. Bacon saw 
 with an all-comprehensive eye their utility. 
 Mansfield conserved them for the purpose 
 of clarifying the laws in his day and Story 
 used them in his incomparable works. 
 Every truly fundamental work must em- 
 ploy them for the varied reflections they 
 ever afford. They suggest much that re- 
 lates to the morality, the simplicity, the 
 intensive-usefulness, and the history of 
 the law. 
 
 2d. PLANING MILL CO. V. CHICAGO 
 (1870), 56 111. 304: Cases. 
 
 Cited, §§ 59, 96, 101, 118, 124, 128a, 138, 
 165, 175, 199, 201a, 203, 210, 224, 229, 
 236, 243, 267-269, 272, 278, 297, Gr. & 
 Rud. 
 
 Mandatory record is exclusive in its func- 
 tions. Expressio unius, etc. ; Wright v. 
 Griffey (statutory record exclusive). Many 
 cases in Missouri support this view. 199 
 Mo., 150, 159, 167, 255, 256-258, 278. 
 Collateral attack. Placitum< — necessity 
 thereof. Where the record in the court 
 below, as shown by the transcript filed in 
 this court, contains no placitum or con- 
 vening order of the court, such defect is 
 ground for reversal. Same — whether aided 
 by bill of exceptions. Nor could the defect 
 
 Leading Cases. — 2d. Plan. Mill Co, 
 
 be aided by the bill of exceptions. A bill 
 of exceptions is really and practically no 
 part of the record till after judgment, and 
 it would be a perversion of its uses to 
 make it aid the defects of the judgment 
 record. 
 
 Dill of exceptions should be sealed by the 
 judge who tried the cause. 
 
 Courts will first consider the conserving 
 principles, before they will the rights of 
 the parties litigant. Austin R. R. v. Cluck. 
 
 Exhibit attached is no part of a pleading. 
 Pearsons v. Lee (1835), 1 Scam. 193; Al- 
 legations in Caption insufficient, are sur- 
 plusage. Jackson V. Ashton (U. S.). 
 
 2e. PEREZ V. FERNANDEZ (1906), 202 
 U. S. 80-101. 
 
 Jurisdiction of subject-matter can not be 
 waived. The court sua sponte may raise 
 the question, Campbell v. Porter. Where 
 a court a quo had no Jurisdiction, the 
 court ad quern acquires none. Horan: 85. 
 
 Peres stated: A Porto Rican court was 
 required by local law to assess damages on 
 an attachment bond along with the trial of 
 the attachment issue. But instead, it per- 
 mitted the attached defendant to bring an 
 independent suit on the bond for damages, 
 who recovered thereon. The cause was re- 
 moved by error to the Federal Supreme 
 Court, which held that the failure to as- 
 sess the damages on the bond, was fatal to 
 prosecuting an independent suit therefor, 
 and that there was no jurisdiction of sub- 
 ject-matter in the second suit, and that 
 the court would sua sponte notice this de- 
 fect ; that it could be raised at any time 
 and in any way ; that the mandatory rec- 
 ord presented it and that this was suffi- 
 cient. Campbell ; Windsor. That neither 
 objection nor exception was necessary. 
 ( See Winona ; Howard v. Fleming. ) When 
 a directory statute is construed mandatory 
 remedies are defeated. J. J. White and 
 McKenna dissenting. See Beeze v. Haley : 
 Hughes' Proc. Hahl v. Sugo ; Davidson v. 
 New Orleans. Cujus est instituere ejus 
 est abrogare. 
 
 What might or should have been decided is 
 presumed to have been. See Res Adjudi- 
 cata. Splitting causes of action is not 
 permissible. Interest reipublictE ut sit 
 finis litium. Perez is considered a very 
 instructive case for reasons stated under 
 Windsor : 1. 
 
 2f. DAVENPORT V. FARRAR (1836), 2 
 111. 315. 
 
 Cited, §§ 59, 88, 113, 117-124, 278, Gr. & 
 Rud. 
 
 Davenport stated: Dower can be assigned 
 in an estate of inheritance only. Under a 
 statute for assigning dower the statement 
 therefor averred that the husband was 
 joint owner and proprietor with others. The 
 power — jurisdiction of the court to act — 
 depended upon these words ; thereon it or- 
 dered the assignment. From this there 
 was an appeal, where the court refused to 
 construe the words owner and proprietor to 
 mean more than a mere possessory or 
 equitable right. 
 
DATUM POSTS. 
 
 21 
 
 Leading Cases.— 2f. Davenport. 
 
 Every presumption against the pleader 
 was applied. Verba fortius accipiuntur 
 contra proferentem J Harrow V. Grogau ; 
 Lonstorf ; Dovaston : 217. 
 
 "When a party comes into court of justice, it 
 is incumbent upon him to exhibit a right 
 to recover in clear and legal language, oth- 
 erwise the court cannot grant the relief 
 sought." Pish v. Cleland ; Pain ; 107 ; 
 Sto. Eq. PI. 253a ; Montana ; Devine v. 
 Los Angeles. 
 
 A sufficient pleading is jurisdictional. If this 
 is lacking, proceedings founded thereon 
 fail. Debile fundamentum fallit opus; 
 Moore v. C. : 21 ; Munday : 79 ; Guedel v. 
 P. : 74a ; Fish v. Cleland ; Campbell v. 
 Porter : 2. See Franklin Lodge, which op- 
 poses the above cases. 
 
 This case shows that a pleading is con- 
 strued from the nature of a subject-matter. 
 
 3. McAllister v. kuhb (1877), 96 
 
 U. S. 87 (24 L. ed.). Cited, §§ 6, 8; 
 Hughes' Proc. ; §§ 242-256, Gr. & Rud. ; 
 120 Ga. 118, 102 Am. St. 118-124. 
 
 Cited, 49, 89, 90, 164, 199, 201, 204, 242- 
 256, 268, Gr. & Rud. 
 
 Default does not waive substantial defects. 
 Upon a writ of error to reverse a judgment 
 by default, such defects in the declaration 
 or complaint as could have been taken ad- 
 vantage of before judgment by general de- 
 murrer may be brought under review. 
 
 Tlie ground of the general demurrer is never 
 waived. If the judgment would have been 
 arrested on motion, because the declara- 
 tion did not state facts sufficient to consti- 
 tute a cause of action, it may, for the 
 same reason, be reversed upon error. Sla- 
 cum. Cf. Buchanan ; Weems ; Rosen v. U. 
 S. ; U. S. v. Cruikshank ; Bouv. Die. : De- 
 parture (ground of general demurrer may 
 be waived). 
 
 Objections of substance may be raised at any 
 time and in any way. Cf. Mutual reserve 
 Ass'n. v. Phelps (1903), 190 U. S. 147 (if 
 a state court had jurisdiction of a subject- 
 matter under general law, its defects can 
 not be raised by collateral attack in the 
 Federal Supreme Court). See Howard v. 
 Fleming : Cases. Franklin Lodge. 
 
 The ground of the general demurrer may al- 
 ways be raised, and orally: It cannot be 
 waived. The court will sua sponte' notice 
 it. Campbell ; Cruikshank (motion in ar- 
 rest of judgment). See Departure ; Alle- 
 gations ; Cause of Action ; Slacum. 
 
 4. HOPPER v. COVINGTON (1886), 118 
 U. S. 148, 30 L. ed. 190, 6 Sup. Ct. Rep. 
 1025 ; Abb. Sel. Cas. PI. 106. 
 
 Cited', §§ 203, 207, Hughes' Proc. Cited: 
 132, 245, Gr. & Rud. 
 
 Omission of descriptive allegations is a fatal 
 defect. See Jurisdiction. 
 
 "The averment, that the defendant is a 
 municipal corporation under the laws of 
 Indiana, with full power and authority, 
 pursuant to the laws of said state, to 
 execute negotiable commercial paper, is 
 inconsistent with the public laws of the 
 state, of which the courts of the United 
 States take judicial notice. The aver- 
 ment that the bonds held by the plaintiff 
 were executed pursuant to the laws of the 
 
 Leading Oases. — 4. Hopper. 
 
 state, is but a statement of a conclusion 
 of law, which is not admitted by de- 
 murrer. The declaration is fatally defec- 
 tive for not stating the facts necessary 
 to enable the court to judge for itself 
 whether that conclusion of law has any 
 foundation in fact." 
 
 Conclusions of law unavailing for- any 
 purpose. They can not be aided. Cruik- 
 shank, 13 Wall. 166 ; Craigin, 109 U. S. 
 194 (citing Rushton v. AspinalV) ; Ken- 
 nard, 3 Dillon, 147 ; Broome, 76 N. Y. 
 564 ; Cotton, 47 N. J. L. 401. 
 
 Conclusions of law are a nullity, and will 
 not avail. Hopper ; Cruikshank. Are not 
 aided by a denial. Foster, Fed. Prac. 146. 
 Nor by a demurrer, nor by a default. Hop- 
 per. See Aides. 
 
 A. judgment resting on a bad statement of "a 
 cause of action," and also a default, will be 
 set aside on a writ of error — review. Hop- 
 per ; McAllister ; Perez. 
 
 Demurrer admits only facts well pleaded. 
 Hopper. It does not admit the pleader's 
 conclusions and construction. Greeff, 160 
 N. Y. 19, 73 Am. St. 65-69, 46 L. R. A. 
 288. Demurrer. L. C. 42. 
 
 An authority must be pleaded. And. Steph. 
 PI. 355. The right — the power — of a mu- 
 nicipal corporation to issue bonds must be 
 set forth. The facts showing the authority 
 must be pleaded. Conclusions will not do. 
 Hopper. Authority to issue bonds must be 
 given by law ; the power must exist in fact. 
 See Justification ; Res adjudicata. 
 
 5. RUSHTON v. ASPINALL (1781), 2 
 Doug. 679, 1 Smith, L. C. 1445-1454, 
 omitted in 9th ed., also from 10th and 
 11th Lond. eds. ; reprinted in Bartlett, and 
 cited and followed in Williams v. H. Co.; 
 Cra'gin v. Lowell, 109 U. S. 197. S. P. 
 Hopper, -stated, Wade on Notice, 1401 ; 
 Hughes' Proc. 
 
 Cited, §§ 53, 70, 88, 89, 109, 111-113, 119, 
 124, 142, 143, 162-164, 175, 182, 187, 
 192, 201a, 202, 223, 224, 230-232, 237, 
 245, 278, Gr. & Rud. 
 
 Rushton stated: The holder of a bill of 
 exchange sued an endorser thereon, but did 
 not allege a demand and refusal by the ac- 
 ceptor to pay it on the day it was payable. 
 Plaintiff further failed to allege that notice 
 of the dishonor of the bill by the acceptor 
 was given to the defendant, as is required 
 in the law of commercial paper. Because 
 of those omitted allegations, respectively, 
 no "cause of action" was shown against 
 the defendant, therefore the judgment, was 
 arrested. 
 
 The omission of an essential allegation 
 cannot be supplied from the evidence, or 
 by inference. Frustra probatur quod, pro- 
 batum non relevat: 21, 232. 
 
 Aider by verdict; limitations of rule of lib' 
 eral construction. Rushton : 12, 14, 70, 
 71 ; Dobson ; Bowman v. P. ; Aider 2 Cyc. 
 689-691. 
 
 Spieres {or Spiers) v. Parker (1786), 1 Term 
 Rep. 141-146 (D. & E.), 1 R. R. 165; 6 
 Mews' E. C. L. 598, cited and approved in 
 Williams v. Hingham, also in Bartlett, S. 
 P., Cruikshank ; Rushton ; 1 Gr. Ev. 19 ; 1 
 Chit. PI. 711-713 ; § 53 Gr. & Rud. 
 
22 
 
 DATUM POSTS. 
 
 Leading Cases. — 5. Eushton. 
 
 Nothing to be presumed after verdict but 
 what is expressly stated in the declaration, 
 or what is necessarily implied from those 
 facts which are stated. Slacum ; Dobson ; 
 1 Gr. Ev. 19 ; R. v. Goldsmith, 20, 70, 71. 
 
 In Spieres, Mansfield, Ashhurst and Buller 
 spoke and confessed they could find' no 
 authority to uphold a judgment resting on 
 -a declaration omitting a material allega- 
 tion. Weil v. Green ; Campbell v. Porter. 
 
 Fisher v. Langbein (1886), 103 N. Y. 84, 
 Erwin, Cas. Torts, 269. Allegations es- 
 sential to resist collateral attack, and to 
 protect attorneys and others acting under 
 the proceedings : "It seems where the 
 jurisdiction of the court is made to de- 
 pend upon the existence of some fact of 
 which there is no proof, it has no author- 
 ity in the premises ; and if it, nevertheless, 
 proceeds, all of its acts are void and afford 
 no justification to the party instituting 
 the proceedings, or to an attorney who 
 causes process to be issued in such pro- 
 ceedings." Fisher; Savacool ; Buck v. Col- 
 bath ; Tarble's Case : 247 ; Slacum ; Mali- 
 cious Prosecution ; False Imprisonment. 
 Collateral Attack ; Debile fundamen- 
 tum. 
 
 Evidence of a distinct substantive fact with- 
 out an allegation on the record not re- 
 ceived. Smith v. Clarke (1806), 12 Vesey, 
 477, 8 R. R. 359, 33 Eng. R., 6 Mews' E. 
 C. L. 801; Scott v. Sampson (1882), 8 
 Q. B. D. 491, 6 Mews' E. C. L. 800 
 (Justification facts in defamation not 
 pleaded can not be proved) : Cases. 
 Malcolmson v. Clayton (1860), 13 Moore, 
 P. C, 198, 15 Eng. R. 74, 6 Mews' E. C. L. 
 802. And likewise of defenses. Perrse, 7 
 Clark & F., 279, West, 110, 7 Eng. Rep. 
 1073; Atwood v. Small (1835), 6 CI. & F., 
 232, 7 Eng. Rep., 685, 6 Mews' E. C. L. ; 
 801 : Cases. Fish v. Cleland ; Cruikshank ; 
 Mallinckrodt : 12a (Mo.) ; 2 Cyc. 691, 
 715 ; 2 Cent. Dig. Appeal, § 1223. 
 
 A petition to remove a cause to divest 
 and to confer a jurisdiction must set forth 
 facts showing a right under the constitu- 
 tion. Galveston R. R., 170 U. S. 226, 42 
 L. ed. 1017, n. ; Craswell : 10. Conclusions 
 of law will not do. Green: 90 (code) ; 
 Hanford : 86. 
 
 There must be a cause of action alleged, and 
 to this applies Expressio unius, etc. ; Bris- 
 tow ; Cruikshank : 135, 232. 
 
 "Due process of law" requires "regular alle- 
 gations." Murray v. H. : 219 ; Cruikshank. 
 These words are not used to fill up, for 
 "sound," for "euphony." Galpin : 63. 
 
 Every presumption is against a pleader, 
 Verba fortius, etc. ; Ambiguum, etc. ; Do- 
 vaston : 217 ; Cases. See Hughes' Pro- 
 cedure : Cases. 
 
 Codes have not changed the rule in 
 Rushton. Andrews v. Lynch (1858), 27 
 Mo. 167. Essential requirements can not 
 be waived. Mallinckrodt : 12a. Windsor 
 and following cases state the rule of the 
 Code. The Code is founded on fundamental 
 principles. Bliss PI. 41. Verba fortius, 
 applies to all defined systems. 
 
 Leading Cases. — 5. Rushton. 
 
 Perhaps 'the most exaggerated notions of 
 the scope of the Statute of Jeofails are to 
 be found in Missouri. The 8th clause of the 
 1845 statute of Missouri, provided that de- 
 fects which could be taken advantage of by 
 "special" demurrer, should be cured by 
 verdict. This was nothing but a reaffirma- 
 tion of the common law, and is in perfect 
 accord with the present English Judicature 
 Act. But in 1855, the Missouri Statute of 
 Jeofails was amended (see the statute quot- 
 ed, 105 Mo. 469) by striking out the word 
 "special" and thus attempting the impos- 
 sible — the cure of inherent jurisdictional 
 defects. Legislatures can not validate void 
 judgments ; they cannot escape the neces- 
 sities of justice, constitutionalized as "due 
 process of law." The true rule is laid 
 down in 1 Gr. Ev. § 19, and cannot be de- 
 parted from. This attempt of the Mis- 
 souri legislature has misled her lawyers, 
 beclouded her jurisprudence, and disrupted 
 the due administration of her laws. Con- 
 trast 69 Mo. 281 with 105 Mo. 455. Ac- 
 cording to the former, a fatally defective 
 petition is incurable ; according to the lat- 
 ter under one cause of action stated, recov- 
 ery may be had on another not stated. 
 This matter is elsewhere herein referred 
 to, Indianapolis : 223. The whole subject 
 can be mastered by a study of Rushton; 
 Bristow: 135; Dovaston: 217; Dobson: 
 232a; 1 Chit. PI. 703-716. And bearing 
 in mind that the Statute of Jeofails as con- 
 strued by intellects familiar with the im- 
 mutable constitution of the Roman and 
 Norman, is only an affirmative statute. 
 Rushton ; Windsor. 
 
 Certainty is reckoned from the conserv- 
 ing principles of procedure ; these are da- 
 tum posts. What is sufficiently certain is 
 a judicial question which involves con- 
 struction. Legislatures cannot prescribe 
 rules of construction for courts. Codes, 
 statutes, merely reaffirm the older laws. 
 Bliss PI. 141. Those familiar with the 
 maxims and illustrations of the application 
 of them in the cases construe from the 
 maxims without regard to cases or stat- 
 utes, and come to sound conclusions in 
 obedience to those maxims. The letter of 
 statutes must be set aside. All reckonings 
 are from the conserving principles. 
 Hughes' Proc, pp. 8-14. The rules of 
 procedure interact with these conserving 
 principles. Concordare leges legibus est 
 optimus interpretandi modus. It is pre- 
 sumed that legislatures except fundamental 
 law and its essential requirements, in all 
 their acts. Verba intentione debent inser- 
 vire. § 28, Hughes' Proc. The common 
 law ever attends and limits or expands leg- 
 islation. C. v. Hess : 215. 
 
 6. BAETLETT v. CEOZIER (1820), 17 
 Johns, 448, 8 Am. Dec. 428-442, n. Cited 
 114 111. 475, §§ 13, 23, 28, 30, 78, 104, 
 348, Hughes' Proc. 
 
 S. P. Rushton (which is quoted and fol- 
 lowed) ; Williams presents other cases; 
 these cases support a basic rule, and which 
 is reaffirmed in codes. Rushton ; Sto. PI. 
 10 ; De non apparentibus. 
 
DATUM POSTS. 
 
 23 
 
 Leading Cases — 6. Bartlett. 
 
 An officer who neglects to perform a public 
 duty and thus causes an injury to one is 
 liable for it. Bartlett; Cool. Torts, 408, 
 n. ; Dill. Corp. ; Beach, Pub. Corp. ; Mech. 
 Pub. Off. ; Cool. Const. Urn. ; Whart. Neg. ; 
 Shear. ; Bailey v. Mayor ; Hill v. Boston. 
 
 Public officers liable for a neglect of duty. 
 Bro. Max. 197 ; C. v. Coyle, 160 Pa. 30, 40 
 Am. St. 708-714, n. (indictment of com- 
 missioners for criminal neglect, and there- 
 by causing death of infant in poor-house) ; 
 R. v. Morby; R. v. Conde. Cited, § 22, 
 Hughes' Conts. 
 
 7. WILLIAMS V. HINGHAM TURNPIKE 
 CO. (1826), 4 Pick. 341, 344. Verba 
 fortius. 1 Chit. PI. 705; 114 111. 475. 
 
 S. P. Bushton; Moore v. C. (Shaw) ; C. v. 
 Child (1832), 13 Pick. 198. In the last 
 case Shaw, J., gives an able statement of 
 the rule, and we cite this case to connect 
 Mansfield, Kent and Shaw with the estab- 
 lishment of a great universal fundamental. 
 De non apparentibus, etc. ; Dovaston ; 
 J'Anson : 217, 91. The requirements of 
 criminal cases are the same. James v. 
 Bowman ; Huntsman v. S : 231 ; Cruik- 
 shank ; R. v. Thurstin ; R. v. Waters : 70. 
 
 Statutory rights must be strictly pleaded. 
 Suth. Stat. 368, 399, 400. An omitted al- 
 legation is fatal. Williams. And this rule 
 is applied in all cases. Van Leuven. See 
 Waiver. 
 
 The same rule applies to U. S. courts. 
 Runkle; Brown v. Keene (1834), 8 Pet. 
 (U. S.), 112; Craswell: 10. See Harvey: 
 123. 
 
 Omitted allegations are fatal to statutory 
 proceedings. Suth. Stat. 393 ; Van Leuven 
 (also in all cases alike) ; Cruikshank. 
 
 8. CLYDESDALE BANK V. FATON. Ap- 
 peal Cases (H. of L. 1896), 381, 7 Mews' 
 B. C. L. 
 
 A written statement of a cause of action 
 essential : 
 
 "By the precision of the Scotch plead- 
 ing there is still a necessity to set out 
 the real cause of action, which is capable 
 of definite and precise statement, which 
 I regret to say is no longer the case in 
 English pleadings. I therefore speak 
 with some degree of envy when I say 
 that, at all events, the Scotch jurispru- 
 dence has preserved something like a 
 system in which a definite and precise al- 
 legation of the cause of action is required 
 to be set out before a litigant is allowed 
 to incur considerable expense in proving 
 what may after all turn out to be no 
 cause of action at all." See Rushton. 
 A court should declare and define issues be- 
 fore a trial is directed. Gay : 138 ; Kol- 
 lock. 
 
 The above observations relating to the 
 English judicature act should be compared 
 therewith. It is like other codes. 
 
 9. AUBURN & O. CANAL CO. V. LEITH 
 (1847), 4 Den. (N. Y.), 65; Ames, Cas. 
 Torts, 31. Cited', §§ 240, 283, Hughes' 
 Proc. 
 
 Ore tenus demurrer may be argued after an- 
 swer and plea at any time. Substance can- 
 not be waived. Auburn; Rushton ; Bart- 
 lett, post; Williams v. H. ; R. v. Wheatley ; 
 Moore v. C. ; De non apparentibus, etc. 
 
 Leading Cases. — 9. Auburn. 
 
 A special demurrer is waived by filing an- 
 swer, but ground of general demurrer may 
 be raised at any time and in any way. 
 Auburn ; Rushton ; Pom. Rem. ; Bliss, PI. 
 422, 436; Hopper; Woodside. 8 Colo. Ap. 
 514. Contra, Id. 190, 284, 285. 
 
 Demurrer and answer will not lie to same 
 statement at same time. And. Steph. PI. 
 323. Duplicity must be avoided ; incon- 
 sistency is abhorred ; one cannot raise a 
 question of law and of fact to the same 
 matter at the same time. Allegans contra- 
 ria, etc. The Statute of Ann will not per- 
 mit this. Auburn. 
 
 A general demurrer searches the whole rec- 
 ord. Auburn ; Bliss, PI. 422. And may 
 be added to on argument, and after succes- 
 sive hearings, and for a first time in an 
 appellate court. Campbell v. P. ; McAllis- 
 ter. 
 
 The ground of the general demurrer and 
 of the motion in arrest may be raised on 
 collateral attack, and even when a record 
 is pleaded for res adjudicata purposes, 
 where the rule is that the proceedings 
 must be coram judice. Bro. Max. 180, 182, 
 347, 349, 715 ; U. S. v. Perez ; McAllister ; 
 Rosen : 93. See Windsor. 
 
 10. CRASWELL V. BELANGER (1896), 
 56 Fed. Rep. 529, 6 C. C. A. 1, Fost. 
 Fed. Prac. 328a. Cited, §§ 22, 37, 78-80, 
 240, Hughes' Proc. 
 
 Cited, § 119, Gr. & Rud. 
 
 Allegations of citizenship is jurisdictional in 
 federal courts, and it must affirmatively 
 appear and be averred with oertainty. 
 Craswell; Morris v. Gilmer (1889), 129 U. 
 S. 129-131 ; Fost. Fed. Prac. 19, 352, 393 ; 
 Roberts v. Lewis (1892), 144 U. S. 653- 
 658 ; Thomas v. Board. 
 
 Alleging one is a citizen in a petition 
 for the removal of a cause is not certain. 
 It does not allege that he was a citizen 
 v/hen the suit was commenced. Craswell : 
 Cases. Verba fortius, etc. 
 
 There must be allegations and they must be 
 certain. Continental Insurance Co. ; Fost. 
 Fed. Prac. 66, 369. False allegations of 
 citizenship may be fnquired after by the 
 court. Morris ; Fost. Fed. Prac. 352. 
 
 Courts will sua sponte take notice of the 
 absence of allegations. Every presump- 
 tion is against a pleader. Craswell ; Camp- 
 bell v. P. 
 
 10a. THOMAS V. BOARD OP TRUS- 
 TEES 1904), 195 U. S. 207, §§ 22, 23, 
 38, 187, Hughes' Proc. 
 
 Cited, §§ 119, 267 Gr. & Rud. 
 
 Affirmative allegation of citizenship is es- 
 sential to confer jurisdiction upon federal 
 courts. Craswell : 10. 
 
 "Jurisdiction of a circuit of the U. S. 
 must affirmatively appear from distinct al- 
 legations, or facts clearly proven, and is 
 not to be established argumentatively or 
 by mere inference, and when jurisdiction 
 depends on diverse citizenship, such must 
 appear from sufficient averment, or of 
 facts in the record, showing such diversity 
 is fatal, and the defect can not be waived 
 by the parties, nor can consent confer ju- 
 risdiction." 
 
 De non apparentibus, etc. Frustra probatur 
 quod probatum non relevat; Verba for- 
 
24 
 
 DATUM POSTS. 
 
 Leading Cases. — 10a. Thomas. 
 
 tius; Campbell v. Porter : '2 ; Montana. 
 
 Alleging one is a citizen in a petition 
 for removal does not allege he was a citi- 
 zen when the suit was commenced. Verba 
 fortius; Thomas: 15. 
 
 Allegations for jurisdiction. See Allega- 
 tions; Kolz, 200 U. S. 76; Jackson v. 
 Ashton (in caption will not do) ; Wind- 
 sor : 1. 
 
 10b. MONTANA CATHOLIC MISSION 
 v. MISSOULA COUNTY (1905) , 200 
 118, cited, §§ 88, 96, 99, 118, Gr. & Rud. 
 
 Jurisdiction of federal courts depends on cer- 
 tain and definite pleadings. A cause of 
 action must be stated according to the 
 rules of good pleading. It must appear 
 from a written statement, in legal and 
 logical form ; otherwise there is nothing 
 for jurisdiction to attach to. See Juris- 
 diction ; Allegations : Kolze v. Hoadley, 
 200 U. S. 76 ; Thomas v. Board. Allega- 
 tions in caption will not do. Jackson v. 
 Ashton: 33 U. S. 148. See Caption. 
 
 11. VADAKIN (OB VADIKIN) V. 
 SOPBR ( 1826) , 1 Aikens ( Vt.) , 287, 
 Cas. 142-145, ext. n., And. Steph. PI. 228, 
 Smith, Conts. 196, n. Verba fortius, etc. 
 
 Aider by verdict; formal defects are cured 
 by. Rushton ; Voorhees v. Bank. But not 
 substantial. McAllister ; Hitchcock ; C. v. 
 Robey : 74 ; Dobson. 
 
 Jurisdictional facts are not supplied by in- 
 tendment. Vadakin ; Hannah ; Rushton ; 
 Borkenhagen ; J'Anson ; Van Leuven. See 
 Theory of the Case ; Arrano Case, sub, 
 Thomas v. Mackey : 16 ; Omnia prossumun- 
 tur rite, etc. 
 
 Consideration; antecedent debt. An indebted- 
 ness to three jointly will not support a 
 promise to one for his portion. See Bain- 
 bridge ; Rann ; Lampleigh. Anything more 
 than words is a consideration. Bainbridge ; 
 Depeau. 
 
 12. HITCHCOCK v. HAIGHT (1845), 7 
 III. (2 Gilm.), 604. Motions in arrest of 
 judgment; motions non obstante veredicto ; 
 repleaders, distinctions. Repleader. Gar- 
 land : 60. And. Steph. PI. §§ 109, 110 
 (Tyl. ed. 157-166). A verdict cannot help 
 an immaterial issue. Hitchcock. A motion 
 in arrest of judgment is a general de- 
 murrer, except that it is a last pleading, 
 and the party pleading it is not entitled 
 to his costs ; he loses these for his tardi- 
 ness. And. Steph. PI. 109, 110 (Tyl. ed. 
 166). Like the general demurrer, the 
 motion in arrest is never waived. It nat- 
 urally belongs to the mandatory record. 
 However, it is held that it is waived if 
 incorporated therein. 199 Mo. 159. 
 
 Omission of any material fact is a ground of 
 demurrer, as in Rushton, Cooke, Moore v. 
 C, and B. v. Wheatley. And is also a 
 ground for arrest. Debile fundamentum. 
 Collateral attack. Notes, Lampleigh ; Do- 
 vaston ; Cruikshank ; Bowman v. P. ; Pish 
 v. Cleland. 
 
 Courts that order a repleader sua sponte 
 take notice of defects in the mandatory 
 record. Garland ; Campbell v. P. 
 
 From Hitchcock much may be deduced. 
 The principle in Rushton was recognized 
 several times in Illinois in Breese's Re- 
 port ; and R. v. Wheatley was set out in 
 
 Leading Cases. — 12. Hitchcock. 
 
 full at p. 104. Bristow : 135 is fully and 
 extremely embraced. See also Israel : 83. 
 However, inconsistent cases can be found 
 in that State. See Munday : 70 : Cases. 
 Franklin Lodge. 
 
 A special verdict will . not supply an 
 omitted allegation. Goodwin, 158 Ind. 
 202; Shutte : 291 (allegations essential to 
 admit evidence). 
 
 12a. MALLINCKHODT CHEMICAL 
 WORKS V. NEMNICH (1902), 169 Mo. 
 388-399 (case in equity). 
 
 Error in sustaining a general demurrer saves 
 itself. It need not be objected nor ex- 
 cepted to. Such error is available from 
 the mandatory record ; the statutory rec- 
 ord is useless in such a case. See Roden; 
 Missouri ; Chitty ; Andrews v. Lynch, 27 
 Mo. 167. The coram non judice proceed- 
 ing need not be excepted to. Harkness: 
 152 : Cases. 
 
 Legal conclusions are surplusage and void 
 ab initio. They are not a matter for 
 aider ; they cannot be aided by a denial, 
 nor by pleading over. "The allegation of 
 a conclusion of law raises no issue, need 
 not be denied, and its truth is not ad- 
 mitted to the complaint containing it." 
 Loc. cit. 397, Institute v. Bitter, 87 N. T. 
 250, S. P. ; U. S. v. Cruikshank; 205 U. S. 
 257. 
 
 A pleader pleads at his peril, he cannot 
 cast the onus upon his adversary, to move 
 to make more certain or definite, or to 
 demur, if any matter of substance is 
 omitted. Verba fortius, etc. ; Dovaston : 
 217 ; Clark v. Dillon, 97, N. T. 370. Facts 
 not legal conclusions must be pleaded. 
 Hanford : 86 ; Green : 90. 
 
 Reasons for certainty ; the test for. S. 4 
 Hughes' Proc. C. v. Robey, Guedell : 74, 
 74a ; Dovaston : 217. 
 
 Limitation of liberal construction. Dob- 
 son : 232a ; Munchow, 96 Mo. Ap. 553. 
 Omission of material allegation fatal. 
 Robinson, 105 Mo. 567; 102 Mo. Ap. 458; 
 Weil, 69 Mo. 281 ; Andrews v. Lynch 
 (1858), 27 Mo. 167 (the code establishes 
 no new rule). 
 
 A motion in arrest is to be considered as 
 a demurrer. 1 Chit. PI. 716. Reasons for 
 this are discoverable in Mallinckrodt : 12a. 
 Defects of substance can not be waived. 
 Codes reaffirm this rule again and again. 
 Sto. PI. 10. Discussions relating to 
 this are confused. See Rushton : 5 : Cases. 
 
 12b. RODEN v. HELM (1905), 192 
 Mo. 71. 
 
 Errors in the mandatory record {."record 
 proper") a court sua sponte takes notice 
 of regardless of objections and exceptions. 
 Campbell v. Porter. Allegata et probata 
 must correspond. Frustra probatur quod 
 probatum non relevat. 192 Mo. 71. 
 
 A reply and issue can be waived. Pp. 83-85: 
 Cases. Certum est quod, etc., cited and 
 applied. 
 
 Admissions in pleadings may be contradicted 
 it seems. Cass, 188 Mo. 1. See Bradbury : 
 35. 
 
 Construction of pleadings; liberal rule ap- 
 
DATUM POSTS. 
 
 25 
 
 Leading Cases. — 12b. Roden. 
 
 plied. Brewing Co., 187 Mo. 367 ; Rogers, 
 186 Mo. 248 (general demurrer may be 
 waived). See Missouri. 
 
 The trite and familiar rules are often 
 quoted in Missouri but they are not rea- 
 soned from, and consistently applied to, 
 and from, and for the conserving princi- 
 ples. Many decisions are equivocal and un- 
 certain, e. g., it is inconsistent to say that 
 the court will sua sponte notice error on 
 the mandatory record and at the same time 
 hold that the general demurrer can be 
 waived ; also that the motion in arrest can 
 be waived and that it must appear in 
 the statutory record. 199 Mo. 159 ; Mal- 
 linckrodt. 
 12c. FISH V. CLELAND (1864), 33 111. 
 237-245. Huffc. & W. Cas. Conts., 288 ; 
 Waugh v. Robbins, id. 182 ; Bush v. Con- 
 nelly, id. 447 ; Lang v. Metzger, 206 111. 
 475, 488. 
 Cited, §§ 11, 201, Gr. & Rud. 
 Allegata et probata must correspond. The 
 latter cannot be considered without the 
 former. Evidence without allegations is 
 surplusage ; the latter cannot be supplied 
 from the evidence. "And you must prove 
 the charge as laid" is from the civil law. 
 These words met the approbation of Paul 
 when Festus spoke them in his behalf. 
 Frustra probatur quod probatum non 
 relevat. 
 
 court is bound by its record. It cannot 
 rest judgment upon matter that arises 
 from evidence only. Israel v. Reynolds 
 (111.) ; Farrar v. Davenport (111.) ; Waugh ; 
 Bush; Sto. PI. 10. 
 
 Pleadings are the juridical means by 
 which a court is invested with jurisdic- 
 tion of a subject-matter to adjudicate it. 
 Montana ; Brown v. City ; Fish ; Smith v. 
 Burrus (Mo.) ; Chitty v. R. R. (Mo.). See 
 Allegations. Contra, Weems (Texas). 
 
 Cf. Franklin Union No. 4 v. P., 220 
 111. 355, 77 N. B. 176, 110 Am. St. 248- 
 274; O'Brien v. P., 216 111. 354, 108 Am. 
 St. 219. 
 
 A court without its record is without 
 jurisdiction. Usurpation vitiates. See 
 Dictum ; Horan v. Wahrenberger ; Mun- 
 day : 79 : Cases. 
 
 Variance can be waived. Dorn v. Farr. 
 12d. PEOPLE'S BANK v. CALHOUN 
 
 (1880), 102 U. S. 256. 
 A matter not juridically presented cannot 
 be judicially considered, e. g., a cause can- 
 not be removed from a state to a federal 
 court by stipulation which does not show 
 the jurisdictional facts relating to the 
 subject-matter and the citizenship or char- 
 acter of the parties. 102 U. S. 261. Camp- 
 bell v. Porter : 2. 
 Consent will not confer jurisdiction of a sub- 
 ject-matter. 102 U. S. 256, 260-261. 
 Thomas v. Board. 
 13. BEARDSLEY v. SOLC-E (1894), 143 
 N. Y. 160, 38 N. B. 453, 42 Am. St. 
 707, n. 
 Jurisdiction of subject-matter can not be 
 
 waived. Campbell ; Springer. 
 Consent will not confer jurisdiction of sub- 
 ject-matter. If there is want of authority 
 
 Leading Cases.— 13. Beardsley. 
 
 to determine the subject-matter of the 
 controversy, an adjudication upon the 
 merits is a nullity and does not «ven es- 
 top the assenting party. One can not 
 lawfully consent to a thing forbidden by 
 public policy. Sto. PI. 10 ; Hughes' Conts. 
 11-18. See Jurisdiction. One cannot 
 agree that he is a delict, when he is not. 
 Fabula; Jurisdiction. 
 
 A matter must be adjudicated at the 
 right forum to meet requirements of the 
 conserving principles of procedure. See 
 Jurisdiction. 
 
 14. VAN LEUVEK V. LYKE (1848), 1 
 N. Y. 515, 49 Am. Dec. 346, 1 Thomp. 
 
 . Neg. 188. 
 
 Negligence; animals; liability of owner for. 
 May ; Loomis ; Sic utere. 
 
 Cited, § 30, Hughes' Proc. ; §§ 237, 278, Gr. 
 & Rud. 
 
 Omitted allegations. Cruikshank, L. C. 232. 
 Cannot be supplied from other parts of 
 the record, e. g., the findings. Hitchcock. 
 2 Cyc. 689, 691 ; 9 Id. 728. See Aider. 
 
 Omitted allegation is fatal. Declaration for 
 mischief done by an animal of a domestic 
 nature, which does not allege either that 
 the animal trespassed upon plaintiff's 
 lands, or that the defendant knew of its 
 vicious propensity, is bad. And this ob- 
 jection is not waived ; it may be raised 
 at any time. It may be raised for the 
 first time upon appeal. Campbell ; Rush- 
 ton ; Cruikshank. Walker v. Turner ; Rus- 
 sell v. Shurtleff; Thomas v. Mackey ; R. 
 v. Waters. See Waiver. 
 
 15. THOMAS v. MACKEY (1877), 3 
 Colo. 391 (under common law). S. P. as 
 Rushton, Bristow and Shutte, Sto. PI. 10, 
 26, 27, 28, 257, 259 ; Beach Eq. Prac. 99. 
 
 Cited, § 30, Hughes' Proc. ; § 237, Gr. & 
 Rud. 
 
 This case is much opposed to other cases 
 by the same court. We may gather from 
 Colorado cases that the mandatory record 
 is a bulwark of protection on the one 
 hand, or that its uses are to enable courts 
 to construe it into a climax of absurdi- 
 ties on the other. 
 
 Thomas is surpassed in strictness by 
 Robinson. Cf. Jansen, 8 Colo. App. 38, 
 40 ; Woodside, id. 514 ; Colo. Co., 8 Colo. 
 App. 541; Fairbanks, id. 190, 193 (al- 
 legations aided and supplied from proof) ; 
 Holman, id. 284, 285 (pleadings waived — 
 departures upheld — mandatory record sub- 
 stituted by matter aliunde). 
 
 Parties cannot contract — stipulate in 
 writing — for matter that should appear 
 in the mandatory record. Tucker, 7 Colo. 
 62, 68. What they cannot do expressly — 
 directly — formally — they may neverthe- 
 less do by waiver, if formally signified. 
 Hume. 
 
 Nothing can be consented to that is 
 coram non judice. Filley, 4 Colo. 109'; 
 Kirtley, 4 Colo. 111. S. T., Blair: 170. 
 (Proceedings in vacation void.) A record 
 must be sufficient for res adjudicata pur- 
 poses. Moynahan v. P. Contra: Haley v. 
 Elliot, 20 Colo. 383-384. 
 Consent cannot supply allegata. Thomas ; 
 
26 
 
 DATUM POSTS. 
 
 Leading Cases. — 15. Thomas. 
 
 Deitsch; Fulton Co., 6 Colo. App. 554. 
 (Allegations and issues essential.) 
 
 But a plea ot res adjudicata may ap- 
 pear from irrelevant argument in the su- 
 preme court, and from cases it had just 
 decided, when from the opinions in these 
 it is clear there was no matter before 
 the court from which res adjudicata could 
 arise, and also that fundamental require- 
 ments had been disregarded — that the 
 court refused to open the record (Clyde 
 Mattox v. U. S.) and that there was no 
 coram judice proceedings that would or 
 could support a claim of res adjudicata or 
 "due process of law." Haley, 20 Colo. 
 383, 384. See Hume ; Breeze ; Rensberge.r. 
 Russell v. Shurtleff (Colo.). Hughes' 
 Proc. 
 
 "The judgment cannot be sustained because 
 it was not warranted by the pleading." 
 Jansen ; Gallup, 11 id. 308 ; Tucker, 7 
 Colo. 68 ; Legere, 17 Colo. App. 472 (no 
 exception necessary to entry of judgment 
 on a verdict). 
 
 16. BOBINSON MINING' CO. V. JOHN- 
 SON (1889), 13 Colo. 358, 361, 362. 
 (Under code.) 
 
 Cited, § 30, Hughes" Proc. ; § 237, Gr. & 
 Rud. 
 
 An allegation that a buyer contracted 
 for charcoal does not include the fact 
 that he agreed to accept and pay for it. 
 Here the greater did not contain the less. 
 See Spieres, sub, Rushton ; Dobson. 
 
 Allegations must exist, they cannot be 
 waived. Omission of may be raised on 
 appeal, and there for the first time. 
 Thomas, 14 Colo. 254 (right rule). 
 
 Robinson was immediately denied. The 
 same judge denounced its rule in Johnson 
 v. Bailey, 13 Colo. 59. See Hume : Cases. 
 Colorado cases are sometimes surpass- 
 ingly strict, and very repugnant to liberal 
 views. Hume : cases. To illustrate. In 
 an indictment for murder the name of 
 the murdered man, Fitzpatrick, appeared 
 eight times. In two places it was spelled 
 "Fitz Patrick." After verdict, this was 
 held a fatal variance. Moynahan. 
 "Michael J." is not "Mike J." Sullivan 
 v. P. (1889), 6 Colo. App. 458; Sault v. 
 P. (1893), 3 Colo. App. 502. Contra: 
 Pitsnogle v. C. (Va.) ; Marr v. Wetzel 
 (1876), 3 Colo. 2 (correct rule of idem 
 sonans) . 
 
 One is entitled to a certain record for res 
 adjudicata purposes. 3 Colo. 373. See 
 2 Colo. 88 ; Hume : cases. If the improper 
 use of an upper case "p" for a lower case 
 "p" would destroy a plea of res adjudi- 
 cata, then we are enabled to see how 
 strict its rules are. Truly, pleading must 
 exist, and can not be waived. 
 
 Jurisdictional facts must appear with cer- 
 tainty. P. v. Brown : 127 ; Contra : 
 cases ; Liss, 2 Colo. 88. Omitted allega- 
 tions are fatal and can not be supplied 
 by aider. Robinson ; P. v. District Court. 
 A court acquires jurisdiction of a subject- 
 matter from its pleadings. The statement 
 of claim must be definite and certain to 
 authorize the court to proceed. Without 
 
 Leading Cases. — 16. Robinson. 
 
 such statement prohibition will issue and 
 arrest the proceedings. P. v. District 
 Court (1899), 26 Colo. 386 (injunction of 
 district court to restrain gambling pro- 
 hibited by supreme court). See Jueisdic- 
 tion. 
 
 17. VAN CLEAF v. BURNS (1890), 118 
 N. Y. 549, Tiedeman, Cas. Real. Prop. 63. 
 
 Estoppel of record; res adjudicata must be 
 pleaded. 
 
 "Neither the nature nor the effect of the 
 judgment of divorce granted by the court 
 of Illinois, in favor of David Van Cleaf 
 against the plaintiff, appears in the rec- 
 ord before us, except that the bond of 
 marriage between them is stated to have 
 been dissolved upon the- ground that she 
 had wilfully deserted and absented her- 
 self from her husband without reasonable 
 cause for the space of more than two 
 years prior to the commencement of the 
 action." 118 N. Y. 553. "We cannot 
 presume it was more than a temporary 
 or conditional divorce from such a plead- 
 ing." 
 
 See Stokes sub, Wright v. Griffey: 28. 
 Verba fortius, etc.; Sto. PI. 665; 190 
 U. S. 546. Res adjudicata must be 
 pleaded. See Id. : Wright. Conclusions of 
 law are surplusage and need not be 
 pleaded ; they are void and are not aided. 
 See Surplusage. Foreign statutes must 
 be pleaded, and, if denied, proved. 118 
 N. Y. 553, Whart. Ev. 288, 300. Answers 
 must be pleaded with certainty like com- 
 plaints. J'Anson ; Pom. Code, 546, 597- 
 600. Ambiguum. 
 
 18. FLETCHER V. TEE WALL A (1883), 
 60 Miss. 963. Cited, §§ 185, 314, Hughes' 
 Proc. ; § 296, Gr. & Rud. Assessments 
 must be aptly made ; assessor may take 
 advantage of his own assessment, if not 
 made in time. Fletcher ; Cool. Tax. ; 
 Campbell v. Springer ; Beardsley. An as- 
 sessment, if void as to one, is for all. There 
 are limitations of waiver — estoppel — in all 
 judicial and gttasi-judicial proceedings. 
 Consent cannot confer jurisdiction of 
 subject-matter. See Consensus. § 314, 
 Hughes' Proc. Allegans, etc. 
 
 An affidavit is jurisdictional in replevin, 
 but a plaintiff cannot object to its omis- 
 sion. Cobbey, Replev. 528 (only a de- 
 fendant can object to). 
 
 19. B. v. WHEATLEY (1761), (Mans- 
 field), 2 Burr. 1125, 1 Wm. Bl. 273, 3 
 Crim. Def. 100, n., 1 Lead. Crim. Cas. 
 (B. & H.) 1-34 n. ; Beale, Crim. Cas. 1, 
 Clark, Crim. Cas. 3, Bish. C. L., Cool. 
 Torts, 95, 3 Gr. Ev. 1, 2, 13, 24, 1 Bish. 
 Crim. Proc. 326 ; stated and followed. 
 Wright V. P. (1825). Breese (111.), 102; 
 also in many other states. See tables of 
 citations. 
 
 Cited, §§ 22, 23, 26, 90, 100, Hughes' 
 Conts. ; Hughes' Proc. 
 
 Cited, §§ 11, 24. 118, 119, 122, 143, 152. 
 159, 163, 192, 202, 203, 222, 225, 232, 
 237, 278, 289a, 292, 294, Gr. & Rud. 
 
 Whcatley stated: Wheatley was a brew- 
 er and sold what he called eighteen-gal- 
 lon kegs of beer. One Webb bought these 
 kegs upon that supposition, with the 
 kegs plainly before him and open to meas- 
 urement. But he did not measure them 
 
DATUM POSTS. 
 
 27 
 
 Leading Oases. — 19. Wheatley. 
 
 until after their delivery and payment 
 therefor. Then he found they did not 
 contain eighteen gallons, as represented, 
 but only sixteen gallons. He complained, 
 and Wheatley was indicted and convicted. 
 The prosecutor and prosecuting attorney, 
 the grand jury, petit jury, court — all 
 thought Wheatley was guilty — that he 
 had committed a crime. But on appeal 
 he was cleared and vindicated, upon the 
 ground that Webb bought upon inspection, 
 with his eyes open ; or, in other words, 
 be bought Caveat emptor. Gordon v. Par- 
 mele (Mass.) Sub Caveat. 
 
 The Wheatley Case may justly be re- 
 garded as one of the greatest, for it was 
 decided by Mansfield, the lawyer of the 
 ages ; and besides, it profoundly permeates 
 government, as it fixes its limitations and 
 the conditions under which it may prose- 
 cute for crime, or, in a wider sense, the 
 essential conditions upon which jurisdic- 
 tion may be employed and proceeded with 
 for certainty and a definite theory. It 
 involves principles that safeguard tremend- 
 ous interests. It is a case that illustrates 
 how the technicalities of the law are its 
 safeguards as already observed. Windsor : 
 1. It is not alone a dominant case upon 
 procedure, but it is equally so upon tort 
 and contract. It is a case that fixes 
 boundaries for many leading subjects, and 
 particularly procedure, contracts, crimes 
 and torts. Of course all such cases pro- 
 foundly involve construction. Concordare 
 leges legibus est optimu's interpretandi 
 modus. P. v. Turner. 
 
 It seems proper to call attention to a 
 dissensus of authors as to the most ap- 
 propriate case or topic to present the 
 principles in Wheatley, and therefore to 
 the fact that : — 
 
 One eminent author and professor ex- 
 cludes Chandelor and to elucidate its prin- 
 ciple selects Pasley, while another selects 
 Chandelor and excludes Pasley; and still 
 others elucidate the principle under R, v. 
 Wheatley (Bennett & Heard's Lead. Crim. 
 Cas.), while others choose Caveat emptor 
 and its cognate maxims. Others have de- 
 veloped those old roots and the trunk of 
 the subject under "late" and "modern 
 cases" and "American cases," until vol- 
 umes upon the little conception of Caveat 
 emptor in Wheatley amount to scores of 
 annotated cases, great encyclopedias and 
 digests. And after all, the elucidation of 
 Caveat emptor teaches it briefly, yet clear- 
 ly and impressively, but as the seed is 
 to the plant. Of cases, Chandelor broadly 
 introduces it, and so Mr. J. W. Smith 
 thought; and another eminent writer and 
 professor singularly chose that case to 
 exploit the principle, and omitted all men- 
 tion of its modifications, and of course 
 Pasley. Still further are given "the mod- 
 ern law of contracts," in the preface of 
 which we are informed a decided prefer- 
 ence will be given the well-considered 
 cases of recent years. Above and beyond 
 this view, however, such cases as Chande- 
 
 Leading Cases. — 19. Wheatley. 
 
 lor and PaMey are cited, thereby adding 
 much to the value of the work referred 
 to, exactly as such citation improves all 
 works. 
 
 Another recent work Informs us that 
 its citation will be singular, and that it 
 will cite both the "leading" and "ruling" 
 cases. Looking from Smith's Leading 
 Cases, and the English Ruling Cases, the 
 distinctions between those supposed classi- 
 fications are not clear, for the same cases, 
 are found in each of those works, and_ 
 therefore, here it is a "leading case" and 
 yonder it is a "ruling case." Research 
 must go deeper than labels to avoid confu- 
 sion. 
 
 Elsewhere are unfolded various elucida- 
 tions of the contract principle in Wheat- 
 ley. See Caveat emptor; Chandelor; Pas- 
 ley: 374, 375. 
 
 The foregoing views will remind the^ 
 reader of what is elsewhere observed of 
 Qui primum peccat ille facit rixam, which 
 is not only the burden of the Squib Case,. 
 but of ajl the cognate cases there men- 
 tioned. Still we are taught that cases 
 introduce new rules or principles and that 
 the "late," the "modern" and the "Ameri- 
 can case" constitutes the best -matter for 
 instruction. Indeed, one learned writer 
 and professor writes that the "Squib Case" 
 also has had its day, while others are- 
 busy reprinting it and representing it for 
 its great and world-wide worth, and as an 
 equal in value and importance to R. v. 
 Wheatley or Keech v. Sandford. See il- 
 lustration of the river under Equity, Gr. 
 & Rud. 
 
 Whatever error exists in writing and 
 teaching the law can be judged from such 
 contentions and conflicting views as last 
 mentioned. Beyond these are other con- 
 flicts to he considered. See De non appar- 
 entibus, etc. Theory of the Case ; 
 Hume ; Literature. 
 
 Starting with Caveat emptor, and not- 
 ing the Chandelor, the ' Pasley and th& 
 Laidlaw Cases, enough can be gathered in_ 
 a few minutes to understand the views- 
 of any one familiar with either the maxim. 
 or any of those cases. Cases merely 
 illustrate the application of a maxim. Oa 
 the higher and broader field there is no. 
 room for confusion. 
 Wheatley may be cited to the point that 
 a crime must be charged in an indictment. 
 C. v. Child (1832), 13 Pick. (Mass.) 198, 
 Shaw, J.; C. v. Hunt (1842), 4 Met. 
 (Mass.) Ill, 38 Am. Dec. 346; Hunts- 
 man v. S. : 231. And such is Bartlett 
 and Rushton. Mansfield held the same 
 in the latter case, and in 1820 Kent 
 quoted nearly all of Rushton and followed 
 it in Bartlett and then Shaw, supra. Story, 
 PI. 10, and in other sections, and codes 
 reaffirm this rule, which is elsewhere 
 noted. The charge in some certain form 
 is essential. Hurtado ; U. S. v. Pettibone, 
 sub, Conspiracy ; Cruikshank. To charge' 
 fornication it must be averred that each 
 party was unmarried. Bennett v. S- 
 
28 
 
 DATUM POSTS. 
 
 Leading Cases. — 19. Wheatley. 
 
 (1S97), 103 Ga. 66, 68 Am. St. 77, n. A 
 crime must be shown within the statutory 
 period to confer jurisdiction upon a justice 
 to protect him. Vaugh v. Congdon (1885), 
 56 Vt. Ill, 58 Am. Rep. 758, 761, Cool. 
 Torts, 200, Throop, Pub. Off. 
 
 Jurisdictional facts must affirmatively ap- 
 pear. They are not presumed nor in- 
 ferred nor supplied by intendment nor 
 liberal construction. Huntsman : cases ; 
 Cruikshank; Bowman v. P. (a very in- 
 structive case). Debile fundamentum fallit 
 opus. Bro. Max. 180. 181, 715. 
 
 Habeas corpus will release one imprisoned 
 for playing baseball, where that is no 
 crime. 80 Am. St. 638, sub, Ejusdem 
 generis. 
 
 Pleadings cannot be waived. Windsor ; Gar- 
 land ; Hurtado ; Munday ; Campbell ; notes, 
 Lampleigh. Every presumption against a 
 pleader. And this rule never changes. 
 Dovaston ; Moore v. C. Same point in 
 Lipschitz v. P. (1898), 25 Colo. 261 
 (guilt overwhelmingly clear, but indict- 
 ment fatally bad) ; and this rationale was 
 applied in ^Robinson. Hume ; Whitesides 
 v. P. (1819), Breese (111.), 21 (conclu- 
 sions of law will not do) ; Acts of the 
 Apostles,- 22-26 ; Green : 90. 
 
 Plea of guilty only admits facts well pleaded. 
 Grossman, 30 Or. 478, 60 Am. St. 832, n. 
 
 A crime must be charged, that the post litiga- 
 tion, the appellate procedure, the former 
 jeopardy, res adjudicata uses of the record 
 may not fail. 1 Gr. Ev. 63, 2 id. 7, 3 id. 
 10, Wheatley ; R. v. Vaux, L. C. 69. 1 
 Bish. Crim. Proc. 2, 4, 19, 77, 88, 319, 
 321, 331, 498, 505, 544, 1285, 1291; C. 
 v. Hunt ; Moore v. C. ; Huntsman v. S. 
 (instructive case) ; Cruikshank. 
 
 An indictment must charge a crime, or the 
 court acquires no jurisdiction upon which 
 it can proceed and take evidence. Wheat- 
 ley ; Moore v. C. ; R. v. Goldsmith ; Wind- 
 sor ; Munday ; 1 Bish. Crim. Proc. 326, 
 418, 505, 544, 1285, 1291. See Jueisdic- 
 tion ; Quod ab initio, etc. An authority 
 must appear. A court's record is the 
 charter of its authority ; a court is bound 
 by it, as is the attorney in fact by his 
 power of attorney. §§ 7-12, Hughes' 
 Proc. These rules arise from the conserv- 
 ing principles of procedure. See Identifi- 
 cation. They apply to all cases alike, 
 whether civil or equitable. Criminal cases 
 are not alone technical. 
 
 <Consent cannot confer jurisdiction of subject- 
 matter. 1 Bish. Crim. Proc. 96 ; Sto. PI. 
 10; Bro. Max. 180, 182, 601, 715. See 
 Jurisdiction. Dc non apparentibus, a 
 maxim of the civil law. Acts of the Apos- 
 tles, chaps. 23, 26. Codes reaffirm the 
 above, and also provide that filing an an- 
 swer will not waive the omission of ma- 
 terial facts. These can be waived under 
 no system. Wheatley ; Rushton. 
 
 A motion in arrest of judgment is not 
 waived by a plea of guilty ; for consent 
 ■cannot confer jurisdiction. A motion in 
 arrest will lie to a defective indictment. 
 Wheatley ; Cruikshank ; 1 Bish. Crim. 
 Proc. 1287-1293. 
 
 Leading Cases. — 19. Wheatley. 
 
 Issues are essential to authorize a trial. 
 Munday ; Crain. 
 
 One may make a fool of another if he can. 
 J., without false tokens, pretended he was 
 B.'s agent, when he was not. Upon the be- 
 lief that he was such agent he got £20. 
 This was held not indictable. R. v. Jones 
 (1704), 1 Salk. 379. 
 
 Public and private wrongs. What are in- 
 dictable cheats, swindles, frauds, tricks 
 and pretenses. Wheatley, 1 Lead. Crim. 
 Cas. (B. & H.) 1-34; P. v. Johnson. 
 
 20. R. V. GOLDSMITH (1875), L. R. 2 
 C. C. R. 74, 12 Cox, C. C. 479 ; stated, 
 8 Rul. Cas. 115 ; cited, 2 Bish. C. L. 
 1137. 
 
 Cited, § 106, Hughes' Proc. ; § 56, Gr. & Rud. 
 
 Goldsmith stated : False pretenses plead- 
 ings; aider by verdict. Indictment for re- 
 ceiving stolen goods by means of false pre- 
 tenses, which failed to set out the means. 
 On motion in arrest of judgment, this 
 omission was held cured by the verdict; 
 Dobson, 232a. 
 
 Limitations of liberal construction: Where 
 there is any defect, imperfection or omis- 
 sion in any pleading, whether in substance 
 or in form, which would have been a fatal 
 objection upon demurrer, yet, if the issue 
 joined be such as necessarily required on 
 the trial proof of the facts so defectively or 
 imperfectly stated or omitted, and without 
 which it is not to be presumed that either 
 the judge would direct the jury to give, or 
 the jury would have given, the verdict, 
 such defect, - imperfection or omission is 
 cured by the verdict by the common law. 
 Bro. Max. 181, 602 ; 1 Gr. Ev. 19. See 
 U. S. v. Mills. Such defect, if any, is cured 
 by verdict. R. v. Waters ; R. v. Waver- 
 ton : 70, 71 ; Rushton ; Bowman v. P. 
 
 Pleadings essential. 2 Gr. Ev. 7 ; 3 id. 10 ; 
 1-83. 
 
 Allegations ; aider by verdict. Same rule ap- 
 plies in both civil and criminal cases. 
 Notes on Saunders by Williams, p. 261 ; 
 R. v. Aspinall (1876), 2 Q. B. D. 48, 13 
 Cox, C. C. 563 ; cited, 2 Bish. C. L. 191 ; 
 R. v. Stroulger (1886), 16 Cox, C. C. 85: 
 cases. Bristow : 135 ; Wheatley ; Munday; 
 8 Rul. Cas. 107-149, n. De non apparen- 
 tibus. Dobson : 232a. 
 
 21. MOOSE v. C. (1843), 6 Met. (Mass.) 
 243, 39 Am. Dec. 724, 2 Lead. Crim. Cas. 
 (B. & H.) 284. 
 
 Cited. §§ 6. 19, 27, 28, 29, 30, 52, 62, 72, 
 78, 80, 82, 90, 97, 105, 106, 153, 176, 
 186, 190. 191. 215. 
 
 Cited, §§ 113, 119, 143, 159, 202, 203, 223, 
 237, 278, 294, 312, Gr. & Rud. , Hughes' 
 Proc. 
 
 Moore stated : Alleging that Moore did com- 
 mit the crime of adultery, with Mary Stu- 
 art, she being a married woman, and hav- 
 ing a husband alive, charges no crime. 
 Every presumption is against a pleader, 
 and Mary Stuart may have been Mrs. 
 Moore, Moore's own wife. The wife may 
 have her own distinctive name ; it may 
 not be Moore. Therefore the pleading is 
 uncertain. 
 
 A crime must be described. Moore ; Hunts- 
 man (most instructive cases) ; Cruikshank, 
 
DATUM POSTS. 
 
 23 
 
 Leading Oases.— 21. Moore. 
 
 L. C. 232; Wheatley; Sault \. P. (1893), 
 3 Colo. Ap. 502 ; Lipschltz v. P., sub, 
 Wheatley ; s. p., Rushton ; . R. v. Gold- 
 smith ; R. v. Waters ; R. v. Waverton ; R. 
 v. Vaux ; L. C. 69-71 ; C. v. Eastman ; C. 
 v. Bean. 
 
 Every presumption against a pleader. Moore ; 
 Dovaston ; Verba fortius, etc. ; Walker v. 
 Turner ; 118, Cruikshank ; Harvey v. 
 Brydges; McCarty v. Hotel Co. (1898), 
 144 Mo. 397, 402 (Code— Instructive 
 Case). 
 
 Analogously a bill of exceptions must 
 affirmatively state that all the evidence is 
 incorporated therein. Bates ; Richardson 
 v. St. Joseph Co. (important appellate pro- 
 cedure rule). 
 
 From the return of the indictment into 
 court thereafter for all time, in every 
 court, the question of whether or not a 
 crime is charged is always raised. An 
 amicus curiae may suggest it, and the court 
 is presumed to have looked, taken notice, 
 inquired and considered. Bloom ; Campbell 
 v. P. ; notes to Lampleigh. 
 
 Legislatures cannot abolish certainty. C. v. 
 Eastman: cases; Brown v. P. (1874), 29 
 Mich. 232 ; Dovaston ; Huntsman. Verba 
 fortius, is a first principle of the unwritten 
 constitution. It can not be reversed in a 
 constitutionalism. Every presumption 
 against the accused is the rule of the bar- 
 barous and inquisitorial. 64 Cent. L. J. : 
 169-174. 
 
 Alternative pleadings are void. Pain ; Do- 
 vaston. See Repugnancy. 
 
 22. C. v. EASTMAN (1848), 1 Cush. 
 (Mass.), 189, 48 Am. Dec. 596-610, n., 
 
 1 Lead. Crim. Cas. (B. & H.) 1st ed. ; 
 cited, 1 Bish. C. L. 432, 536, 592, 1041, 
 
 2 id. 178, 193, 201, 202, 206, 214, 3 Gr. 
 Bv. 15, 89, 90, 2 Bish. Cr. Proc. 213. 
 See Cruikshank : 232. 
 
 Conspiracy; pleadings. Facts and circum- 
 stances must be pleaded as in fraud. East- 
 man ; J'Anson ; Ex dolo malo; Russell v. 
 Mann ; Williams v. Hingham. 
 Elements of the offense. Pettibone v. V. S. 
 (1892), 148 U. S. 197; 1 Bish. C. L. 592, 
 2 id. 169, 240a; Hutchins v. Hutchins ; 3 
 Gr. Ev. 89-99 ; 2 Bish. Cr. Proc. 202-245. 
 See Conspiracy. Conspiracy to defame one 
 is indictable. 1 Bish. C. L. 591. 
 Facts, not conclusions, must be pleaded. Cer- 
 tum est quod, etc. ; Green ; J'Anson. See 
 Conclusions. 
 Homicide ; means- must be set out; also in 
 forgery. U. S. V. Watkins, sub, R. v. 
 Bryan; C. v. Holmes (1892), 157 Mass. 
 233, 34 Am. St. 270, n. ; Schaffer v. S., 22 
 Neb. 557, 3 Am. St. 274, n. ; Moore v. C. 
 Equitable exceptions to Statute of Frauds ; 
 facts must be pleaded. Lyon ; Lester. 
 'These are the most refined and technical 
 of cases. Fraud ; same rule. Ex dolo 
 'malo, etc. Answers in defamation. J'An- 
 son. 
 
 Adultery must be particularly and cir- 
 cumstantially alleged in divorce proceed- 
 ings ; all facts must appear with certainty. 
 Marsh ; 16 N. J. Eq. 391, 84 Am. Dec. 
 164-168, n. . cases. 
 
 Leading Cases. — 22. Eastman. 
 
 Legislature cannot abolish certainty in in- 
 dictment. Huntsman ; Cruikshank ; Cool. 
 Const. Lim. 327 ; Brown v. P., 29 Mich. 
 232 ; Bristow ; Moore : 231, 232, 135, 21. 
 
 Generally: Green : 90 (Code). Omne majus. 
 See Ceetainty. 
 
 23. S. v. THUBSTIN (1853), 35 Me. 205, 
 58 Am. Dec. 694-697, n. 
 
 Cited, §§ 29, 153, 186, 190, 191, Hughes' 
 Proc. ; § 223, Gr. & Rud. 
 
 Due process of law; essential allegations. A 
 crime must be charged upon the record be- 
 fore there can be a conviction. Thurstin ; 
 Moore v. C. ; U. S. v. Perez ; 'Williams v. 
 Hingham. 
 
 Material facts and circumstances em- 
 braced in the definition of an offense must 
 be stated ; these cannot be supplied by in- 
 tendment or implication. Pettibone v. U. 
 S. ; Conspiracy ; Cruikshank ; Moore v. C. ; 
 2 Gr. Ev., § 7, 3 id. § 10. De non appar- 
 entibus, etc. 
 
 Jurisdictional facts must be alleged upon the 
 record, and with certainty. Campbell v. 
 Porter ; Wheatley ; Moore v. C. ; Russell v. 
 Mann ; Munday ; U. S. v. Perez ; R. v. Van- 
 dercomb ; Bristow. 
 
 24. SPRINGER. V. SHAVENDER (1896), 
 118 N. C. 33, 23 S. E. 976, 54 Am. St. 
 708, n., 33 L. R. A. 772, End. Stat. 447 : 
 Kleber on Void Judicial and Execution 
 Sales. See Scott v. McNeal. 
 
 A court must have jurisdiction of person and 
 subject-matter. See Coham Judice ; Wind- 
 sor ; Starbuck ; Campbell v. Porter ; Gar- 
 land v. Davis ; Scott v. McNeal, overruling 
 5 Wash. 309, 34 Am. St. 863 (a court can- 
 not administer upon and sell a living 
 man's estate. Decree of probate void, if 
 made without jurisdiction) ; Smith v. 
 Wildman (1896), 178 Pa. 245, 56 Am. St. 
 760, n., Van Fleet, Coll. Att., Brown, Jur- 
 isdic. 123-146: Can- v. Brown (1897), 20 
 R. I. 215, 78 Am. St. 855 : cases ; Fabula 
 non judicium : Taylor : 219a. 
 
 Fundamental facts are essential to sup- 
 port a sale. Douglas v. Whiting ; Ran- 
 som : 122 ; Clem. See Collateral At- 
 tack. 
 
 Statutes cannot authorize an administration 
 upon the estate of a living man. Sub, Tay- 
 lor. There is no wronged man before the 
 court. But see 5 Wash. 309, 34 Am. St. 
 863 : cases ; Springer ; Cummins v. Read- 
 ing (1903), 206 Pa. 469, 98 Am. St. 790. 
 
 A cause of action must exist in fact. Fabula 
 non judicium. Weltmer. And it must ap- 
 pear from the right record, 2. Planing 
 Mill Co. v. Chicago ; People's Bank v. Cal- 
 houn. 
 
 25. OUIBAII V. MOREWOOD (1803), 3 
 East, 346, 7 R. R. 473, 5 Mor. Min. Rep. 
 484 ; Thayer, Cas. Ev. 556 ; Cromwell. S. 
 P. in Strutt v. Bovingdon (1803), 5 Esp. 
 58, 8 R. R. 834 ; 6 Mews' E. C. L. 366, 
 564. Cited, p. 9 ; §§ 4, 22, 26, 29, 37, 
 120-145, 242, Hughes' Proc. 
 
 Cited, §§ 91, 171, 173, 182, 193, 223, 270a, 
 Gr. & Rud. 
 
 Issue decided in former case is res adjudi- 
 cata. Outram ; Cromwell ; Markley v. P. 
 (1898), 171 111. 260, 63 Am. St. 234; Sto. 
 PI. 791 ; Mondel L. C. 77 ; New Orleans, 
 
30 
 
 DATUM POSTS. 
 
 Leading Cases.— 25. Outram. 
 
 167 U. S. 371, 397 (42 L. ed. 202 : cases, 
 stating Cromwell) ; So. Pac. R. R. v. U. S. 
 1897), 168 U. S. 1-66 (42 L. ed. 355, 
 377: cases, ext. n.). S. P. Smith v. Sher- 
 wood (1822), 4 Conn. 276, 10 Am. 
 Dec. 143; stated, 32 L. R. A. 248; 2 
 Sm. L. C. 771, 7th ed. ; Gray v. Dougherty 
 (1864), 25 Cal. 266; Gardner v. Buckbee 
 (1824), 3 Cow. 120, 15 Am. Dec. 256; 
 stated, Cromwell (effect of litigation about 
 one upon successive notes all of the same 
 issue) : Nickum v. Burckhardt (1897), 30 
 Or. 464, JO Am. St. 822 (estoppels must be 
 pleaded). 
 
 Ambiguous plea insufficient for res adjudi- 
 cata. Lea : 30. See Dovaston ; S. v. 
 Thurston ; C. v. Roby ; Draper ; Brock v. 
 Royall, 211 111. 290, 103 Am. St. 200; 
 Howe's Civil Law, 67. 
 
 26. CROMWELL v. COTJH'TY OP SAC 
 (1876), 94 U. S. 351-371, 24 L. ed. 195, 
 16 Am. Law Reg. (N. S.) 721-734, n. ; 
 Rood, Garn. 126 : stated, 124 U. S. 231, 
 167 U. S. 397, 42 L. ed. 211, 168 V. S. 
 49 (42 L. ed. 377) ; 69 L. A. R. 481 ; 205 
 U. S. 131. 
 
 Cited, p. 13; §§ 4, 22, 26, 29, 120, 122, 
 124, 129, 130, 135, 137, 138, 145, 176, 
 242, 300, 348, Hughes' Proc. 
 
 Cited, §§ 91, 100, 171, 173, 182, 192, 198, 
 223, 278, Gr. & Rud. 
 
 S. P. in Outram (a fact decided in one 
 case may be pleaded as res adjudicata in 
 another) ; 68 Conn. 63, 57 Am. St. 88 ; 13 
 Wash. 147, 52 Am. St. 29 ; Gardner ; So. 
 Pac. R. R. ; Mitchell, 180 U. S. 471 ; Free- 
 man, 131 Cal. 386, 82 Am. St. 355. 
 
 A judgment is only evidence of a right, and 
 not of any fact. The fact or facts upon 
 which a judgment rests depends upon for- 
 mer allegations and their denials, and of 
 their disposition ; and as to these they are 
 always open to inquiry. Neither judgment 
 nor opinions can foreclose this inquiry. 
 Cohens ; Horan. Whether or not there was 
 a cause of action stated or really existing, 
 is forever an open question ; for upon such 
 facts depends jurisdiction of subject-mat- 
 ter. Fabula non judicium. 
 
 A pleading must disclose a subject-matter 
 with certainty to subserve the wants of res 
 adjudicata. Russell v. Place. 
 
 Certainty is well taught from the Cromwell, 
 Davis and Russell cases, all in 94 U. S., 
 and all decided by Field. 
 
 Cromwell is cited with approval in Han- 
 rick, 93 Tex. 461, 479, 480 (a general 
 plea of res adjudicata was held sufficient). 
 69 I,. R. A. 481. 
 
 Res adjudicata; important rule. All that 
 could or might have been decided is pre- 
 sumed to have been. Garden City, 65 Kan. 
 345 ; 93 Am. St. 284 ; Bissell : 42 ; Hahl ; 
 Perez. 
 
 Defences not pleaded arc waived. 105 Mo. 
 Ap. 248 ; Omne majus cuntlnei in se minus. 
 In Colorado their conduct is looked to. 
 Clark v. Knox, 32 Colo. 243-355 ; Gila, 
 205 U. S. 279. See Rensberger : Hughes' 
 Proc. 
 27. RUSSELL v. PLACE (1876), 94 C 
 S. 606 (24 L. ed. 214), 21 Fed. Cas. 57, 9 
 Blatch. 173, 5 Fish. Pat. Cases, 134. 1 
 
 Leading Cases.— 27. Russell. 
 
 Fost. Fed. Proc. 132 (estoppel must be 
 certain) . 
 
 Cited, §§ 124, 176, 331, Hughes' Proc. 
 
 A pleading must disclose with certainty a 
 subjSct-matter in order to serve the uses of 
 res adjudicata. Cromwell ; Outram ; 180 
 U. S. 33, 471, 533 ; Rushton ; Draper v. 
 Medlock, stating Russell ; also De Sollar v. 
 Hanscombe, 158 U. S. 221 (estoppels are 
 odious) . Verba fortius. 
 
 Leading rules of res adjudicata are also 
 rules of pleading. See Pain : 107. 
 
 In civil cases the argument of courts 
 and most all text writers is for pleadings 
 to notify a defendant of what he must 
 meet at the trial ; the further use to in- 
 form the court is sometimes added. Upon 
 these grounds we are instructed that plead- 
 ings are required. After fully admitting 
 those requirements, still it must be con- 
 fessed that the presentation is entirely too 
 narrow and frail. From it great errorists 
 have written and taught that pleadings 
 can be waived. That little, narrow and 
 partitioned view has led active, logical 
 minds as far astray as the law is vast 
 and intricate. See Identification. 
 
 In criminal cases another ground is 
 sometimes added, namely, the use of the 
 record to sustain a plea of res adjudicata. 
 3 Colo. 382 ; Huntsman ; Cruikshank. See 
 Pain : 107 ; C. v. Robey : 74. 
 
 Remitter of damages permitted in appellate 
 court, to avoid a new trial. 21 Fed. Cas. 
 51. 
 
 28. WRIGHT v. GRIPPE?- (1893), 147 
 111. 496, 37 Am. St. 228, 2 Van Fleet, 
 For. Adj. 176, n. 
 
 Cited, §§ 22, 26, 29, 120, 129, Hughes' 
 Proc. § 59, 223, Gr. & Rud. 
 
 Res adjudicata pleas depend upon matter ap- 
 pearing from the mandatory record, which 
 must be pleaded and proved. Sto. PI. 791 ; 
 Slater v. Skirving (1897), 51 Neb. 108, 66 
 Am. St. 444, n. (pleadings and judgment 
 introduced) ; Stokes, 155 N. T. 581, 592, 1 
 Am. Prac. Rep. 1, 23 (point decided must 
 be material and be in issue and litigated. 
 Kingston Case affirmed*) ; Van Cleaf. 
 
 Essentials of a plea of res adjudicata. See 
 id., 1 Gr. Bv. 63, 528-532 ; 1 Whart. Ev. 
 781, 782 ; Sto. PI. 791 ; 9 Encyc. PI. & Pr. 
 611-640; Markley v. P. (1898), 171 III. 
 260, 63 Am. St. 234. 
 
 Must be pleaded if there teas an opportunity 
 to plead it. Water Com. v. Cramer (1897), 
 61 N. J. Law, 270, 68 Am. St. 705 ; Stokes 
 (record admitted without pleading it). 
 Black,' Judg. 784 ; 1 Freem. Judg. 284 ; 1 
 Gr. Ev. 528-533 ; So. Pac. R. R. v. V. S., 
 168 U. S. 1-63, 1 Am. Prac. Rep. 329-390, 
 n. (judgment if admissible is conclusive 
 without pleading it) ; n. 27 Am. St. 344- 
 349. 
 
 All estoppels must be pleaded. S. v. East 
 Fifth R. R. (1897), 140 Mo. 539, 62 Am. 
 St. 742 ; Borkenhaagen ; Wisconsin Co. 
 (estoppel in pais — equitable estoppel) ; Ty- 
 ler v. Hall (1891), 106 Mo. 313, 27 Am. 
 St. 337-349, ext. n. (code requires plead- 
 ing of) ; DeVotie, 15 Colo. 467, 22 Am. St 
 426 (equitable estoppel must be pleaded) > 
 
DATUM POSTS. 
 
 31 
 
 Leading Cases. — 28. Wright. 
 
 Webb V. J. Hancock Co. See 2 Best, Bv. 
 543. Nickum v. Burckhardt (1897), 30 
 Oreg. 464, 60 Am. St. 822, n. ; Young v. 
 Raincock (estoppel by deed) ; 2 Best, Ev. 
 542. 
 
 Estoppel by verdict requires strict pleadings. 
 Cromwell and Outram cases. They are odi- 
 ous ; all presumptions are against them. 
 They must be pleaded like a plea in abate- 
 ment. And. Steph. PI., § 188; Tyl. ed. 
 316 ; 1 Gr. Bv. 22, n., 531, n. ; Dovaston : 
 217. Opinions of courts are not matter 
 for res adjudicata. Cohens and Outram 
 cases. 
 
 The rule requiring a former adjudication 
 to be pleaded should be studied from the 
 conserving principles of procedure. The 
 confusion arising from Kingston's Case re- 
 lating to these should be comprehended. 
 
 A general plea was recognized." 124 U. 
 S. 228 ; Hanrick, 93 Tex. 481 (material 
 allegations waived by pleading over). See 
 Res adjudicata. 
 
 Demurrer will raise issue where facts appear 
 upon the record. Stone v. Cook (1904), 
 179 Mo. 534, 64 L. R. A. 287. 
 
 29. KEWAUNEE COUNTY V. DECKER 
 (1872), 30 Wis. 624-637. S. P., Rush- 
 ton v. Aspinall ; Lea v. Lea ; R. v. Wheat- 
 ley ; Bliss, Code PI. 291, n. (3d ed.). 
 Cited, pp. 29, 33, § 5, Hughes' Proc. ; 
 §§ 142, 202, 278, Gr. & Rud. 
 
 Codes require certain pleading. In codes. 
 
 Pleadings must be certain and free from am- 
 biguity. Green ; Gay, notes, C. v. Roby ; 
 J'Anson ; Lea : 30 ; Rideout ; Draper. 
 
 A definite theory is essential, and it must 
 not be "fish, flesh or fowl." Kewaunee. See 
 Theory of the Case ; Starbuck ; Dovas- 
 ton. 
 
 Ambulatory pleadings not permissible. 
 The code system recognizes no aider by 
 pleading over, at least as far as concerns a 
 complaint. 
 
 Waiver — consent — acquiescence — 
 conduct — is in equity never a condonation 
 of a fatally defective bill in equity. Sto. 
 PI. 10. And this view is in consonance 
 with requirements of constructive notice 
 (and registration of notice of deeds) where 
 one is never required to look in unusual, 
 odd and out-of-the-way places for a notice 
 that must be of record, and in a proper 
 record and at the right place, and made 
 in the right way, at the right time to im- 
 part constructive notice. To all of its re- 
 quirements Expressio unius, etc., is strictly 
 applied. And so codes should be construed 
 in their prescription for the mandatory 
 record. According to that maxim the su- 
 preme court of the United States construes 
 the requirement that the complaint must 
 state a cause of action. It is not aided by 
 an answer, nor a reply. See Aider. 
 
 30. LEA V. LEA (1S69), 99 Mass. 493, 
 96 Am. Dec. 772-799, ext. a., 2 Van 
 Fleet, For. Adj. 295 ; Freem. Judg. 257. 
 
 Cited, pp. 9, 10, 129, 176, 255, 259, Hughes' 
 Proc. 
 
 Lea stated: Lea sued for a divorce for de- 
 sertion ; his wife pleaded in defense : 1st. 
 His consent to separation. Volenti, etc. 
 
 Leading Cases. — 30. Lea. 
 
 2d. That he was cruel. She established 
 these pleas and defeated his divorce. Aft- 
 erward, she sued for a divorce, and among 
 other things sought to show that the sepa- 
 ration was by consent. Held, insufficient, 
 because uncertain upon which issue she 
 succeeded in the former suit. Every rec- 
 ord should be certain as to what is con- 
 cluded. If possible a plea of res adjudi- 
 cata is defeated, for estoppels are odious 
 and all intendments are against them. 
 Therefore what is concluded must affirma- 
 tively appear, free of ambiguity. Outram ; 
 Draper ; Solly, 12 Colo. 30, 40 : cases ; 
 stated, Van Fleet, For. Adj. 278 ; Russell 
 v. Place; Hobbs v. Henning (1864), 17 C. 
 B. (N. S.), 826 (112 E. C. L. R.) ; stated, 
 2 Smith, L. C. 807, 856, 832, 842, 851-853, 
 858, 8 Mews' E. C. L. 335, 13 id. 1210, 14 
 id. 1795 ; Johnson, 20 Colo. 143 ; Gordon, 3 
 Colo. Ap. 139: cases; Van Cleaf: 17. 
 
 Where a record presenting more than 
 one ground of recovery or defense, and it 
 is uncertain which was tried upon the mer- 
 its and was concluded, there is no estoppel 
 as to either. Cases, supra; Kleinschmidt, 
 14 Mont. 31, 43 Am. St. 604, 615 (general 
 demurrer, with also special cause, it must 
 appear that the cause was decided on the 
 merits) ; Nashua R. R., 164 Mass. 222, 49 
 Am. St. 454, n. ; Johnson, supra. These 
 cases show that records are compared. See 
 Res Adjudicata. 
 
 Evidence aliunde and oral evidence is 
 admissible to prove what issue is involved. 
 Embden, 89 Me. 578, 56 Am. St. 442, n. 
 Limitations of this rule. Mondel : 77 ; 
 Russell : cases. 
 Estoppels are odious and must be certain to 
 every intent. Estoppels conclude the truth ; 
 they primarily rest upon Allegans contra- 
 ria non est audiendus — contradiction — in- 
 consistency — a species of fraud — and 
 therefore they are strictly taken and 
 clearly on principle, and also, upon the 
 weight of authority, they must be strictly 
 pleaded and proved, for they are not fa- 
 vored, but the contrary. The rationale 
 may be gathered from the fact that a plea 
 of former jeopardy is favored. Van Fleet, 
 For. Adj. 661 ; yet a copy of the former 
 indictment must be set out in the plea. 
 1 Bish. Crim. Proc. 814, 815 ; 11 Am. & 
 Bng. Encyc. Law, 964 ; Allison, 13 Colo. 
 525, 16 Am. St. 224. Now, if a favored 
 plea must be so pleaded, o fortiori, it must 
 be pleaded in a civil cause. How to plead 
 res adjudicata is in more conflict and dis- 
 cussion than is the rule in Shelly's case ; 
 one construction is, that in criminal cases 
 it is favored, while in civil cases it is odi- 
 ous. But mark and remember the princi- 
 ple is the same ; whoever pleads it must 
 allege fraud or what is tantamount to 
 fraud, and in all relations every intend- 
 ment — presumption — is against fraud ; it 
 must be strictly alleged and proved. Verba 
 fortius, etc. Therefore an adjudication 
 must appear from a record with certainty. 
 Munday : 79 ; Green : 90 ; Kewaunee ; 
 Robinson v. Raley : 45. Ambiguity in a 
 
32 
 
 DATUM POSTS. 
 
 Leading Cases. — 30. Lea. 
 
 record will destroy it, as a plea of res 
 adjudicata. Lea, and cognate cases. Plead- 
 ings must be certain to sustain the pur- 
 poses of the conserving principles of pro- 
 cedure. Pain: 107. See Identification. 
 Pleadings are always construed strictly. 
 Notes, Lampleigh ; Dovaston ; 190 U. S. 
 546 ; Bristow : 135. Verba fortius, etc. 
 
 31. Mclaughlin v. kelly (1863), 22 
 
 Cal. 211, 7 Mor. Min. Rep. 444. 
 
 Mandatory record must speak for itself and 
 disclose all necessary matter to warrant 
 all judicial action. Mondel ; Gardner v. 
 Buckbee ; Cothran ; Insurance Co. : 157 ; 
 Iverslie : 46. A remedy must follow alle- 
 gations and proofs and be plenary. Mc- 
 Laughlin. 
 
 Probata will not supply allegata. Borken- 
 hagen : 81 ; Shutte : 291. Nor verdicts, nor 
 findings. Hitchcock : 12 ; Dobson. 
 
 Courts are bound by their records and must 
 give judgment in accordance therewith. 
 Austin R. R. ; Cothran. It is well to ob- 
 serve that McLaughlin is a code case. 
 
 32. HARVEY v. RICHARDS (1814), 2 
 Gall. (U. S.) 216, 11 Fed. Cases No. 
 6,182. See Res adjudicata works. 
 
 Courts will afford remedies according to their 
 records. Cohens ; McLaughlin. Courts are 
 bound by their records. Windsor. See 
 Constitutionalism ; Jurisdiction. 
 
 33. HcKTBING V. BULL (1857), 16 N. 
 Y. 297, 69 Am. Dec. 696-707, n. ; Field 
 v. Mayor ; Bliss, PI. 327 ; Pom. Code Rem. 
 657, 659, 661, 693, 694, 700 ; Suth. 
 Dam. ; And. Steph. PI. 233, 237. 
 
 Cited, §§ 135, 145, 303, Hughes' Proc. 
 
 Defenses must be pleaded, or they are 
 waived. J'Anson, Field, Cromwell, Mun- 
 day cases ; Borkenhagen : 81 ; Wisconsin 
 Co. ; Kollock. 
 
 Pleading; new matter; payment. A plea of 
 payment must be specially pleaded. Mc- 
 Kyring; Suth. Dam. (it is a plea of con- 
 fession and avoidance) ; Perot, 17 Colo. 80, 
 31 Am. St. 258 ; J'Anson ; Mostyn ; Field 
 v. Mayor ; Mariott ; 3 Sedgk. Dam. 1074. 
 It must be pleaded affirmatively. Piercy 
 (Cal.), and proved by a preponderance of 
 testimony. Sampson, 109 Ala. 662, 55 
 Am. St. 950, n. ; Perot. And if a plaintiff 
 must allege non-payment, still a defendant 
 must prove. See Negative Averments. 
 Accord and satisfaction must be pleaded. 
 1 Beach, Cont. 455 ; Cumber : 308. New 
 matter ; joinder of defenses ; joint and sev- 
 eral answers. 1 Encyc. PI. & Pr. 830-862. 
 New matter must be pleaded ; enumera- 
 tions of subjects. 1 Encyc. PI. & Pr. 830- 
 851, Bliss, C. PI. 339-364 ; Piercy. A jus- 
 tification must be pleaded. J'Anson ; 
 Savacool ; And. Steph. PI., § 116, n. ; cases. 
 A discharge must he pleaded. Statute of 
 frauds must be pleaded. Citty v. Manuf. 
 Co., sub, Frauds and Perjuries ; Hotch- 
 kiss, 36 Vt. 593, 86 Am. Dec. 679-688, n. ; 
 Kibby v. Chitwood (1826), 4 T. B. Mon. 
 (Ky.) 91, 16 Am. Dec. 143-150, n. Stat- 
 ute of limitations ; defense of, how raised. 
 Brad. Ev. 27 ; Sturges : 111 ; Sto. PI. 751- 
 760. See Limitations. Rescission of a 
 contract must be pleaded. Mabin. 129 Ind. 
 
 Leading Cases.— 33. McKyring. 
 
 430, 28 Am. St. 199. Another suit pend- 
 ing. 1 Bncyc. PI. & Pr. 750-776 ; Sto. 
 PI. 736-740, 2 Am. & Eng. Eq. Cas. 195- 
 202. Pendency of another action — this 
 must be pleaded, or it is waived. Wil- 
 liams, 18 Minn. 82, 88 ; 2 Bates, PI. 905, 
 And. Steph. PI. 140. How pleaded and 
 vouched. 2 Gr. Ev. 26 ; 1 Encyc. PI. & 
 Pr. 770-776; Sto. PI. 736-745, 2 Am. & 
 Eng. Eq. Cas. 185-202. Pendency in an- 
 other state is no defense. Davis, 4 Bush 
 (Ky.), 442, 96 Am. Dec. 309-311, n. In 
 both state and federal courts. Willson, 
 104 Ky. 165, 42 L. R. A. 449-466, ext. n. 
 Or in another jurisdiction. Kilpatrick, 38 
 Neb. 620, 41 Am. St. 741, n. ; or in differ- 
 ent systems of courts. Id.; Plume Co. 
 136 111. 163, 29 Am. St. 305. Pendency 
 of one action as a defense to another. 
 Smith (1863), 44 Pa. St. 326, 84 Am. Dec. 
 448-453, n. ; 8 Am. & Eng. Encyc. Law, 549- 
 555 ; Pars. Conts. 725-728, 2 Chit. Conts. 
 1169-1189, Sto. Conts. 988; 2 Kent. 122; 
 Sto. PI. 736-745. Waiver as a defense 
 must be pleaded. .Defenses to contracts ; 
 performance, etc., must be pleaded. 
 4 Encyc. PI. & Pr. 627-633, 944-953. 
 Special damages ; facts for, must be 
 alleged. 5 Encyc. PI. & Pr. 719. Estop- 
 pels of all kinds must be pleaded, is the 
 general rule. Wright v. Griffey (111. : 
 28) ; Borkenhagen (Wis.). See Estop- 
 pels. Replevin ; general denial will ad- 
 mit all defenses. Horkey, 53 Neb. 522, 
 68 Am. St. 623. And although a special 
 plea is also pleaded, this does not limit it. 
 Horkey. But it does, on principle. Verba 
 generalia restringuntur, etc. ; Castro v. 
 Richardson (1861), 18 Cal. 478; Haven 
 v. Seeley (1881), 59 Cal. 494, 496; Egan 
 v. Delaney (I860), 16 Cal. 85 ; Dane, 114 
 Ind. 296, 5 Am. St. 621; Dickson: 34. 
 
 34. DICKSON v. COLE (1874), 34 Wis. 
 621, 626, 627 : cases ; Pom. Rem. 378 : 
 contra cases, 35 Wis. 556 (R. R. Cases). 
 Qualified denials insufficient. Dickson. 
 See Bell v. Brown ; Allegans contraria 
 non est audiendus. Cited, §§ 1, 5, 22, 
 39, 42, 94, 181, 184, 207, 251, 268, 270, 
 324, Hughes' Proc. 
 
 Cited, §§ 52, 53, 71, 165, 236, 270a, 272, 
 276-278, Gr. & Rud. 
 
 Admissions in an answer control denials in 
 it. Dickson ; Mutual Life Ins. Co. (par- 
 ticular statements control general) ; Fre- 
 mont ; Ansley, 113 Ala. 467, 59 Am. St. 
 122 ; Crater, 4 Colo. 196, 200 ; Singer 
 Mfg. Co. v. Converse (specific statement 
 limits general denials) ; Supply Ditch, sub, 
 Hume (a plea of recoupment admits the 
 contract sued on) ; Searle, 10 S. Dak. 312, 
 39 L. R. A. 345. See Deitsch v. Wiggins 
 (sheriff, denial also admitted). But plead- 
 ings should not be double. Sturges : 111. 
 In replevin if the issues are properly 
 raised by the complaint and denials there- 
 of, then in a supposed affirmative defense, 
 which represents a matter already at issue 
 and properly so, the supposed new matter 
 is surplusage, and calls for no reply. Street 
 v. Morgan (1902), 64 Kans. 85 (Utile per 
 inutile, etc.). 
 
DATUM POSTS. 
 
 33 
 
 Leading Cases.— 34. Dickson. 
 
 A plea of confession and avoidance controls 
 a general denial. Dickson ; Crater ; 
 Bradbury : 35 ; Fost. Fed. Prac. 146 : 
 cases ; Adams, 21 Wall. : 185 ; Commercial 
 Co., 19 How. 318, 319, appealed from 2 
 Curt. (U. S.) 524 (if an answer in chan- 
 cery admits that a proposal for insurance 
 was made and accepted, but adds that no 
 contract was made, the court will not in- 
 tend that the denial includes any new 
 matter of fact, but will treat it as .only 
 containing the respondent's view of the 
 legal consequences of the facts admitted). 
 
 Alternative and repugnant pleadings are 
 void. Neither party can employ them. 
 Vbi eadem ratiOj etc. ; Pain : 107. 
 
 Every presumption is against a pleader. 
 Verba fortius ; Lea : 30. Dovaston : 217. 
 
 Admissions of record in a plea or answer 
 control denials. Verba generalia, etc. ; 
 Crater ; Dickson ; Sexton v. Rhames 
 (1860), 13 Wis. 110 (instructive case) ; 
 Orton v. Noonan (1865), 19 Wis. 370; 
 Farrell v. Hennesy (1867), 21 Wis. 639. 
 Material allegations, if admitted, are con- 
 clusive. 
 
 A general denial in an answer will not put 
 the plaintiff upon proof of facts elsewhere 
 admitted in the answer. Farrell ; Gaines. 
 
 Pleadings ought to be true. Graver : 103 ; 
 Crater; Hensley v. Tartar (1860), 14 Cal. 
 508 ; Hannen. 
 
 Inconsistent defenses sometimes allowed 
 in pleadings. L. S. R. R. (1885), 3 Wyo. 
 134, which marshaled the courts of the 
 states, as the judge thought. He denied 
 that the words "as many defenses as he 
 may have" (Graver) meant anything in 
 his court. .He overlooked Crater and other 
 cases. The court also denied that a plea 
 of confession could be used to overcome 
 inconsistent defenses. In other words, that 
 one may be mendacious if he pleases, and 
 next, that you cannot prove him so by his 
 own solemn admission upon the court's 
 record. Verba generalia restringuntur , 
 etc. And fundamental requirements did 
 not weigh with the gathered cases, 11 to 
 3. The statute was made to read as many 
 defenses as he wantonly pleases and mala 
 fide imagines. Bell v. Brown (a very 
 equivocal case). Courts that construe a 
 code to exclude Bristow, and that plead- 
 ings need not be true, nor used as true 
 and bona fide, abandon the base line of 
 procedure. See Dovaston (every presump- 
 tion is against a pleader) ; Pain (repug- 
 nant pleadings are void). 
 
 Wherever pleadings are to limit issues 
 •and to narrow proofs, the denial must ex- 
 ist, be understood and rightly respected. 
 To judge rightly of its necessity and im- 
 portance it must be viewed from the 
 grounds and rudiments of law, and es- 
 pecially from convenience ; § 53, Gr. & 
 Rud. Convenience ; also certainty. The 
 allegation, the admission, the denial and 
 the issue are interwoven with the con- 
 serving principles of procedure. §§ 83- 
 123, Gr. & Rud. The import and sig- 
 
 3 
 
 Leading Cases.— 34. Dickson. 
 
 niflcance of the mandatory record must be 
 understood. Bradbury : 35. 
 Posito uno oppositorum negatur alte- 
 rum; Allegans contraria non est audien- 
 dus. Pain : 107 ; Sham Pleadings. 
 
 The mandatory record and its functions 
 must ever be kept in view by the prac- 
 titioner. To declare for it on one hand 
 and impugn it on the other is to dismem- 
 ber procedure and all that depends upon 
 it. §§ 83-123, Gr. & Rud. 
 
 One of the high functions of a record is to 
 inform the court what is in dispute — what 
 is alleged, what admitted and what de- 
 nied. A court should accept what both 
 parties are agreed upon as shown by the 
 record, unless it is absurd, impossible or 
 illegal. Weltmer: 268a, What a defend- 
 ant believes, the court should believe, if 
 consistent with the claims of the plaintiff 
 and reason. See Ad damnum. 
 
 It is a rule in equity, that what a defendant 
 believes the court will believe. Potter 
 (1749), 1 Vesey, Sr. 274, 3 Atk. 719. 
 Amb. 98, 26 Eng. Rep. 212, 5 Mews' E. C. 
 L. 791; Hill v. Binney (1802), 6 Vesey, 
 738, 31 Eng. Rep. 1284, 6 Mews' 1649, 
 Fost. Fed. Prac. 265. 
 
 A plaintiff must avoid repugnancy in his 
 allegations. Pain. Accordingly, a defend- 
 ant must be equally guarded, for the rule 
 is, from beginning to end, "every presump- 
 tion is against a pleader." Dovaston ; 
 Verba fortius. 
 
 Strict ■ rules govern the formation of an 
 issue. Seattle Bk. ; Garland. One desir- 
 ing a trial must make an issue, and with 
 clearness and certainty. He must be defc* 
 nite and his pleading must not be incon- 
 sistent and repugnant. Dickson ; Seattle ; 
 Preston v. McCormick (1877), 12 Bush 
 (Ky.), 570, 582; Crater. Contra: Colo- 
 rado cases ; 48 L. R. A. 177 ; 32 Colo. 
 51 ; 437, 443, 444 ; Deitsch. 
 
 Admissions upon a court's record are un- 
 controllable — are irrefragable. — and can- 
 not be impugned or impaired by evidence 
 aliunde. And this is the rule in federal 
 courts. Fost. Fed. Prac. 148, 265, 266 ;. 
 Bissell: 42. 
 
 Bradbury. Material allegations not denied 
 are admitted. See Admissions. And if 
 by demurrer, this is admissible in other 
 cases. Nispel, 74 111. 306 ; Slater, 51 
 Neb. 108, 66 Am. St. 444. And these 
 cannot be contradicted nor disregarded. 
 Bradbury ; Dickson ; McLaughlin. Admis- 
 sions upon the record are the highest of 
 evidence, are conclusive and cannot be 
 contradicted. Bissell. 
 
 Admissions in pleadings control denials. Cra- 
 ter ; Supply Ditch Co. v. Elliott ; Dickson ; 
 Adams, supra. 
 
 The pleadings may be read to the jury 
 and the jury can find no fact against 
 them. Lettick, 63 111. 335 ; Gould, PI. 
 (3d ed.), p. 152, § 168. 
 
 Facts admitted need not be proved. First 
 Nat. Bank, 158 Mo. 668, 81 Am. St. 332. 
 Evidence to prove such facts is surplusage, 
 and should be rejected as such. A court 
 
34 
 
 DATUM POSTS. 
 
 Leading Cases.— 34. Dickson. 
 
 has no power to demand nor to receive 
 such. Munday : 79 ; Shutte : 291. Allega- 
 tions are essential for the admissibility 
 of evidence. Borkenhagen : 81. Brown, 
 Jurisdiction ; De non apparentibus, etc. 
 
 Nor can evidence be admitted where 
 there are no allegations. Borkenhagen ; 
 Shutte: 291; Johnson, 124 Ala. 508, 83 
 Am. St. 196. Courts are bound by their 
 records. McLaughlin (the record must 
 speak for itself) : 31. 
 
 One desiring to raise an issue, to make 
 a denial or set up matter in defense, is 
 given the opportunity, and if he then 
 fails, Volenti non fit injuria applies to 
 him, and to his claims after he has aban- 
 doned them. Debile fundamentum fallit 
 opus. If he waives his rights then they 
 are waived forever, and in no way can 
 they be afterward restored. Defenses not 
 pleaded are waived. J'Anson : 91 ; Crepps : 
 113; Cromwell: 26. 
 
 Denials in equity — injunction cases. 
 Poor (must be positive and unequivocal) ; 
 Cole Silver Min. Co. 
 Pleadings are evidence. Every statement of 
 a fact material to the issues made in the 
 pleadings (North. P. R., 119 U. S. 561), 
 affidavits (National Steamship Co., 143 
 U. S. 28), or other documents used in 
 support of the claim of any party to a 
 suit, who is of full age, whether sworn 
 or not, may be used as evidence against 
 him upon the hearing. 1 Fost. Fed. Prac. 
 265. The filing of a general replication 
 does not waive the right to rely on ad- 
 missions in an answer or plea. Cavender, 
 •8 Fed. 641. A cross bill in equity must be 
 consistent with an answer filed. Sto. PI. 
 399, n. (10th ed.). An admission in an 
 unverified pleading in another suit which 
 was signed only by an attorney cannot be 
 admitted in evidence. Delaware County, 
 133 U. S. 473, 487. Statements in a veri- 
 fied pleading verified by a party in an- 
 other suit, are admissible in evidence. 
 Balloch, 146 U. S. 363 ; Pope v. Allis 
 (1885), 115 U. S. 363; Boileau : 43. 
 Failure to waive an answer under oath; ad- 
 mits such credibility of a defendant as 
 gives his verified answer the force and 
 effect of a witness. Vigel v. Hopp (1881), 
 104 U. S. 441 ; Bonnell, 185 ; Ropes v. 
 Jenerson ; 16 Cyc. 392, 393. 
 
 What the parties believe, the court be- 
 lieves, unless it is absurd and impossible. 
 Ad damnum. Courts will look and con- 
 sider from a subject matter. 
 
 Admissions in a pleading are binding. 
 Fost. Fed. Prac. 148 ; Gold Co., 6 Blatch. 
 307, 310. 
 
 A vendee of personalty set up : (1) A 
 general denial, (2) rescission of the con- 
 tract, (3) a counter claim for breach of 
 warranty, (4) damages for false repre- 
 sentations in the sale, and (5) by an 
 amendment that he bought it as agent. 
 Held: permissible. Cole, 121 Iowa, 146. 
 (In Iowa and Kentucky inconsistent de- 
 fenses are permissible if the verification 
 states which one is true is unknown, but 
 
 Leading Cases.— 34. Dickson. 
 
 one is true. The bona fide pleading is 
 respected and sought) ; Pom. Rem. 722 
 (favors inconsistent defenses) ; Contra: 
 Maxw. Code PI., p. 397 ; Bliss, 343, Con- 
 tra : Seattle Bk. ; Seattle Bk. v. Carter 
 (1895), 13 Wash. 281, Burnside, 73 Conn. 
 83, Murphy, 8 Idaho, 133, 67 Pac. 421 ; 
 Steenerson, 52 Minn. 211 ; Oakes, 61 Neb. 
 6, Ins. Co., 63 Ohio 258 ; Baines, 41 Ore. 
 135. Generally they are not inconsistent 
 unless the proof of one disproves the 
 other. 2 Mich. Law. Rev. 419. 
 Inconsistent defenses permissible: Banta 
 121 Cal. 414, Hill, 29 Colo. 161, Weston' 
 33 Ind. 486 ; one may deny the allega- 
 tions of slander and also plead in con- 
 fession and avoidance. Houston Ry., 96 
 Tex. 121, 97 Am. St. 877. De Lissa, 59 
 Kan. 319, Societa Italiana, 138 N. Y. 
 468, Seeman, 54 N. Y. Supp. 564, 25 
 Misc. 328 ; McLamb, 126 N. C. 218 ; 
 Millan, 54 S. C. 485; Green, 5 S. Dak. 
 452 ; Paul v. Luttrell (Colo.) ; 16 Cyc. 
 389. 
 
 The following cases may be considered 
 upon the question of what are sufficient 
 denials: Ansley (a plea of set-off admits 
 the contract) ; Richardson ; Blood ; Can- 
 non ; San Francisco Co. ; Robbins ; Doll ; 
 Higgins ; Siter ; Banta v. Savage ; Blood 
 (denials must be certain) ; Bell v. Cul- 
 pepper (denials must be exact) ; Burley 
 (general denial sufficient under code if 
 waived) ; Burnley (S. P. Poor) ; Bell v. 
 Brown (equivocal — repugnant views) ; 
 Clark v. Van Riemsdyk (denials must be 
 certain — Poor) ; Cole Silver Min. Co. (de- 
 nials must be certain to dissolve an in- 
 junction) ; Tate v. P. (negative pregnant 
 denials bad; Doll) ; Tynan v. Walker (bad 
 denials may be waived) ; Crain v. U. S. 
 (plea of not guilty essential in- the right 
 record). S. P. Aylesworth v. P.; Munday 
 v. Vail : 79 : Cases. 
 
 35. BRADBURY V. CRONISE (1873), 46 
 Cal. 287, 9 Mor. Min. Rep. 306. 
 
 Cited, §§ 2, 12, 14, 94, 168, 186, 203, 207, 
 251, Hughes' Proc. Cited, §§ 54, 198, 
 272, 278, Gr. & Rud. 
 
 Admissions upon the mandatory record con- 
 trol upon appeal. Nothing in opposition 
 to these can be considered. De non ap- 
 parentibus, etc. ; Bissell : 42 : Fost. Fed. 
 Prac. 148, 265, 266 (what a defendant 
 believes a court will believel. 
 
 Evidence against admissions upon the man- 
 datory record is inadmissible. Shutte v. 
 Thompson : 291. The only relevant evi- 
 dence is that which corresponds with the 
 allegations. All other is irrelevant — sur- 
 plusage. It cannot add to nor vary that 
 record. In prcesentia majoris, etc. ; Cooeh 
 v. Goodman. 
 
 36. SEATTLE NATIONAL BANK V. 
 JONES (1895), 13 Wash. 285, 48 U 
 R. A. 177-210, ext. n. These notes indi- 
 cate the bewilderment. 
 
 Cited, %% 18, 21, 40, 42, Hughes' Proc. 
 
 Right to plead inconsistent defenses. S. P- 
 as Dickson (a plea of confession over- 
 comes a general denial). See Seattle Bk. 
 v. Jones ; Bailey : 44 ; Graver : 103. 
 
DATUM POSTS. 
 
 35 
 
 Leading Cases. — 
 
 37. POOR v. CAELETON (1837), 3 Sum. 
 (U. S.) 70, No. 11272 Fed'. Cas., Story, 
 J., 2 Lead. Eq. Cas. 1413, 1414, 2 High, 
 Inj. 1505-1527, 1 Beach, Inj. 105, 144, 
 299-315, Adams, Eq. 196, n., Cole Min. 
 
 Cited, p. 39 ; §§ 93, 251, Hughes' Proc. 
 
 Denial; its requirements. Poor; Dinehart ; 
 Minturn. Must be positive and unequivo- 
 cal. Searle, 10 S. Dak. 312, 39 L. R. A. 
 345 ; Dickson. 
 
 Denial must be perfect to weigh in an 
 answer in equity. See Burnley ; Cannon ; 
 Bell ; Clark's Executors ; U. S. v. McAllis- 
 ter ; Minturn ; Doll ; Higgins ; Humph- 
 reys ; Cole Silver. 
 
 The requirements of the denial in Poor, 
 Humphreys, Doll, Dinehart and Shricker 
 v. Field, la., should be carefully consid- 
 ered. In some states, the rule in Dickson 
 is uniformly upheld ; in others it is in 
 conflict; in others the general issue is 
 upheld. Thg Wisconsin cases are con- 
 sistent. Kollock. 
 
 38. HUMPHREYS V. McCALL (1S5S), 
 9 Cal. 59, 70 Am. Dec. 621, ext. n., 
 Bliss, Code PI. 326; Avery, 136 N. C. 
 426, 68 L. R. A. 776; 1 Encyc. PI. & 
 Prac. 875. 
 
 Cited, §§ 40, 93, 184, Hughes' Proc. 
 
 What is a sufficient issue. Poor ; Doll. 
 
 A bona fide denial is essential else it is 
 - frivolous and a nullity. Bliss, PI. 421. 
 Denials on information and belief. Hum- 
 phreys ; Dinehart; 1 High, Injunc. 34, 35 ; 
 Sto. PI. 852, 855, 855a; Jones v. P., Mill- 
 sted ; Haney v. P. Denial of what one 
 is presumed to know upon information 
 and belief raises no issue. 
 
 39. RAYMOND v. JOHNSON (1897), 17 
 Wash. 232, 61 Am. St. 908, n. Denial 
 upon information and belief of what one 
 is presumed to know raises no issue. Hum- 
 phreys. See False and Sham Pleas. 
 
 40. GARLAND v. GAINES (1901), 73 
 Conn. 662, 49 Atl. 19, 84 Am. St. 182. 
 
 Cited, § 39, 42, Hughes' Proc. 
 Denials; insufficient raises no issue and 
 allegation is admitted and requires no 
 proof. 
 "The plaintiff was not required under the 
 pleadings to prove the execution of the 
 contract of guaranty. The defendant's 
 answer, that he had no information or 
 knowledge sufficient to form a belief, 
 made to that paragraph of the complaint 
 ■which alleges that on or about July 23, 
 1898, said lease was returned to the 
 plaintiff signed by the defendant, as 
 guarantor, and by Thomas J. Gaines, 
 Jr., was not a compliance with the pro- 
 visions or § 874 of the General Statutes 
 requiring that if the defendant intends 
 to controvert the execution or delivery of 
 any- written instrument or recognizance 
 sued upon, he shall deny the same in his 
 answer specifically. The answer made 
 was equivalent to a statement that the 
 defendant could not in good faith deny 
 the execution of the guaranty, but that 
 he would not admit it. Sayles v. Fitz- 
 gerald, 72 Conn. 391, 44 Atl. 732. But 
 it is only when specifically denied that 
 the plaintiff is required to prove such 
 execution." 73 Conn. 665. 
 
 Garland' on a statute from the English 
 Judicature Act, it having been re-enacted 
 in Connecticut, which is the only Amer- 
 
 Leading Cases. — 40. Garland. 
 
 ican state that has borrowed it. Evi- 
 dently it is much opposed to false, sham 
 and evasive pleadings. What is a suffi- 
 cient denial is one of the most vexed and 
 confusing of questions as will appear from 
 the 48 L. R. A. 177-210 : cases. 
 Stamping of instruments : of the failure to 
 comply with the statute. Garland, 84 
 Am. St. 182-199, ext. n. 
 
 41. OSCANYAN T. WINCHESTER 
 ARMS CO. (1880), 103 U. S. 261 (26 
 L. ed. 539), 17 Am. Law Reg. (N. S.) 
 626. Cited, Benj. Sales, Gr. Pub. Pol., 
 Beach, Conts., Hughes' Conts., Reinh. 
 Ag. 72, 74, 82. 
 
 Cited, p. 13 ; §§ 5, 18. 133, 154, 156, 158, 
 184, 299, 324, Hughes' Proc. 
 
 Cited, §§ 100, 123, 169, 285, 307, Gr. & Rud. 
 
 Solemn judicial statements or admissions of 
 counsel bind a client. 1 Gr. Ev. 205 ; 3 
 id. 39 ; Mahan. Attorneys responsible for 
 their representations. See Attorneys ; 
 Woodstock Iron Co., 129 U. S. 643 ; 
 Payne : 307. Agent's admission binds 
 principal, if within the scope of the 
 agency. Mahan ; Loomis, 159 Mass. 39, 
 37 Cent. L. J. 150, n. ; U. S. v. Good- 
 ing : 202. 
 
 Illegal contracts will not be enforced. See 
 In pari; In azquali melior est conditio 
 possidentis. §§ 154-157, Hughes' Proc. 
 
 42. BISSELL v. SPRING VALLEY 
 TOWNSHIP (1888), 124 U. S. 225 (37 
 L. ed. 411), 8 Sup. Ct. R. 495, Van Fleet, 
 For. Adj. pp. 668-776, 2 Black: Judg. 751, 
 1 Dill Munic. Corp. 486, 543, Freeman, 
 Judg. 267, Bigl. Fraud. 57, 65 Kan. 348, 
 93 Am. St. 286 ; 205 U. S. 131. 
 
 Cited, § 2, Hughes' Proc. 
 
 Election to stand by a demurrer is final and 
 conclusive; it is an election of remedy. 
 If one elects to stand upon a demurrer, 
 after Judgment against him sustaining the 
 demurrer, this is an election and is final 
 and 1 conclusive. Bissell ; Sutter, 36 Cal. 
 112 ; Whiting, 37 N. Y. 600 ; Piper v. 
 Hoard (1867), 107 N. Y. 67-83, 1 Am. 
 St. 789, 11 N. Y. St. Rep. 375, 6 Encyc. 
 PI. & Pr. 353, 356. Allegans contraria, 
 etc. 205 U. S. 122. 
 
 "The entry of final judgment on demurrer 
 concludes the parties to it, by way of 
 estoppel, in a subsequent action between 
 the same parties on a different claim, so 
 far as the new controversy relates to the 
 matters litigated and determined in the 
 prior action." 
 
 "A final judgment for defendant in an ac- 
 tion against a municipal corporation to 
 recover on coupons attached to bonds pur- 
 porting to have been issued by the corpo- 
 rator enter on demurrer to an answer set- 
 ting up facts showing that the bonds were 
 never executed by the municipality, con- 
 cludes the plaintiff in a subsequent action 
 against the municipality to recover on oth- 
 er coupons cut from the same bonds. 
 Cromwell v. County of Sac distinguished." 
 Garden City, 65 Kan. 845, 93 Am. St. 284. 
 
 "Admissions by demurrer are admissions 
 upon record and as such they are of the 
 highest and most conclusive character. A 
 judgment rendered upon demurrer is 
 equally conclusive (by way of estoppel)' of 
 the facts confessed by the demurrer, as a 
 verdict finding the same facts would have 
 been ; since they are established; as well 
 
36 
 
 DATUM POSTS. 
 
 Leading Cases. — 42. Bissell. 
 
 in the former case as in the latter, by way 
 of record. And facts thus established can 
 never afterward be contested between the 
 same parties, or those in privity with 
 them." 124 U. S. 232 ; Gould, PI. Chap. 
 IX, Pat. 1, § 43 ; Dickson ; Bouchaud, 3 
 Denio, 238. 
 
 Hahl is highly instructive as to how 
 contract rights are affected by rules of 
 procedure — how "adjective" law affects 
 "substantive." 
 Non suits Dismissal; Judgment by, is not. 
 Sub, Cromwell. See Carten, 43 S. C. 221, 
 49 Am. St. 829, n. 
 Defaults; Judgment upon conclusive. Last 
 
 Chance Min. Co., 157 U. S. 683. 
 Judgments must be upon merits. Greely ; 
 Note, 14 L. Ed. (U. S.) 971 ; Williams v. 
 Hewitt (1895), 47 La. 1076, 49 Am. St. 
 394 ; Bigl. Estop. 37 ; 1 Freem. Judg. 267 ; 
 6 Encyc. PI. & Pr. 356. Dismissal of 
 cause after leave granted to amend re- 
 moves the bar, it seems. 6 Encyc. PI. & 
 Pr. 356. 
 Defective pleading; Demurrer : omitted facts 
 if supplied in a new pleading are not 
 barred. 2 Black. Judg. 708 : cases : Los 
 Angeles, 59 Cal. 444 : Gilman, 1 Pet. U. 
 S. 298 ; Wilber, 21 Pick. 250 ; Birch, 2 
 Metcalf (Ky.), 544; 3 Sm. Lead. Cas. 
 2087 ; cases, 9th ed. ; Rodman, 59 Mich. 
 395 ; Gould, 91 D. S. 534. 
 
 But of course the identical facts are 
 barred. 2 Black. Judg. 709; Alley, 111 
 U. S. 472; Cromwell. 
 Same cause of action; what is. Taylor v. 
 
 Castle. 
 Functions and domain of demurrers. The 
 importance of a demurrer may be judged 
 from the reported cases. It affects nearly 
 every litigated case ; its function is to 
 raise an issue of law in contradistinction 
 from an issue of fact ; its issues are to 
 secure a record good in form and suffi- 
 cient in substance to sustain the applica- 
 tion of judicatory power. Lea ; R. v. 
 Vaux ; McAllister ; Hopper. 
 
 The sufficiency of every affirmative fact 
 averred, may be tested by a demurrer, 
 and it in some form may be lodged to 
 every pleading. In equity, a demurrer is 
 laid to statement of facts in the bill only. 
 Sto. Eq. PI. 456 ; it did not lie to an 
 answer or plea. Exceptions lay to these. 
 Demurrers to answers are unknown in 
 equity ; but objection could' be made at 
 any time and at any stage. McCurry, 
 108 Ala. 451, 54 Am. St. 177. It is sub- 
 mitted if the written objections to it are 
 not preferable, — are not the better prac- 
 tice. And it will lie to a denial at com- 
 mon law. 1 Chit. PI. 656, 7th ed. 651 ; 
 16th Am. ed. And it should be admitted 
 in statutory proceedings by necessary im- 
 plication. Expressio eorum, etc. ; Bates ; 
 McLaughlin. Some formal objections may 
 be reached by demurrer, but generally 
 these are the subject of exceptions in 
 equity or of motions at law and likewise 
 under codes ; grounds of demurrer are 
 specified and to these apply Expressio 
 unius, etc. Kraner : 299. 
 
 Leading Oases. — 42. Bissell. 
 
 The separating line between formal de- 
 murrers and motions is not always clear 
 and traceable. One test of difference is 
 nothing more tangible and fixed than this, 
 that if a motion to strike and make cer- 
 tain must be argued, then a demurrer is 
 necessary. Cottrill, 40 Wis. 553, 559. 
 This leaves it somewhat like the ebb and 
 flow of the tide ; it leaves a wide margin 
 of difference ; so much depends on the 
 lawyership of the judge. Sufficiency and 
 form must be tested by demurrer. Con- 
 solidated, 166 III. 361, 38 L. R. A. 624. 
 Motions ; functions of. P. v. McCumber : 
 110. 
 
 Lawyers are deeply grounded on the 
 distinctions between dilatory procedure, 
 Kraner, and essential procedure or plead- 
 ings to the merits, and upon this desidera- 
 tum depends the utility of the last rule. 
 Any comprehensive view of a demurrer 
 and its functions, suggests -many ideas of 
 great practical importance in procedure, 
 and also of the inseparable incident of 
 every legal subject, which is, of course, 
 construction. From this standpoint a 
 volume could be written, for it affords so 
 many generalizations ; so many verifying 
 deductions can be made ; instructive com- 
 parisons and analogies are constantly 
 awakened, and the rationale of many ger- 
 mane rules may be pointed out from com- 
 manding, interesting and instructive view- 
 points. 
 
 Waiver also attends, and, too, in its im- 
 mensity and under its varied nomencla- 
 ture, e. g. aider by pleading over (Boyd), 
 or by verdict (Rushton), or errors cured 
 by judgment. Consensus tollit errorem. 
 What is waived by not demurring and 
 what is waived by answering, demands 
 close and critical attention in a great 
 number of cases. This brings into view 
 what lies over and beyond and among 
 these, and what is subject to collateral at- 
 tack, what is a nullity and what a mere 
 irregularity, or what is void and what is. 
 merely voidable. These are elsewhere dis- 
 cussed. Consensus tollit errorem: R. v. 
 Waters ; R. v. Waverton ; Rushton ; Hop- 
 per ; McAllister. 
 
 The rules of res adjudicata (1 Herm. 
 Estop. 31; Kingston's Case), the ultimate 
 mesh through which the pleadings must 
 pass, must be reviewed and finally passed 
 upon, should attend the construction of 
 every pleading, 1 Gr. Ev. 63; 2 id. 1 ; 
 3 id. 10; Bristow: 135; Lea: 30; 
 Wright : 28 ; S. v. Beach : 258. 
 A plea of res adjudicata is an odious and 
 disfavored plea. Lea: 30; Kingston's: 
 76 ; Outram : 26. And to this, in all its 
 strictness and technical requirements, 
 pleadings may ultimately be subjected. 
 Kingston's and rules, id. For this pur- 
 pose is one of their chief functions ; for 
 this test they are devised. The court 
 that announces liberal and loose rules 
 at the threshold, and both strict and 
 technical ones at the dome, makes of the 
 law a mire of absurdity and anything 
 
DATUM POSTS. 
 
 37 
 
 Leading Cases. — 42. Bissell. 
 
 but the perfection of reason. Sub, Bris- 
 tow ; notes to Lampleigh ; Be non, appar- 
 entibus, etc. 
 What is waived by not demurring. Auburn ; 
 6 Encyc. PI. & Pr. 372 ; Consensus tollit 
 errorem; Rushton. What a general de- 
 murrer reaches cannot be waived ; such 
 matter is open to both direct and col- 
 lateral attack. Rushton ; Bartlett ; 
 Skeate ; Moore v. C. ; Dovaston ; McAl- 
 lister ; Sto. PI. 4, 10, 24-28, 257 ; 6 
 Encyc. PI. & Pr. 372. See Bish. Cr. Proc. 
 1286. 
 
 A pleading that will not support a plea 
 of res adjudicata may be objected to at 
 any time and in any way, and codes so 
 declare. Auburn ; Bliss, PI. 422. 
 43. BOILEAU v. RUTLIN (1848), 2 
 Exch. (Eng.) 664, Bro. Max. 339, Langd. 
 Eq. PI.; 6 Mews' E. C. L. 364. 
 Cited, §§ 94, 334, 337, Hughes' Proc; §53, 
 
 Gr. & Rud. 
 "The facts actually decided by an issue in 
 any suit cannot be again litigated between 
 the same parties, and are conclusive evi- 
 dence between them ; so are the material 
 facts alleged by one party, which are di- 
 rectly admitted by the opposite party, or 
 indirectly admitted by taking a traverse 
 on some other facts, if the traverse is 
 found against the party making it. But 
 the statements of a party in a declaration 
 or plea, though for the purposes of the 
 cause he is bound by those that are mate- 
 rial, ought not, it would seem, to be treat- 
 ed as confessions of the truth of the facts 
 stated." Boileau ; Mondel : 77 ; Brittain v. 
 Kinnaird: 50. 
 A material allegation in a pleading, which 
 is not traversed, is so far admitted that 
 it is not competent to the other party to 
 disprove it. Bouzi, 4 Man. & G. 295 (43 
 E. C. L. R. 158), 5 Scott, N. R. 1, 11 
 Mews' E. C. L. 915. See rules of Res 
 Adjudicata; Foster. Fed. Prac. 148, 266 ; 
 Langd. Eq. PL 12, 33 (exceptions stated) ; 
 Whitney v. Dresser, 200 U. S. 532 (sworn 
 proof of claim is evidence in bankruptcy) ; 
 16 Cyc. 383. 
 Codes very clearly adopt the rule that ad- 
 missions upon the record are conclusive, 
 and cannot be contradicted. Dickson ; 
 Bissell ; Crater ; Bradbury ; C. v. Kane : 
 183 : Cases ; 8 Encyc. PI. & Prac. 19-34 ; 
 1 Gr. Ev. 171, n. ; Slater, 51 Neb. 108, 66 
 Am. St. 444, n. ; Kollock. See Admis- 
 sions. 
 Allegations are evidence in other cases. 
 Pope, 115 U. S. 563: cases; Huff. & W. 
 Conts. 595 ; Allegans contraria non est 
 audiendus. See Res Adjudicata; Outram ; 
 Cromwell ; Holman, 117 Iowa, 268, 62 L. 
 R. A. 395 (admissions in other cases with 
 third persons admissible) ; Wagner v. 
 Gibbs : 290 ; Brittain : 50. 
 Allegation of value in attachment affidavit 
 is conclusive upon affiant, in action; on 
 the bond. 94 Am. St. 293. 
 
 One view of pleadings is from the con- 
 serving principles of procedure. From 
 these, what a person alleges, what he 
 admits and what he denies is of far 
 greater significance than where those 
 policies are overlooked, and where plead- 
 
 Leading Cases. — 43. Boileau. 
 
 ings are viewed as a formal and incon- 
 sequential exchange of charges and 
 denials, that may be departed from at 
 any moment, and anywhere. The deci- 
 sions show both these views are abroad. 
 See Theoby of the Case ; Rushton ; 
 Russell v. Place. 
 
 Wherever false and sham pleadings are 
 excluded and punished, there the formal, 
 deliberate, written statements upon a 
 court's records are held to conclude. 
 Graver. See Estoppel ; , Repugnancy ; 
 Allegans contraria, etc. 2 Sin. Lead. Cas. 
 950, 951, 8th ed. 
 Injunction; the pleadings as evidence. 
 
 Dinehart: 279. 
 In federal practice, if an answer under oath 
 is not waived and it is accordingly veri- 
 fied, then it must be overcome by at least 
 two witnesses, or by one witness and 
 strong corroborating circumstances. Here 
 as strict proof is required as in perjury 
 or treason. Vigel, 104* U. S. 441; 2 
 Sto. Eq. 1528 ; Fost. Fed. Prac. 84, 148, 
 266 (admission in pleading) ; Jordan v. 
 Parmele, 2 Allen, 212 ; Ropes. 
 44. BAILEY v. BAILEY (1863), 44 Pa. 
 274, notes to Kingston's Case, 2 Smith, 
 Lead. Cas. 951, 8th ed. ; 1 Herm. Estop. 
 285 (quoting Smith, Lead. Cas.), 1187 
 (election) ; Garland v. Wholebau. 
 Cited, §§ 56, 182, 308, 337, Hughes' Proc. 
 Cited, §§ 171, 173, 174, 179, Gr. & Rud. 
 Allegans contraria, etc. In 1861, Mr. Bailey 
 obtained a decree of divorce. A few 
 months later the divorcee sued him as 
 femme sole in replevin for goods, and 
 as such recovered a judgment against him 
 for $125.00. This she could not have 
 done as a femme covert. She had ap- 
 pealed from the divorce decree, and this 
 appeal was pending during the prosecu- 
 tion of the replevin suit. Bailey, by 
 leave of the supreme court, pleaded the 
 record of the replevin proceedings in bar 
 of the errors assigned in the supreme 
 court. This record was unsuccessfully 
 demurred to in the supreme court, upon 
 the ground that the wife was estopped , 
 by her replevin proceedings from further 
 contending that she was not lawfully 
 divorced. See Kingston's. The court 
 classified such estoppels as in pais. Con- 
 tra : Terry ( record admitted to prove 
 without pleading it). 
 
 The legal assertion of a right acquired 
 by a valid decree of court will estop or 
 bar the plaintiff therein from all proceed- 
 ings thereafter to invalidate the decree 
 under which the asserted right has been 
 claimed. One cannot approbate and rep- 
 robate at the same time. U. S. Co., 70 
 Neb. 144, 113 Am. St. 783-788. Allegans. 
 There are four kinds of estoppel: Estoppel 
 of record (res adjudicata), estoppel by 
 deed, estoppel in pais, or equitable es- 
 toppel, and estoppel in pais from act and 
 conduct in official proceedings, as in 
 Bailey; 2 Smith, Lead. Cas. 950, 951 : 
 cases ; quoted, 1 Herm. Estop. 285. See 
 Terry. These four species should be 
 familiar to the practitioner. The law re- 
 
38 
 
 DATUM POSTS. 
 
 Leading Cases. — 44. Bailey. 
 
 lating to them is vast, technical, but 
 nevertheless of the most useful character, 
 and everywhere pervades the law of pro- 
 cedure as well as all other leading sub- 
 jects. 
 
 A party cannot be heard to impeach a 
 judgment which he himself has procured 
 to be entered in his own favor. Starbuck, 
 173 N. Y. 503, 93 Am. St. 631 ; Bailey 
 v. Hornthal; Taylor, 136 Ala. 354, 96 
 Am. St. 26 (one dismissing an appeal 
 because the' judgment was not final can- 
 not afterward allege it is final). See 
 Fletcher v. Trewalla ; Campbell v. Por- 
 ter : 2, 
 
 One accepting benefits under a judg- 
 ment cannot impeach it. Allegans, etc. 
 
 Unconstitutional statute ; one may estop 
 himself from objecting to. Shephard v. 
 Barron (1904), 194 ~U. S. 553; P. ex rel. 
 Lewis v. Waite (1873), 70 111. 25. 
 
 45. EOBINSON V. BAIEY (1757), 1 
 Burr. (Bng.), 316, 1 Sm. L. C. 1378-1383, 
 n. Omitted in 9th, 10th and 11th eds. 
 
 Cited, §§ 5, 15, 21, 22, 47, Hughes' Proe. ; 
 
 §§ 11, 112, 122, 196, Gr. & Rud. 
 Duplicity in pleadings faulty. Lea : 30 ; 1 
 Chit. PI. 558, 16th Am. ed., 7 Encyc. PI. 
 & Pr. 236-244. . See Res Adjudicata; 
 Alternative Pleadings ; Pain : 107. 
 Pleadings can be made instruments of chi- 
 cane. Robinson, sub, Cutter ; Dickson. 
 On a question of duplicity merely, Lord 
 Mansfield observed : 
 "The substantial pleadings are founded in a 
 strong sense, and in the soundest and clos- 
 est logic, and so appear when well under- 
 stood and explained ; though by being mis- 
 undersood and' misapplied they are often 
 made use of as instruments of chicane." 
 
 See title page of Martin on Common 
 Law Procedure ; False and Sham Plead- 
 ings ; Graver. 
 
 The importance of pleadings can only 
 be appreciated by those who view them 
 from the conserving principles of proce- 
 dure, and upon what these depend, namely 
 the mandatory record, §§ 83-123, Gr & 
 Rud. 
 
 From those matters only can pleading 
 and important rules of evidence be rightly 
 learned, perceived and understood. See 
 Identification ; Variance ; Departure ; 
 Certainty. The fountains must be 
 sought. See Equity. Unless these are 
 known the study of procedure is "a grope 
 in the dark." Bliss PI. 141. Melius 
 petere fontes quanz sectari rivulos. 
 
 The law of the denial, L. C. 34-44, Gr. 
 & Rud., should be considered. As it is to 
 the denial so it is to the allegation, the 
 admission and the issue. It is a Babel. 
 In several states pleadings are made in- 
 struments of chicane. See Theory of 
 the Case. They are not viewed from the 
 grounds and rudiments of law. See 
 Dolus ; General Denial ; General Is- 
 sue ; Conclusions. 
 
 46. IVEBSLIE V. SPAULDING (1873), 
 32 Wis. 394 ; 2 Cool. Tax. 919, 930, 936. 
 Cited, Hughes' Conts. 
 
 Cited, pp. 15, 16 ; §§ 1. 5a, 9, 13, 15, 24, 29, 
 44, 72, 73, 76, 98, 104, 105, 110, 122, 126, 
 
 Leading Cases. — 46. Iverslie. 
 
 142, 145, 170, 186, 187, 188, 200, 239, 
 245, Hughes' Proc. 
 
 Cited, §§ 59, 108, 119, 125, 180, 210, 218, 
 224, 269, 272, 278, Gr. & Rud. 
 
 An affidavit for publication of notice of a 
 tax sale must be and appear of record. 
 Rustin v. Merchants' Bk. : 134. 
 
 "What ought to be of record must be proved 
 by record and by the right record." § 
 104, Gr. & Rud. See Crain v. U. S. : 
 Cases. Oral Evidence. Best, Ev., §§ 
 417-422, 427, 543; Freem. Judg. 76; 
 Haven, 121 Mich. 51, 80 Am. St. 477- 
 484, n., 1 Gr. Ev. 19, 538 ; Martin v. 
 Barber (1891), 140 U. S. 634; Cool. Tax. 
 926 ; Deputron, 121. 
 
 The mandatory record must be under- 
 stood. Its necessity will appear from 
 both preceding and following cases. It 
 is a first requirement of limited govern- 
 ment, and of its procedure. To impress 
 its uses we further observe : 
 
 "A record imports absolute and complete 
 verity. It is neither to be increased nor 
 diminished by averment out of or beyond 
 the record. It is to the record as the law 
 and the testimony which the pleader re- 
 fers his claim." Miller. 35 N. J. Law, 
 389; Dimick, 21 Vt. 569, 578; Freem. 
 Judg. 35, 37, 76, 80 Am. St. 481, n. ; 
 Campbell v. Greer ; Mobley v. Nave. 
 
 There can be no wal levy and collection of 
 a tax. Martin ; Mosher : 125 ; Welty, As- 
 sess., §§ 279, 283. 
 
 Statutory tribunals, e. g., boards of county 
 commissioners, must make and keep a 
 record. Brown : 131. See Galpin ; Walker : 
 118 (justice must keep a record, and to 
 it applies Expressio unius, etc.), Martin; 
 Runkle: 120; Piper: 113; Hannah: 128. 
 
 Public corporations must comply with the 
 law; this is mandatory. Hunt v. Wimble- 
 don Local Board (1878), 3 C. P. D. 208- 
 215, 4 C. P. D. 48-62, 16 Rul. Cas. 237; 
 Young v. The Mayor, 8 App. Cas. 517- 
 529, 16 Rul. Cas. 654, n. ; School Dis- 
 trict, 115 Pa. 559, 9 Atl. 64, post; 1 
 Dill. Munic. Corp. 301 : cases, 449 ; Jor- 
 dan v. School District (1854), 38 Me. 
 164, 1 Beach, Pub. Corp. 377, 378. 
 
 Courts that construe statute commands 
 away as to what a complaint or other 
 pleading shall contain, or what shall be 
 shown from a docket or record, deny the 
 above rules. De non apparentibus, etc. : 
 Max. No. 2, §§ 78-85, Hughes' Proc. 
 
 Leyislath-e journals are exclusive and con- 
 clusive. Taylor v. Beckham (1900), 178 
 U. S. 548: cases, Suth. Stat. 27-54. 
 
 Mandatory record is an implication. 
 Freem. Judg. 35, 37, 76. See id. It is 
 not a subject of waiver or of contract. 
 See Constructive Notice ; Collateral 
 Attack. Campbell v. Porter ; People's 
 Bank v. Calhoun. But see Hume (Colo.) 
 
 Jurisdictional facts not supplied with favor. 
 Hannah, 128. See 81 Am. St. 535-562; 
 Dovaston ; Verba fortius, etc. 
 
 Titles to property are founded on records 
 and official deeds as well as private deeds. 
 Therefore it is important for all to un- 
 derstand the necessity for and the sum- 
 
DATUM POSTS. 
 
 39 
 
 Leading Cases. — 46. Iverslie. 
 
 ciency of a record or a judgment or de- 
 cree or a sheriff's or a tax deed as well 
 as of any other kind. See Constructive 
 Notice ; Deputron ; Hume. There must 
 be pleadings. And they must be certain. 
 Fabula non judicium. And each pleading 
 should perform its proper function, and 
 appear at the right place, at the right 
 time, and from the right hand. Construc- 
 tive notice requires this. The division of 
 state power also requires it. The re- 
 quirements for the conserving principle of 
 procedure depend upon the mandatory 
 record. §§ 1-10, Hughes' Proc. ; §§ 83- 
 123, Gr. & Rud. ; L. C. 1-79, infra. 
 
 What ought to be of record must be proved 
 by record and the right record; Windsor. 
 
 46a. MOBLEY v. HAVE (1878), 67 Mo. 
 546-550. 
 
 Oral evidence is inadmissible to impeach 
 record evidence in a collateral proceeding. 
 If a record shows a court was adjourned 
 on a certain day, such record is con- 
 clusive of that fact. Such record can 
 only be corrected in a direct proceeding. 
 Campbell v. Greer : 2a. 
 
 "Proceedings in a court of record can only 
 be known by the record" (549), what 
 ought to be of record must be proved by 
 record, and by the right record. 105 Mo. 
 Ap. 1, 694 ; Planing Mill Co. v. Chicago. 
 
 47. MONTGOMERY BEES BOTTLING 
 WORKS v. GASTON (1899), 126 Ala. 
 425, 51 L. R. A. 396, 26 So. 497, 85 Am. 
 St. 42 ; cited, Hughes' Conts. 
 
 Record defined; loose file papers do not con- 
 stitute. A constitution requiring a rec- 
 ord means a bound volume deposited with 
 the secretary of state, and' not loose file 
 papers. See Constructive Notice. Tax- 
 ation proceedings must be of record. 
 Rustin ; Moser. Tribunals must speak 
 by their records. Iverslie ; Mobley v. 
 Nave ; People's Bank v. Calhoun ; 1 
 Freem. Judg. 37, 76. 
 
 Legislative journals as evidence of the pas- 
 sage of statutes. 47 Am. St. 814-823, 
 51 Am. Dec. 616-623 ; 75 Am. St. 889 ; 
 Suth. Stat. 27-50. 
 
 48. BATJEBMAN V. BADENIUS (1796), 
 7 Term. Rep. (D. & B.) 663, 2 Esp. 633, 2 
 Sm. L. C. 1001-1025 (8th ed.) ; omitted 
 in 9th ed. ; 6 Mews' B. C. L..498, 690. 
 
 Cited, §§ 120, 135, 223, 230, 306, 334, 
 Hughes' Proc. 
 
 Oral evidence to add to record; res ad judi- 
 cata. Real party directing, controlling 
 and managing litigation may be shown by 
 oral proofs. Cromwell ; Lovejoy ; Brown, 
 21 Colo. 309, 52 Am. St. 228, Herm. 
 Estop. 156, 186 : cases', 2 Smith, L. C. 955 
 (Sth ed.), 2 id. 801 (side p. 683, 7th ed.) ; 
 cases, 1 Bailey, Jurisdic. 256 : cases ; 
 Bridges v. McAllister (1899), 106 Ky. 
 791, 45 L. R. A. 800. 
 
 Records are irrefragable as to issue. Mon- 
 del: 77. 
 
 Liability of one carrying on litigation in 
 the name of another. Getchel Co., 117 la. 
 180, 62 L. R. A. 617, n. (Costs.) A re- 
 ceipt is not conclusive evidence against 
 a party who signs it. Bauerman ; 1 Gr. 
 Ev. 212, 305 ; 2 id. 516. See Receipt. 
 
 Leading Cases. — 
 
 49. STTJBBINGS V. EVANSTON (1895), 
 156 111. 338. Records from superior courts 
 must be certain. That they are coram 
 judice must affirmatively appear. People's 
 Bank v. Calhoun. For this a placitum is 
 necessary ; and this must correspond with 
 the bill of exceptions as to who tried the 
 case. In Colorado, even where records are 
 waived, nevertheless a placitum must ap- 
 pear and technically attest facts, or the rec- 
 ord will not be opened, except to see that 
 there is a judgment to reverse. Skinner. 
 
 A placitum must affirmatively appear; its 
 omission cannot be aided by the- statutory 
 record. Planing Mill Co. v. Chicago: 2d; 
 1 Freem. Judg. 77. Still, it is held that 
 a record, without a placitum to prove 
 judgment, must be objected to. Hyde, 75 
 111. 381. 
 
 Plaintiffs — appellants — are charged 
 with making a proper record. McArthur : 
 99. See Appellate Procedure ; Conduc- 
 tors, etc. ; Garland : 294, 60 ; Best, Bv. 
 252. 
 
 50. BBITTAIN V. KENNAIBD (1819), 1 
 Brod. & Bing. 432 (5 E. C. L. R. 725). 
 Gow. 164, 4 Moore, 50, 21 R. R. 680, 
 Smith, Cas. Torts, 645, Bailey, Jurisdic. 
 83, 15 Ind. 395, 421: cases, Whart. Ev., 
 6 Mews' B. C. L. 
 
 Records are conclusive evidence. Mondel : 
 77. See Res Adjudicata; 1 Gr. Bv. 275, 
 n. (oral evidence) ; Expressio unius, etc. 
 See Records. 
 
 Brittain stated: Trespass for seizing and 
 taking possession of a certain vessel 
 called The Phoenix, and detaining the 
 same, with five hundred pounds of gun- 
 powder. Plea, general issue. At the trial 
 plaintiffs offered to prove that the vessel 
 was not a boat within the meaning of a 
 statute authorizing the seizure and for- 
 feiture of the boat. Defendants relied 
 upon a justice's record, regular upon its 
 face, which found that the vessel was a 
 boat, and this record was held irrefraga- 
 ble and conclusive. See Needham : 261. 
 Res Adjudicata Posito. 
 
 Record in one case, when admissible in 
 another. Wagner : 290 ; Boileau : 43. 
 
 51. HAVSWIBIE V. SULLIVAN (1886), 
 6 Mont. 203, 9 Pac. Rep. 978 ; Brown, 
 Jurisdic. 
 
 Cited, p. 16, §§ 5, 31, 52, 147, Hughes' Proc. 
 
 Cited, §§ 70, 108, 240, Gr. & Rud. 
 
 Returns of officers of service of process may 
 be impeached. Ex dolo malo, etc. ; Need- 
 ham ; Campbell, etc., Co., 50 Neb. 283, 
 61 Am. St. 573, n. ; Aid. Jud. Writs ; 
 Smith, 11 Colo. Ap. 284 ; Week, Attys. 
 204. See Bailey, Jurisdic. 147 ; McClung, 
 47 W. Va. 150, 81 Am. St. 785. 
 
 Sunday; process . cannot be sefved upon. 
 Hauswirth ; S. v. Conwell : 174. 
 
 Setting aside judgments. Hauswirth ; 
 Ferguson : 264 : Furman : 262 ; 2 Page 
 Conts. 1209. 
 
 Record; setting aside for fraud. 
 
 Amendment of return not allowed after suit 
 commenced to set aside the judgment. 
 Smoot, 161 Mo. 673, 84 Am. St. 738. 
 
 Returns conclusive in collateral proceedings. 
 Michels, 52 Mich. 260 ; Rood, Garnish. 83^ 
 
40 
 
 DATUM POSTS. 
 
 Leading Cases. — 51. Hauswirth. 
 
 Return of officer not conclusive in habeas 
 corpus. Hardigan, 57 Vt. 100, 5 Am. Cr. 
 R. 269. 
 58. PYM V. CAMPBELL (1856), 6 El. & 
 Bl. 370 (88 B. C. L. R.), Thayer, Cas. Ev. 
 867 ; Davis v. Jones, 17 C. B. 625 ; Fur- 
 ness v. Meek, 27 L. J. Exch. 34 ; Laws. 
 Conts. 376 ; 2 Page Conts. 1209. 
 Cited, §§ 6, 38, 42, 46, 84, Hughes' Conts. 
 Cited, §§ 218, 272, 287, Gr. & Rud. 
 
 See Oral Evidence. Cited, §§ 29, 180, 
 186, 186a, 191, 216, 223, 225, 227, 234, 
 Hughes' Proc. 
 Oral evidence; admissibility of, to affect a 
 writing. See Oral Evidence ; Commer- 
 cial Paper ; 43 L. R. A. 449-487 ; 
 Brown : 54 ; Jamestown, etc. Ass'n, 172 
 N. T. 291, 92 Am. St. 740 ; eases (strict 
 rule applied to note) ; Harris, 56" Am. St. 
 659-672, ext n. ; Malpas, 1 L. R. C. P. 
 336, H. & R. ; 1 Chit. 159, 1 Add. Conts. 
 243 ; Bro. Max. 835, Laws. Conts. 378 ; 
 2 Whart. Ev. 1026 ; Lindley, 17 C. B. 
 (N. S.) 573 (112 E. C. L. R.). Jones, 
 Construe. Conts. 137 (collateral oral 
 stipulation adding to a contract) ; Allen 
 v. Pink, 4 M. & W. 140, Jones, Construe. 
 Conts. 132 (oral warranty admitted if 
 writing is informal) ; Filkins, 24 N. Y. 
 338 ; Hersom, 21 N. H. 224. 
 Evidence; construction; contemporaneous 
 parol (oral) evidence is inadmissible to 
 alter or vary a written contract. But a 
 supplementary contract may be shown. 
 Malpas, Jones, Construe. Conts. 126-141. 
 See Goss ; Blackett ; Wigglesworth ; Har- 
 per v. City. A modified or abandoned 
 contract may be shown. Mackenzie, 126 
 Cal. 591, 77 Am. St. 209, n. Lippincott, 
 119 Wis. 573; id. 635. 
 Commercial paper from necessity must be 
 in writing, and from this idea it must be 
 certain. Consequently Expressio unius 
 est exclusio alterius applies to it with 
 great strictness. Therefore what the note 
 or bill expresses is exclusive, and oral 
 evidence is inadmissible to alter or vary 
 it. The integrity of commercial paper 
 depends on the writing expressing the 
 contract and all of the contract. Any 
 other view would be destructive of the 
 end to be secured and of the philosophy 
 of the negotiable instrument, especially 
 if transferred according to its purpose 
 of creation and design. Vt res magis 
 valeat quam pereat is strictly applied for 
 the bill or note, • and almost as strictly 
 for a deed. Elwell ; Sturdivant : 410. 
 Sealed instrument while it is executory 
 cannot be altered or varied. 56 Am. St. 
 669-670"; Contra cases. 
 S3. WOOLLAK v. HEAKN (1802), 7 
 Ves. .Tun. 211, 32 Eng. Rep. 86, 2 Lead. 
 Cas. Eq. 920-1040, n. ; 2 Page Conts. 1191 
 Cited, §§ 148, 180, 186, 186a, 191, 216, 223, 
 225, 227, 234, 239, Hughes' Proc. ; §§ 272, 
 287, Gr. & Rud. 
 Oral evidence inadmissible to alter or vary 
 a writing. Pym ; 1 Gr. Ev. 275-305 ; 
 § 87, Hughes' Conts. 
 53a. QUEEN'S CASE (THE) (1820), 2 
 Brod. & Bing. 284-315 (6 E. C. L. R.) 22; 
 
 Leading Gases. — 53a. Queen's. 
 
 1 Gr. Ev. 88, 218; Rul. Cas. 183, 2 
 Wigm. Ev. 76, 1259-1263. 
 The contents of a written instrument which 
 is capable of being produced must be 
 proved by the instrument itself and not 
 by oral evidence. The best evidence is re- 
 quired. Iverslie. 
 
 Oral admissions out of court are com- 
 petent evidence to prove a written instru- 
 ment not produced. Slatterie, 6 M. & W. 
 664-669, 1 H. & W. 16, 11 Rul. Cas. 208 
 (deed may be proved by oral admissions). 
 A document to contradict one, must 
 first be shown him and identified by him. 
 Statutes change this rule. 
 
 54. BROWN v. SPOPFOBD (1877), 95 
 U. S. 474 (24 L. ed. 508), (it Is competent 
 to show whether one signed as maker, 
 guarantor, or as indorser of a note). Con- 
 temporanea, etc. ; New England Co. ; Hor- 
 ner (duration of a lease) ; 3 Wash. R. P. 
 348, 404, 408 ; Blossom, 13 N. Y. 569, 67 
 Am. Dec. 75, n. ; Harper v. Ins. Co. ; 1 
 Beach, Conts. 719-723 ; Battler, 160 N. Y. 
 291, 46 L. R. A. 679 : cases. 
 
 Indorsement contract cannot be varied. 
 Stack, 74 Ind. 571, 39 Am. Rep. 113-123, 
 n. ; 2 Rand. Com. Paper 778, 3 id. 1903 ; 
 Sturdivant; 2 Whart Ev. 1058-1062. 
 
 55. OOSS V. NUGENT (1833), 5 Barn. 
 & Adol. 58 (27 E. C. L. R.), 2 N. & M. 
 28, Thayer, Cas. Ev. 863, notes; Finch, 
 Cas. 687; Chit., Ans. ; Hughes, Pars.; 
 
 Bish. Conts. ; Me^h., Benj., Sales; Wh. Ev. 
 901 ; 2 Kent, 499 ; 1 Gr. Ev. 305 ; Browne, 
 Stat. Frauds, Keener, Sel. Conts., Pars. N. 
 & B., Woollam: 53. 
 
 Cited, §§ 24, 186, 227, 228. Hushes' Proc. 
 
 Cited, §§ 180, 194, 280, 288, Gr. & Rud. 
 
 Where evidence in writing is required, all 
 oral evidence is excluded. Goss. See 
 Frauds and Perjuries ; Harris, 119 N. 
 C. 34, 56 Am. St. 656-672, ext. n. ; Peay, 
 48 S. C. 496, 59 Am. St. 731, n. ; New 
 Eng. Dressed Meat Co., q.v. ; 1 Chit 
 Conts. 155 ; Iverslie, 1 Mech. Sales, 472- 
 474, Solomon; O'Donnell, 43 Me. 178, 
 69 Am. Dec. 54, Huff. & W. Conts. 100. 
 
 What ought to be in writing must be proved 
 by writing, is the rule. 205 U. S. 105 
 (all prior negotiations merge). 
 
 56. M'ELMOYLE V. COHEN (1839), 13 
 Pet. (U. S.) 312, 10 L. ed. 177, 2 Am. 
 Lead. Cas.; 597-664, ext. n. Cited, § 29, 
 Hughes' Conts. 
 
 Cited, §§ 5, 7, 52, 86, 87, 152, 167, Hughes' 
 Proc. ; §§ 13, 18, Gr. & Rud. 
 
 Full faith and credit shall be given the 
 judicial records of the states. (Art. IV, 
 §1, Const. U. S.) Mills; Weeks, Att'ys, 
 204; 1 Gr. Ev. 504-506, 548; Starbuck. 
 Authentication of public records. See Au- 
 thentication. 
 
 57. MILLS v. DTJBYEE (1813), 7 
 Cranch (U. S.). 481 (3 L. ed. 411, n.), 2 
 Am. L. C. 597-634 ; stated in Borden ; An- 
 drews ; Haddock; Bailey, Jurisdic. 188, 1 
 Gr. Ev. 503-506, 548 ; 2 Tucker, Const. 
 306 (power over public acts, records, etc.) 
 
 Cited, §§ 5, 52, 86, 87, 167, Hughes' Proc. 
 
 Cited, §§ 13, 18, 268, Gr. & Rud. 
 
 Full faith and credit shall be given judicial 
 records in each state. Arrington, 127 
 N. C. 190, 80 Am. St. 791, 1 Gr. Ev. 503- 
 506 ; S. P., M'Elmoyle; Starbuck; Need- 
 
DATUM POSTS. 
 
 41 
 
 Leading Cases. — 57. Mills. 
 
 ham; Borden. Judgments of sister state ; 
 how pleaded in debt ; actions on. Star- 
 buck; Kunze, 94 Wis. 54, 59 Am. St. 
 857, n„ Weeks, Att'ys, 204, 1 Gr. Bv. 
 504-506, 548. 
 Jurisdictional inquiries may be raised to a 
 judgment. Thormann, 176 U. S. 350, 192 
 U. S. 125, 128 cited Needham, 261. 
 
 58. PENNOYEB v. NEFF (1877), 95 U. 
 S. 714 (24 L. ed. 565), McClain, Const. 
 Cas. 1032 ; 69 L. R. A. 674 J 203 U. S. 
 164; 204 U. S. 16; 205 U. S. 149 (Audi 
 alteram partem) ; Windsor : 1 ; William- 
 son : 65 ; Brown, Jurisdic. S. P. in Free- 
 man, 119 U. S. 185; Hinton, 126 N. C. 
 18, 78 Am. St. 636 (extra-territorial ju- 
 risdiction of the states), 34 Or. 524, 75 
 Am. St. 669 : cases ; Windsor ; Carr v. 
 Brown, sub, Murray's. 
 
 Cited, pp. 11, 41; §§ 8, 20, 24, 27, 51, 52, 
 57, 73, 104, 105, 137, Hughes' Proc. ; §§ 
 93, 119, 124-128, 132, 201, 203, 214, 267, 
 268, Gr. & Rud. 
 
 Personal service of process essential for an 
 in personam judgment. Pennoyer, 94 Am. 
 Dec. 768; Clark v. Wells (1906), 203 
 U. S. 164 ; Haddock ; Williamson : 65. 
 
 All process is domestic. Ableman. See 
 R. S. U. S. 738; Mercantile, 10 Fed. 604 
 (process may be sent abroad) ; 78 Am. St. 
 636; Lynde, 162 N. Y. 405, 76 Am. St. 
 332, n. 
 
 Service by publication. Pennoyer ; Gal- 
 pin : 63 : 65 ; Stewart, 45 W. Va. 734, 44 
 L. R. A. 101 ; Cooper v. Reynolds ; Bailey, 
 Jurisdic. 23-56. Haddock. 
 
 Affidavit is jurisdictional. Duxbury, 78 
 Minn. 427, 79 Am. St. 408. 
 
 One claiming an adjudication must prove it. 
 Williamson : 65 ; Windsor v. McVeigh ; 
 Audi; Clem. 
 
 Judgments depending for their validity 
 on an attachment of property. Miller v. 
 White (1899), 46 W. Va. 67, 76 Am. St. 
 791-805, n. 
 
 59. RICXETSON V. RICHARDSON 
 (1864), 26 Cal. 149; Ror. Interstate Law, 
 178, 40 Am. St. 436, 1 Fost. Fed. Prac. 
 97, Suth. Stat. 394. 
 
 Cited, §§ 70, 81, 104, 105. 109, 112, 186, 190, 
 243, 321, Hughes' Proc. 
 
 Audi alteram partem; jurisdiction; manda- 
 tory and directory statutes; service by 
 publication; provisions for must be strict- 
 ly complied with. Ricketson ; Coffin, 22 
 Nev. 169, 58 Am. St. 738 ; Galpin : 63 ; 
 Pennoyer ; Guaranty Co., 139 U. S. 137 : 
 cases ; Beckett, 15 Colo. 281, 22 «Am. St. 
 399, n. ; O'Rear, 8 Colo. 608 ; Strode, 6 
 Idaho, 67, 96 Am. St. 249-255 ; cases. 
 
 Process, presumption to support. Bank ; 
 148 Calif. 285, 113 Am. St. 285-291. 
 
 A strict statutory power or right has every 
 intendment against it, and therefore the 
 rule is that it must affirmatively appear. 
 Jurisdictional facts are not presumed nor 
 supplied by intendment. They must ap- 
 pear. Bloom ; Piper ; Russell v. Mann ; 
 Williams v. Hingham ; Williamson v. 
 Berry: cases. Clem. See Harrow. 
 
 Record must affirmatively show the facts. 
 Roberts, 3 Colo. Ap. 6 ; Wap. Attach. 351 ; 
 
 Leading Cases. — 59. Ricketson. 
 
 McGaherr, 6 la. 331, 71 Am. Dec. 421, 
 n. ; Strode. See Ell. App. Proc. 717. 
 
 Affidavit to authorize publication must be 
 sufficient upon its face and within its own 
 four corners; it cannot be aided; refer- 
 ence to other documents will not aid it. 
 The maxim Verba relata hoc maxime, etc., 
 does not apply. Ricketson ; Beckett 
 Colo.) supra; Van Fleet, Coll. Att. 330. 
 Probative facts must be stated. Palmer, 
 13 Mont. 184, 40 Am. St. 434, n. ; Frisk, 
 post. 
 
 Jurisdiction of court; when presumed. Ad- 
 ams, 95 Mo. 501, 6 Am. St. ; Hannah ; 
 Nixon ; Piper ; Ransom ; Harvey ; Dob- 
 son ; 232a. Presumptions from the rec- 
 ord. Roosevelt, 108 Wis. 653 (No pre- 
 sumption against the record). 
 
 The strictness of the rule in making 
 notice by publication arises from the re- 
 quirements of constructive notice and to 
 comply with the rule in Ransom ; Hahn. 
 One interested in the proceedings is 
 presumed vigilant and present at each 
 step, but only so long as each step is 
 shown and is sufficient; for the moment it 
 is insufficient, or is not shown, this dis- 
 misses such a party sine die. The chain 
 for continuity must be present and per- 
 fect. This rationale must be mastered. 
 It extends throughout taxation and other 
 proceedings as well. Drew. 
 
 May be amended (when there is some- 
 thing to amend by). Frisk, 75 Wis. 479, 
 17 Am. St. 198, n. ; Long, 45 Kan. 271, 
 23 Am. St. 724. 
 
 Newspapers ; what are] for publication of 
 notices. Lynch, 101 Mich. 171, 45 Am. 
 St. 404, n. ; Lynn, 145 Ind. 584, 57 Am. 
 St. 223, n., 33 L. R. A. 779 ; Hanscom, 
 60 Neb. 68, 48 L. R. A. 409. 
 
 Publication of notices; generally. Wade, 
 Notice, 1025-1089 ; Van Fleet, Coll. Att. ; 
 Moyer, 2 Ind. Ap. 571, 16 L. R. A. 231- 
 236, ext. n. Judicial sales; publication 
 of notice of. Wade, Notice, 1086-1104. 
 Execution sale; officer liable for failing 
 to give notice. Sub, Six Carpenters' Case. 
 Knowledge of proceedings not sufficient; 
 notice according to law must be given, 
 and it must appear from the judgment 
 roll. Strode. 
 
 60. GAELABD v. DAVIS (1S46), 4 How. 
 (U. S.) 131 (11 L. ed. 907). 
 
 Cited, 5§ 9, 26, 29, 72, 73, 113, 126, 142, 
 145, 157, 168-170, 173, 180, 186, I860, 
 217, 241, 251, 304, Hughes' Proc. 
 
 Cited, §§ 272, 278, Gr. & Rud. 
 
 Garland stated: Action on the case aris- 
 ing from breach of contract. Plea, non 
 assumpsit. Trial by jury ; finding for 
 plaintiff on the issue, which was on the 
 promise out of which the tort arose, and 
 nothing more (this was immaterial) . No 
 objection was made below by the defend- 
 ant, nor in the assignment of errors, nor 
 otherwise in the supreme court. Held, 
 that the court would sua sponte take no- 
 tice that an immaterial issue was in- 
 volved, and that there was no material 
 issue, and that the verdict shows that 
 
42 
 
 DATUM POSTS. 
 
 Leading Cases. — 60. Garland. 
 
 there was nothing material passed upon ; 
 that there was no substantial issue, and 
 therefore that the trial was a nullity. 
 Courts sua sponte notice error from the 
 mandatory record. Campbell v. Porter : 
 2 ; V. S. v. Burnham (1816), 1 Mason, 57 ; 
 stated, 4 How., p. 143, where the court 
 sua sponte took notice of the defect, which 
 was the sole ground of its opinion. S. P., 
 in Patterson v. U. S. (1817), 2 Wheat. 
 221 (verdict variant from pleadings) ; 
 Gall, 66 111. Ap. 478 ; Harrison v. Nixon 
 (1835), 9 Pet. 483, 535 (evidence is 
 irrelevant where there are no allega- 
 tions) ; Shutte ; 4 How. 143 ; Thomas v. 
 Mackey ; Be non apparentibuSj etc. 
 
 Allegata et probata must correspond. 4 
 How. 148, 11 L. ed. 915 ; Bristow. Irrele- 
 vant evidence is incompetent evidence. 
 Shutte ; Thomas v. Mackey ; Actore non 
 probante, etc. ; Frustra probatur, etc. 
 
 The record must be sufficient to support 
 a judgment. Garland ; Windsor ; Harri- 
 son v. Nixon, supra; U. S. v. Cruik- 
 shank. The above requirement is not a 
 subject of waiver, nor of consent, nor of 
 acquiescence, nor of contract. Consensus. 
 Amendment allowed where immaterial 
 issue was joined. Garland. But not after 
 a hearing upon the merits. Walden. 
 
 An answer must be pleaded and also 
 be sufficient. Garland ; J' Anson ; Skeate ; 
 Pom. Rem. 549, 550 ; Bliss, PI. 422-424 ; 
 Cromwell (defenses not pleaded are for- 
 ever' waived). 
 
 A bill in equity must be sufficient. Har- 
 rison v. Nixon, supra; Sto. PI. 4, 10, 257, 
 259 ; Rushton ; Windsor ; Thomas v. 
 Mackey. A bill is as strictly judged as 
 an indictment ; if either fails, then Debile 
 fundamentum fallit opus applies. 
 
 A verdict must be sufficient. Patterson 
 ■/. V. S., supra. 
 
 There are inherent differences in ac- 
 tions ex delicto and ex contractu. Gar- 
 land. These cannot be joined. Kewau- 
 nee ; B'rugger. 
 
 Record proper controls ; and lower court's 
 construction and views are immaterial. 
 Hall, 8 Colo. 103. See Theory of the 
 Case. 
 
 What may be waived in judicial pro- 
 cedure is a leading question and is at- 
 tended with very important views, and is 
 a phase of contract which we singularly 
 ■seek to impress. Cases like Garland, 
 Campbell v. Porter and Gentry, will pro- 
 foundly interest the practitioner. Gar- 
 land v. Wholebau : 297. 
 
 61. SANBORN v. SANBORN (1S56), 7 
 Gray (Mass.) 142. Cited, §§ 31, 104. 107, 
 126. 156, 158, 309, Hughes' Proc. : § 239 
 Gr. & Rud. 
 
 Statutory construction. A court must have 
 jurisdiction of a subject-matter when a 
 suit is commenced ; its subsequent pre- 
 sentation or acquisition will not do. Quod 
 -ab initio non valet, etc. ; Buck, 16 Gray 
 555. A reply cannot by relation confer 
 jurisdiction ; until a court acquires juris- 
 
 Leading Cases. — 61. Sanborn. 
 
 diction of a subject-matter it can make 
 no valid order. Shutte : 291. 
 
 Proceedings are instituted by filing a state- 
 ment of claim with the clerk, is a univer- 
 sal rule in all systems. Declaring this 
 "rockribbed and ancient" rule in codes-~ 
 judicature acts — does not constitute it 
 new law. Indianapolis, etc. R. R. ; Fost. 
 Fed. Prac. 465. 
 
 How a court may acquire jurisdiction 
 of a subject-matter is mandatory, and 
 cannot be waived. Such requirements are 
 a part of due process of law. Derogation 
 from these requirements attacks the con- 
 serving principles of procedure. 
 
 .1 plaintiff must show his right in his plead- 
 ing to claim that a federal question is 
 involved. Spencer v. Duplan Silk Co., 191 
 U. S. 526 ; Boyd ; Winona. 
 
 62. BOYD V. BLANKMAN (1865), 29 
 Cal. 19, 87 Am. Dec. 146, n. ; Zinn L C 
 Trusts, 147. 
 
 Cited, §| 5a, 29, 73, Hughes' Proc. 
 
 Cited, §§ 230, 231, Gr. & Rud. 
 
 Aider by pleading over is a part of the doc- 
 trine of the theory of the case. It is a 
 part of Consensus tollit errorem. From 
 many decisions the reader will find ample 
 reason to suppose that there are no de- 
 fects that cannot be cured by waiver or 
 pleading over. Elsewhere we observe that 
 the code provision — that filing an answer 
 waives all defects except jurisdiction of 
 subject-matter and a sufficient descrip- 
 tion of a particular matter — has been 
 construed away in several code states. 
 This forbidden construction proceeds upon 
 the theory of pleading over — upon waiver. 
 It proceeds in rude and ' thoughtless dis- 
 regard of the conserving principles of 
 procedure, and of the means of their ex- 
 istence. Kewaunee. See Collateral At- 
 tack. 
 
 Aider by pleading over is almost wholly 
 confined to common-law civil cases, and 
 in some code states that have adopted the 
 extreme views of the theory of the case. 
 It is opposed to the rule that the general 
 demurrer searches the whole record and 
 attaches to the first fault ; and also the 
 maxim Quod ab initio non valet intractu 
 temporis non convalescit. 
 
 A bill in equity cannot be aided. Sto. PI. 
 10, 257 ; Belew, 56 Miss. 346 ; 1 Encyc. 
 PI. & Pr. 927 ; 3 id. 357, 358 ; Beach, Bq. 
 Pr. 95-100 ; Windsor : 1. 
 
 FrTim the following decisions the case 
 law on the subject may be judged. 
 
 A reply may aid an answer. Gaskins, 115 
 N. C 85, 44 Am. St. 439. 25 L. A. 813. 
 Contra: Webb v. Bidwell (1870), 15 Minn. 
 479, 485; Wyatt: 31 Oreg. 48, 2 Cyc 
 691. See Reply. 
 
 Answer may supply essential facts. Ogden, 
 60 Ark. 70, 46 Am. St. 151, Pom. Rem. 
 579 : cases, 4 Encyc. PI. & Pr. 60S. 
 
 A plea may be aided by a replication. 
 
 Deitsch, 1 Colo. 299, 306. But proofs 
 
 cannot aid. Deitsch ; Thomas v. Mackey 
 
 (Colo.). 
 
 Taking leave to plead after demurrer is 
 
DATUM POSTS. 
 
 43 
 
 Leading Cases. — 62. Boyd. 
 
 waiver of formal and dilatory defects. 
 Stanberry, 6 Colo. 28. And may operate 
 far beyond that. Hume. Substantial de- 
 fects may be cured by answer or by 
 proofs. Fairbanks, 8 Colo. App. 190. 
 
 A complaint may be aided by a reply. 
 Johnson, 12 Colo. Ap. 17. 
 
 The foundations for a judgment may be 
 found in the statutory record. Holman, 
 8 Colo. Ap. 285, 286 ; Hume. Contra : 
 Jansen, 8 Colo. Ap. 38, 40 (complaint 
 must be sufficient) ; Robinson: IV (strict- 
 er than Rushton) ; Bliss, PI. 417. 
 
 Facts conferring jurisdiction upon federal 
 courts must affirmatively appear. Cras- 
 well ; Cruikshank. Subsequent pleadings 
 will not supply such facts. Consolidated, 
 etc. Co. v. Turck (1893), 150 U. S. 138; 
 Devine v. Los Angeles. 
 
 Admissions in an answer will not operate 
 to aid. 3 Bncyc. PI. & Pr. 358. Denials 
 will aid. Pom. 579. Conclusions of law 
 cannot be aided, is the general rule. 
 
 A cause of action cannot be brought for- 
 ward by a reply. A reply will not aid 
 a complaint. 177 U. S. 78. Reply ; Pom. 
 Rem. 579 ; Spencer v. Duplan, sub, San- 
 born : 61 ; Windsor : 1. 
 
 Compelling one to plead facts the ad- 
 verse side should plead and prove, need 
 not be proved by one so forced to plead 
 them. Bliss, PI. 417. Orders of court can- 
 not override general laws. Ransom : 122. 
 
 A trustee cannot deal with the trust estate. 
 Boyd; Otis, 107 Mich. 312, 2 Am. & Bng. 
 Eq. Cas. 284-294, ext. a, ; Keech. 
 
 63. GALPIN v. PAGE (1874), 3 Saw- 
 yer, 93-128, 3 So. Law Rev. 713, 1 Am. 
 Law Times Rep. (N. S.) 523, 1 Cent. Law 
 Jour. 491, Fed. Cas. No. 5206 (service 
 by publication). 
 
 Cited, §§ 91, 93, 115, 119, 124, 125, 152, 
 157, 159, 214, 241, Gr. & Rud. 
 
 Presumptions in favor of judgments. Gal- 
 pin ; Ferguson: 264; Hahn (liberal rule). 
 
 Service of process by publication; history. 
 
 "According to the due course of the com- 
 mon law"; meaning S. v. Baughman : 268. 
 Infants : service of process on. Galpin ; 
 Westmeyer v. Gallencamp (1900), 154 Mo. 
 28, 77 Am. St. 747, n. (Expressio unius, 
 etc., cannot waive a summons). 
 
 64. GALPIN v. PAGE (1873), 18 Wall. 
 (U. S.) 350, 21 L. ed. 959 (3 Sawyer, 93- 
 128), stated, 34 Oreg. 527, 75 Am. St. 761, 
 2 Tucker : Const. 306 ; Kempe's Lessee ; 
 Crepps ; Ransom ; Omnia prwsumuntur 
 rite, etc. 
 
 Judgments depending for their validity 
 
 on an attachment. Note, 76 Am. St. 
 
 800-805 ; Drake, Attach. 101. Probate 
 
 proceedings ; presumption of regularity. 
 
 Note, 81 Am. St. 535-562. 
 Statutory powers must be strictly pursued. 
 
 •Hastings, 39 Cal. 137 ; Nelson : 129 ; 
 
 Kempe's : 115 ; Walker : 118 ; Piper : 114. 
 The mandatory record must show statutory 
 
 powers were strictly pursued. Galpin ; 
 
 Blair ; Hannah ; 2 Cool. Tax. 926 ; Ivers- 
 , lie: 46 v Due process of law requirements. 
 
 204 U. S. 16, 17. 
 
 Leading Cases. — 
 
 65. WILLIAMSON V. BEEST (1850), 8 
 How. 495. Quoted and followed : Guaran- 
 ty Trust Co., 139 U. S. 137, 147 : cases ; 
 cited, Ror. Jud. Sales, Bisph. Eq., Sto. Eq., 
 Herm. Ex. q. v., 2 Freem. Ex., 204 U. 
 S. 16. 
 
 Cited, §§ 8, 12. Hughes' Proc. ; §§ 124, 128, 
 200, Gr. & Rud. 
 
 Judicial sales; constructive notice; con- 
 firmation necessary. A sale ordered, de- 
 creed or permitted by a chancellor, sub- 
 ject to the approval of a master, requires 
 the master's approval and confirmation 
 by the court before the purchaser can 
 have a legal title to the estate that * he 
 means to buy or has bid for under the 
 decree of the court. Benton ; Clark v. Sires. 
 
 Whatever notice is required for proceedings 
 must be given, and it must appear of rec- 
 ord. Nixon ; Ricketson ; Ransom ; Ivers- 
 lie. See Grogan. 
 
 A judgment of the supreme court of the 
 United States or of any court may be in- 
 quired into, and he who claims the bene- 
 fit of any proceeding must show that it 
 can be justified in law. Voorhees ; Ran- 
 som ; Audi; Horan, stating Williamson, 
 58 Am. Dec. 147, 6 How. 540 ; Windsor ; 
 Guaranty Trust Co. distinguishing Coop- 
 er v. Reynolds ; citing Webster v. Reid, 
 quoted in Windsor, therein is found : 
 
 "The case of Cooper was one where property 
 was seized by virtue of an attachment 
 taken out at the commencement of the suit 
 in which the proceedings to call in the 
 non-resident defendant were had, and the 
 record asserted that 'publication had been 
 made according to law.' Indeed, Mr. Jus- 
 tice Miller said in that case, p. 319 : 'We 
 do not deny that there are cases . 
 in which the legislature has properly made 
 the jurisdiction to depend on this publica- 
 tion o'f notice, or on bringing the suit to 
 the notice of the party in some other 
 mode, when he is not within the terri- 
 torial jurisdiction.' It was said by Mr. 
 Justice Wayne, in Williamson in reply 
 to an argument that a decree in chancery 
 could not be looked into in a collateral 
 .way, that 'it is an equally well-settled rule 
 in jurisprudence that the jurisdiction of 
 any court exercising authority over a sub- 
 ject may be inquired into in every other 
 court, when the proceedings in the former 
 are relied upon and brought before the 
 latter by a party claiming the benefit of 
 such proceedings. The rule prevails whether 
 the decree or judgment has been given in 
 a court of admiralty, chancery, ecclesias- 
 tical court or court of common law.' The 
 decisions of this court upon this subject, 
 beginning in the year 1794 with the case 
 of The Betsey, 3 Dall. 6, have been uni- 
 form and consistent. , The following are 
 a few of the leading cases upon this 
 subject : Rose v. Himely, 4 Cranch, 241 ; 
 Elliott v. Peirsol, 1 Pet. 328 ; Wilcox v. 
 Jackson, 13 Pet. 498 ; Shriver's Lessee v. 
 Lynn, 2 How. 43 ; Lessee of Hickey v. 
 Stewart, 3 How. 750 ; Webster v. Reid, 11 
 How. 437. In the last case it was held 
 that where jurisdiction had been sought to 
 be obtained by publication, as in this case, 
 it was necessary to show that notice had 
 been given by publication as the act re- 
 quiredi 'If jurisdiction,' says the court, 
 'could be exercised under the act, it was 
 essential to show that all its requisites 
 
44 
 
 DATUM POSTS. 
 
 Leading Cases. — 65. Williamson. 
 
 had been substantially observed. It was 
 necessary for the plaintiff to prove notice, 
 and negative proof that the notice was not 
 given, under such circumstances, could not 
 be rejected.' In Hunt v. Wickliffe, 2 Pet. 
 201, an order was made by a state court 
 of chancery for a non-resident to appear, 
 and that a copy be published 'for eight 
 weeks in succession agreeably to law,' and 
 it was held that, as the laws of Kentucky 
 only authorized their courts of chancery to 
 make decrees against absent defendants on 
 the publication of an order for two months 
 successively, the order of the court of 
 chancery for a publication for eight weeks 
 was not a compliance with the law, the 
 supreme court of Kentucky having decided 
 that the publication must be continued for 
 two calendar months. Under this con- 
 struction of the act, the decree was made 
 against persons who were not parties to 
 the suit, and it was held that it could not 
 affect them. So in Galpin v. Page, 18 
 Wall 350 : 64, it was held that when by 
 legislation of a state constructive service of 
 process by publication is substituted in 
 place of personal service, the statutory 
 provision must be strictly pursued in order 
 to bind a citizen of another state not per- 
 sonally served. 'Whenever,' says Mr. 
 Justice Field, 'it appears from the inspec- 
 tion of the record of a court of general 
 jurisdiction that the defendant, against 
 whom a personal judgment or decree is 
 rendered, was at the time of the alleged 
 service without the territorial limits of the 
 court, and thus beyond the reach of its 
 process, and that he never appeared in the 
 action, the presumption of jurisdiction 
 over his person ceases, and the burden of 
 establishing the jurisdiction is cast upon 
 the party who invokes the benefit or pro- 
 tection of the judgment or decree. 
 When, therefore, by legislation of a state, 
 constructive service of process by publica- 
 tion is substituted in place of personal 
 citation, . . . every principle of jus- 
 tice exacts a strict and literal compliance 
 "With the statutory provisions' (pp. 378, 
 369). Later cases to the same effect are 
 Earle v. McVeigh, 91 U. S. 503 ; Settle- 
 mier v. Sullivan, 97 U. S. 444 ; Cheely v. 
 Clayton, 110 U. S. 701 ; Applegate, 117 U. 
 S. 255. And there is scarcely a state in 
 the Union in which the same principle has 
 not been announced and re-affirmed." 139 
 U. S. 146-148 ; Ricketson. 
 
 Infants; equitable jurisdiction over. Wil- 
 liamson v. Berry ; Bishp. Eq. 541-555 ; 2 
 Sto. Eq. 1327-1361. 
 
 Judicial sales generally; outline citation. 
 Ror. Jud. Sales ; Preem. Void Jud. Sales ; 
 Van Fleet, Coll. Att. 781-791. When set 
 aside. Schroeder, 161 U. S. 334 (40 L. 
 ed. 721, n.). Constructive Notice fhom 
 Records. 
 
 66. OAKLEY V. ASFHIWALL (1851), 4 
 N. Y. 514, 525, End. Stat. 348, 428, 430. 
 See Oakley v. Aspinwall : 222 (no one can 
 judge his own cause). 
 
 Cited, pp. 32. 33 ; §§ 5, 5b, 7, 9, 11, 17, 28, 
 51, 62, Hughes' Proc. ; §§ 137, 197, Gr. 
 & Rud. 
 
 Notice essential and is implied; judicial 
 power cannot oe exercised without. This 
 involves the obligation of government. 
 Windsor ; Bloom ; Borden ; Starbuck ; Fer- 
 guson. Audi alteram partem: Max. No. 
 1, §§ 51-77, Hughes' Proc. 
 
 Leading Cases. — 
 
 67. WEAVER v. TOHET (1900), 107 
 Ky. 419, 21 Ky. L. R. 1157, 54 S. W. 732, 
 50 L. R. A. 105. Cited, §§ 51, 57, 87. 
 
 Audi alteram partem. Where notice might 
 or could have been given it must be given 
 before extraordinary orders are given. 
 Ransom. An opportunity to be heard is 
 an essential in due process of law. Mur- 
 ray ; Windsor : 1. 
 
 Irreparable injury that may result from 
 the delay, requisite to the giving of notice 
 for an injunction will not be sufficient 
 to justify the failure to give notice when 
 there is no excuse for not filing the suit 
 earlier, when there was time to give the 
 notice. Nullus commodum capere, etc. ; 
 
 1 Beach. Inj. 124, 125 ; Lee v. Haley, sua, 
 Seabury. 
 
 Prohibition and injunctions mandatory 
 and other orders are void, if obtained 
 without notice. It is no contempt to 
 disregard them. Arbitrary edicts are 
 entitled to no respect. P. v. Barrett 
 (1903), 203 111. 97, 96 Am. St. 742, n. 
 {Habeas corpus will relieve). 
 
 Political rights cannot be protected by 
 courts, as a general rule. See Constitu- 
 tional Law. 
 
 Judges cannot contract for nor assume 
 and exercise a lawful jurisdiction not 
 given by law ; and if they do their pro- 
 ceedings are void. Abuse of fundamental 
 rights divests jurisdiction pendente lite. 
 Weaver; Hendman v. Toney (1895), 97 
 Ky. 413 ; Windsor. Judges cannot 
 choose their cases. Cohens. Nor over- 
 ride the law with their orders. Ransom ; 
 Horan ; Munday ; Williamson v. Berry : 
 65 ; Lange : 159. 
 
 Usurpation and abuse of power vitiates all 
 official action in a constitutionalism. 
 Courts cannot make a record that will 
 bar or foreclose inquiry after their juris- 
 diction. 
 
 68. HOES V. MANIEERE (1879), 101 
 U. S. 417, 25 L. ed. 1052 (in full). § 186, 
 Hughes' Proc. 
 
 Due process of law; sale of decedent's 
 lands; notice of sale is directory, and 
 failure to give does not invalidate it. 
 Astor v. Grignon's Heirs, 2 How. 319 
 Harvey : 23 ; Brown Jurisdic. Contra, 
 Young, 145 Mo. 250, 68 Am. St. 568, 
 n. See Thatcher ; Bailey, Jurisdic. 174- 
 187 ; Wilson, 66 Cal. 243 ; Wakefield, 20 
 Me. 393, 37 Am. Dec. 60-66, Van Fleet, 
 Coll. Att. 333 ; Bloom. Collateral At- 
 tack ; Limitations ; Bradley, 1S7 111. 175, 
 79 Am. St. 214. See Audi alteram partem. 
 
 69. U. S. v. PEREZ (1824), 9 Wheat, 
 (U. S.) 579 (6 L. ed. 165, n.), 1 Lead. 
 Crim. Cas. 461-482, n. : 291, 48 Am. St. 
 206 : cited, 1 Bish. C. L. 1018, 1033, 1041, 
 
 2 Crim. Def. 915, 2 Van Fleet, For. Adj. 
 649-652, 2 Tucker, Const. 331. 
 
 Cited, §§ 6, 19, 130, 133, 136, 141-145, 
 
 Hughes' Proc. ; §§ 152, 294, Gr. & Rud. 
 Lange, Ex parte (1873), 18 Wall. 163. 
 
 205 (21 L. ed. 872. n.), Roberts v. S. 
 
 (1853), 14 Ga. 8, 50 Am. Dec. 528-549, 
 
 ext. n. 
 Disagreement of jury no jeopardy. Perez ; 
 
DATUM POSTS. 
 
 45 
 
 Leading Cases. — 69. Perez. 
 
 Thompson v. U. S. (1894), 155 U. S. 271. 
 
 Former jeopardy; when it attaches; "Due 
 process of law." A crime must be charged 
 upon the record before a constitutional 
 court. R. v. Vaux ; R. v. Vandercomb ; 
 Munday : 79 ; Moore v. C. : 21 ; S. v. 
 Thurstin. Nemo debet bis vexari; Audi 
 alteram partem; Consensus tollit errorem. 
 
 New trial in criminal case; jeopardy; 
 whether it attaches. C. v. Arnold (1884), 
 83 Ky. 1, 4 Am. St. 114, ext. n. ; C. v. 
 Green; Simmons v. U. S. (1890), 142 U. 
 S. 148, 154, 12; Windsor v. R., L, R. 
 1 Q. B. 289, 390, 6 Best & S. 143 (118 
 E. C. L. R.), and 7 Best & S. 490: 
 stated, Van Fleet, For. Adj. 652 ; Camp- 
 bell v. S. (1836), 3 Yerg. (Tenn.) 333, 1 
 Lead. Crim. Cas. (B. & H) 592-599, n., 
 30 Am. Dec. 417. Cited, Bish. C. L. 994, 
 1004; Frond v. U. S., 199 U. S. 521- 
 540 (new trial recommits prisoner to re- 
 trial on all counts; contra, cases). 
 
 Practice procedure; plea of. C. v. Fitzpat- 
 rick (1888), 121 Pa. 109, 1 L. R. A. 
 451, n., 6 Am. St. 757, Whart. Cr. PI. & 
 Pr. 435-520 ; Clark, Cr. Proc, pp. 382- 
 407 ; 1 Bish. Cr. Proc. 808-817 ; 9 Encyc. 
 PI. & Pr. 630-641 (plea of). 
 
 Indictment must be certain for plea of. 
 3* Colo. 373. Consequently pleadings 
 must be certain. See also Campbell v. 
 Porter ; also for constructive notice and 
 collateral attack. Identification. 
 
 Tests : rules for determining! when there has 
 been a jeopardy. 2 Van Fleet, For. Adj. 
 633-660. 1 Bish. C. L. 1012-1047 ; 
 Weaver v. S. (1882), 83 Ind. 542; 4 
 Crim. Law. Mag. 27-36, n., P. v. Ny 
 Sam Chung (1892), 94 Cal. 304, 28 Am. 
 St. 129, n. ; McDonald v. S. (1891), 79 
 Wis. 651, 24 Am. St. 740, n. ; S. v. McKee 
 (1830), 1 Bailey, Law (S. C), 751, 21 
 Am. Dec. 499-508, ext. n. 
 
 Once in jeopardy. 4 Crim. Law Mag. 487- 
 508, 17 Am. Law Rev. 735 ; note, 58 Am. 
 Dec. 537, 2 Kent, 12 : cases ; Coleman, 
 97 U. S. 509. 
 
 Defense of former jeopardy. 11 Crim. Law 
 Mag. 325-345, Seflgk. Stat. Law, 572, 573. 
 Must be pleaded. 1 Bish. Crim. Proc. 808, 
 814. Constitutions sometimes affect the 
 question as to second trials ; when ; S. v. 
 Anderson (1886), 89 Mo. 312. 
 
 Contempt and indictment for same act are 
 not inconsistent; they concurrently lie. 
 Re Chapman (1887), 166 U. S. 661, 1 
 Bish. C. L. 1067. 
 
 70. B. V. WAT£BTOH (1851), 17 A. & 
 E (N. S.) 562 (79 E. C. L. R.), 1 Den. 
 C. C. 365, 2 Lead. Crim. Cas. 152-163, n., 
 8 Law & Eq. Rep. 344. Cited, §§ 38, 216, 
 237, 248, 277, 286, Hughes' Proc. 
 
 Due process of law; presence of essential 
 allegations in the right record indis- 
 pensable. 
 
 R. v. W. ; Cruikshank : Huntsman ; 
 Wheatley ; Moore V. C. ; R. v. Waters ; 
 Munday : 79 ; Borkenhagen ; Rushton ; 
 Audi, etc., sub, Kingston's Case ; J'Anson ; 
 Dovaston ; Dub Process op Law. 
 Material allegations must be present; they 
 
 Leading Cases. — 70. Waverton. 
 
 cannot be waived. R. v. Waverton ; Bris- 
 
 tow : 135. Frustra probatur, etc. 1 Chit. 
 
 PI. 244 (236). And likewise in civil 
 
 cases, Id. 
 Also in equity. 1 Beach, Eq. Pr. 95, 99, 
 
 100; Sto. PI., 10. 
 The word "said" incorporates in a count a 
 
 previous description in a preceding count. 
 
 R. v. Waverton ; Blitz, R. v. Waters ; 
 
 Moore v. C. ; 5 Encyc. PI. & Pr. 320 ; 
 
 1 Bish. Cr. Proc. 431. Verba relata hoc 
 maxime, etc. 
 
 Jurisdiction depends on essential pleadings 
 and mandatory record matter. Windsor. 
 
 71. B. V. WATERS (1848), 1 Den. C. C. 
 356, Temp. & M. 57, 2 Car. & Kir. 886, 
 
 2 L. C. Cas., B. & U., 152, n. ; cited, Bish. 
 C. L. 
 
 Cited, §§ 38, 216, 237, 248, 276, 277, 281, 
 286, Hughes' Proc. 
 
 R. v. Waters stated: The prisoner was 
 charged in the first count : 
 
 "That she, in and upon a certain infant fe- 
 male child, born of the body of her, the 
 said S. W., and of tender age, to wit, of 
 about the age of two days, and not named, 
 feloniously made an assault, etc., and 
 caused to take poison, and so murdered 
 her." 
 
 In the second count: 
 
 "That the said S. W., in and upon the same 
 infant female child so born of the body of 
 her, the said S. W., and not named, as 
 aforesaid, etc., feloniously did make an as- 
 sault, and that she, the said S. W., the 
 said infant female child in and upon a 
 heap of ashes, etc., wilfully, etc., did cast, 
 etc., and did then and there leave the said 
 infant female child, etc., in the open air, 
 etc., exposed to the cold air, etc., of which 
 said exposure and of the chilling thereby 
 caused, the said infant female child then 
 and there died," etc. Held: 
 
 1st. That there is a difference between an 
 indictment which is bad for charging an 
 act, which, as laid, is no crime. Cruik- 
 shank; Moore v. C; R. v. Vaux; R. v. 
 Wheatley, and an indictment which is bad 
 for charging a crime defectively. The lat- 
 ter may be aided by verdict, the former 
 cannot. Dobson ; 1 Chit. PI. 103-707 ; 
 Ut res magis, etc. 
 
 2d. That the words "said infant female 
 child so born of the body of her, the said 
 S-. W.," did not incorporate by reference 
 the description of the child given in the 
 first count, namely, that it was of tender 
 age. 
 
 See Blitz v. U. S., which holds, to avoid 
 prolixity, one count may refer to another. 
 Consolidated Coal Co., 163 111. 393 ; 
 Ramsay, 8 Wyo. 476, 80 Am. St. 948, 
 952. 
 
 3d. That the second count was, therefore, 
 defective, in not showing that the child 
 was unable to take care of itself. 
 
 Jfth. That had the act of the prisoner 
 charged in that count been a non-feasance, 
 the indictment would have been bad after 
 verdict. 
 
 5th. That it was a misfeasance, and the 
 death of the child was alleged to have 
 been caused thereby, the defective state- 
 
46 
 
 DATUM POSTS. 
 
 Leading Cases.— 71. Waters. 
 
 ment in the indictment must be taken to 
 be supplied by the verdict. 
 
 Limits of liberal construction. Rushton ; 
 R. v. Goldsmith : 20 ; Harvey v. B. ; Dob- 
 son ; Dovaston ; J'Anson ; Moore v. C. 
 
 Pleadings; aider by verdict. Aider by ver- 
 dict cures defective allegations, but not 
 absence of allegations. R. v. Waters ; 4 
 Encye. PI. & Pr. 608, 610, 662, 743 ; 
 Rushton ; R. v. Bradlaugh ; Moore v. C. ; 
 Voorhees v. Bank ; Munday ; Boyd ; Bor- 
 kenhagen ; R. v. Waverton ; Audi, etc. ; 
 stated under Waiver. See Verba relata. 
 Hines, 57 Me. 324, 99 Am. Dec. 772. 
 
 Codes require that the facts -must be stated 
 with precision and certainty. 4 Encyc. 
 PI. & Pr. 600, 610 ; Green : 90 ; 2 Gr. Ev. 
 7, 3 id. 10. If the pleader fails, it is 
 his own fault, and Volenti, etc., applies. 
 Verba fortius, etc. Bristow : 135. 
 
 Verdict cures absence of allegations in at- 
 tachment affidavit. Leppel, 2 Colo. Ct. 
 Ap. 390 ; Rice v. Hauptman, id. 566 ; Ell. 
 App. Proc. 717. See Drake, Attach. 86- 
 110. Ricketson ; Pennoyer ; Cessante ra- 
 tione, etc. 
 
 Each cause of action must be perfect in 
 itself. R. v. Waters ; Bell v. Brown ; 4 
 Encyc. PI. & Pr. 619, 620, 623. And the 
 court will not afd the count objected to 
 by looking at another. 5 Encyc. PI. & 
 Pr. 320. {Contra cases note, id.) Verba 
 relata hoc niaxime, etc. And this is the 
 rule on demurrer. 6 Encyc. PI. & Pr. 
 298, 299. One has the right to a certain 
 and definite pleading, that he may in- 
 telligently demur to it. Id. 299 ; J'Anson ; 
 Moore v. C. ; Haskel : 101. §§ 84-123, Gr. 
 & Rud. Identification. 
 
 A court may compel separate state- 
 ments. 4 Encyc. PI. & Pr. 623. 
 
 One cause of action (count) cannot include 
 another by reference, nor any part of it. 
 And. Steph. PI. 322 ; Verba relata; 4 
 Encyc. PI. & Pr. 619-623. But after judg- 
 ment it is generally good, aided by ver- 
 dict or judgment. Waverton. Defective 
 allegations cured by verdict. Norton v. 
 S. (1894), 72 Miss. 128, 48 Am. St. 538, 
 n. Dobson : 232a. Is good though the in- 
 corporated one is bad. Crain v. U. S. 
 
 Every plea must stand or fall by itself. 
 Grills, Willes, 378 : cited. And. Steph. 
 PI. 322; 1 Chit. PI. 589; Potter, 45 Ind. 
 416 : stated, 1 Chit. PI. 589. 
 
 The rule appears less strict in criminal 
 cases. Blitz v. TJ. S., supra : cases ; 1 
 Chit. Crim. Law, 250 ; Redman v. S. 
 (1826), 1 Blackf. (Ind.) 429. 
 
 Aider by verdict; defect cured by verdict. 
 Note, 13 Fed. 654 : cases ; Rushton ; 1 
 Chit. PI. 703-707 (waiver) ; Dobson. 
 
 Aider by verdict; illustration. Indictment 
 that: 
 
 "defendant and others unlawfully and 
 wickedly did conspire and agree to- 
 gether, contrary to the provisions of the 
 Debtor's Act, 1869, and within four 
 months next before the presentation of a 
 bankruptcy petition against defendant, 
 fraudulently to remove part of the prop- 
 
 Leading Cases. — 71. Waters. 
 
 erty of defendant to the value of £10, 
 that is to say (enumerating divers ar- 
 ticles), defendant then being a trader 
 and liable to become a bankrupt." 
 
 To this there was a plea of not guilty, 
 and a verdict of guilty and judgment. 
 Error was brought on the ground that 
 there was no allegation that defendant 
 was ever adjudged bankrupt. 
 
 Held, the fact of defendant having been ad- 
 judged a bankrupt was not necessary to 
 complete the offense of conspiracy. It 
 was complete if the person charged had 
 agreed to remove the goods in contem- 
 plation of an adjudication being obtained, 
 and that this, though not expressly al- 
 leged, must be taken, after verdict, to 
 have been proved before the jury, and 
 that the defect was therefore cured by 
 verdict. Heymann v. R. (1873), 8 Q. B. 
 102-106, 12 Cox C. C. 383, 8 Rul. Cas. 
 126-137. See Dovaston. R. ,. Gold- 
 smith : 20 ; cases. Dobson. 
 
 Waiver cannot supply absence of allegations. 
 Bro. Max. 136, 137; Rushton; Pom. Rem. 
 549, 596, 597 : cases ; Borkenhagen : 81 ; 
 
 1 Chit. PI. 703-707 ; Consensus, etc. ; 
 Van Leuven v. Lyke (waiver) ; Dobson : 
 232. 
 
 Substance or its absence may be objected to 
 at any time. Hitchcock : 12 ; Loflgh : 
 293. Consensus, etc., Frustra probatur. 
 The rationale of waiver, as here ap- 
 plied, is similarly applied in Lough. "He 
 who does not speak when he ought, shall 
 not be heard when he desires to speak." 
 Bro. Max. 138. All that can be found 
 waived will be when one has failed to 
 speak. Lough. 
 
 Every material fact must be averred. Wav- 
 erton ; Cruikshank ; Moore. 
 
 There is no distinction between civil and 
 criminal pleadings as to defective allega- 
 tions which are aided by verdict, at com- 
 mon law. 1 Gr. Ev. 65. Procedure, 
 pleadings are no more technical in crim- 
 inal than in Civil Cases. Bristow : 135 ; 
 Dovaston : 217. 
 
 72. R. v. VAUX (Vaux's Case) (1590), 4 
 Coke, 44, 3 Inst. 314, 1 Lead. C. C. (B. 
 & H.) 513-516. n. : cited, Bish. C. L., id. 
 3 Gr. Ev. 35-37, 36 L. R. A. 181. 
 
 Cited, §§ 19, 62, 120, 130, 133, 141, 145, 
 Hughes' Proc. ; §§ 152, 294, Gr. & Rud. 
 
 A sufficient indictment is essential for 
 former jeopardy. Vaux ; Vandercomb ; 
 Perez ; 2 Van Fleet, For. Adj., § 542. 
 
 A record must be pleaded and be sufficient. 
 Id. And this rationale is the same in all 
 cases, either civil or criminal. 1 Gr. Ev. 
 63, 2 id. 7, 3 id. 10, 2 Bish. Crim. Proc. 
 814, 815; Wright v. Griffey; Lea; S. v. 
 Beach: 28, 30, 258, citing Vaux. 
 
 Statutes cannot abolish essential certainty. 
 Sub, Waters ; Huntsman ; Moore. 
 
 There can be no trial without an issue. 
 Munday : 79 ; cases, 79-83 ; Kingston's 
 Case ; Consensus, etc. ; 1 Gr. Ev. 63, 65, 
 
 2 id. 7, 3 id. 10. 
 
 Former jeopardy. Perez ; Nemo debet bis 
 vexari. Vaux; 1 Bish. C. L. 978-1070o; 
 
DATUM POSTS. 
 
 47 
 
 Leading Cases. — 72. R. v. Vaux. 
 
 3 Gr. Ev. 35-37. See Hummer; Camp- 
 bell v. S. (1836), 9 Yerger, 333, 1 Lead. 
 Crim. Cas. (B. & H.) 592-599, n., 30 
 Am. Dec. 413 : cited, Bish. C. L, ; Audi 
 alteram partem; Due Process op Law ; 
 R. v. O'Brien ; R. v. Miles ; art. 5, Amend- 
 ment Const. U. S. 
 
 The prosecution can have no further pro- 
 ceedings after a verdict of acquittal. P. 
 v. Corning ; C. v. Cummings ; Perez ; S. 
 v. Croteau : 271. 
 
 Writs of error will not lie in behalf of the 
 prosecution. P. v. Corning ; C. V. Cum- 
 mings ; S. v. Salomons (1834), 6 Yerger, 
 360, 27 Am. Dec. 469-480. 
 
 73. R. V. VANDERCOMB (1796), 2 
 Leach 708, 2 East. P. C. 247, 514, 517, 
 
 1 Lead. Crim. Cas. (B. & H.) 519-542, 
 ext. n. ; Cited, 1 Bish. C. L. 793, 796, 
 1053, 1062, Bro. Max., 347, Wells, Res. 
 Adj., § 414, 1 Wh. Bv. 782 ; 3 Gr. Ev. 36, 
 
 2 Van Fleet, For. Adj. § 682. Cited, 
 §§ 120, 130, 133, 141, 142, 145, Hughes' 
 Proc. 
 
 Allegata et probata must correspond. Bris- 
 tow ; Cornfoot. A crime must he charged. 
 Moore. And the record must present it. 
 Sub, Moore. This cannot be waived. 
 Consensus tollit errorem; De non apparen- 
 tibus, etc. Frustra probatur, etc., Verba 
 fortius, etc. Only errors to be preserved 
 and shown in a bill of exceptions can be 
 waived. Consensus. 2 Tan Fleet, For. 
 Adj. 632. 
 
 Due process of law; former jeopardy. Regu- 
 lar allegations and a coram judice are 
 essential. Vaux ; Perez. See Due Proc- 
 ess of Law. 
 
 The indictment must present a crime. Note, 
 R. v. Vandercomb, 1 Lead. Crim. Cas. 
 530, 2d ed., 3 Gr. Ev. 10 ; Lea : 30 ; 
 Wheatley ; Munday. Different counts ; 
 conviction upon a lesser acquits of greater. 
 Note, 1 Lead. Crim. Cas. (B. & H.). 
 
 74. C. v. BOB7 (1832), 12 Pick. (Mass.) 
 496 : stated, 2 Van Fleet, For. Adj. 608, 
 623: cited, 1 Bish. C. L. 787, 788, 804- 
 809, 812, 916, 1003, 1059 ; 3 Gr. Ev. 
 33, 36; P. v. McDaniels (1902), 137 Cal. 
 192, 69 Pac. 1006, 92 Am. St. 81-159, 
 ext. n., 59 L. R. A. 578 ; S. v. Caddy 
 (1901), 15 S. Dak. 167, 87 N. W. 927, 
 91 Am. St. 666, n. (offenses must be the 
 same). Burton; Guedel. 
 
 Cited, §§ 120, 136, Hughes' Proc. 
 
 Cited, §§ 91, 118, 119, Gr. & Rud. 
 
 Roby stated: Former jeopardy. A convic- 
 tion upon an indictment for an assault 
 with intent to murder cannot be pleaded 
 in bar to an indictment for murder, if the 
 offenses are distinct in their legal char- 
 acter, and in no case can a party on trial 
 be convicted of the other. R. V. Miles ; 
 R. v. O'Brien ; R. v. Wheatley ; R. v. Mor- 
 ris (1867), L. R. 1 Cr. Cas. 90, 10 Cox, 
 C. C. 480 ; Winn, 82 Wis. 57. 
 
 Important observations. From such cases 
 as Waters, Perez, Vaux, Vandercomb, 
 Boby, Cromwell and those mentioned un- 
 der Debile fundamentum fallit opus, De 
 non apparentibus, etc., Dovaston and 
 ■J' Anson may be discovered dominant ini- 
 tials above the fog and cloud of great and 
 
 Leading Cases. — 74. C. v. Roby. 
 
 extended discussions. This bewilderment 
 must prove the graveyard of all who are 
 unable to grasp the rationale which stands 
 for so much, and safeguards and lights 
 the way. 
 
 A lasting and useful structure must be 
 drawn from and be founded upon sound 
 initials. As it is with the Parthenon so 
 it is with Jurisprudence. It must in- 
 clude, and be in right harmony and 
 symmetry with the conserving principles 
 (§§ 83-123, Gr. & Rud.) of protection. 
 These must be understood by the prac- 
 titioner before he can properly advise a 
 court. Multitude imperitorum perdit 
 curiam: A multitude of ignorant practi- 
 tioners destroys a court. Legal educa- 
 tion and its usefulness depends upon its 
 comprehension with those policies, and 
 respect therefor. They must ever be 
 kept in view. From them will appear the 
 importance of Wheatley, Rushton, Moore, 
 Cruikshank, Cooke v. Oxley, Waters, Do- 
 vaston, Cornfoot, Bristow, J'Anson and 
 Horan ; 85. From these will appear at 
 least one reason why there must be plead- 
 ings ; and another will appear from Camp- 
 bell v. Porter ; and yet another from 
 notes to Lampleigh and Windsor, and 
 still another from Cromwell. And still 
 there are others (J'Anson v. Stuart). 
 See Identification. All pleadings must 
 be certain to charge either a civil or a 
 criminal wrong. Burton v. U. S., 1 Gr. 
 Ev. 65 ; §§ 17-22, 27a, Hughes' Conts. 
 See Introduction ; §§ 8-12, Hughes' 
 Proc. ; §§ 83-123, Gr. & Rud. 
 
 Imbedded in the above facts is dis- 
 coverable the unity, the entirety and the 
 philosophy of the law, and from a grasp 
 of these facts, let us add, its simplicity. 
 A comprehension of these facts will en- 
 able the reader to estimate the mischiefs 
 poured out upon any jurisdiction by 
 courts misunderstanding that rationale, 
 upon which depends a certain and definite 
 theory of administering the law — of set- 
 tling and protecting all rights — and the 
 highest obligations of the supreme power 
 of the state. Lange : 159. 
 From such a view may appear why plead- 
 ings and the mandatory record are con- 
 stitutional implications. For upon these 
 the greatest constitutional rights depend, 
 and these rights depend upon their inci- 
 dents. Expressio eorum, etc. M'CulIoch : 
 147. Due Process of Law. 
 
 Thus may be seen the keystone of the 
 arch, and also its everlasting foundations 
 — • Construction — Procedure. Concordare 
 leges, etc. §§ 83-123. 
 
 Prosecution for a misdemeanor, subse- 
 quently developing into a felony, as where 
 one wounded dies from a felonious as- 
 sault, then the latter may also be prose- 
 cuted. C. v. Roby; S. v. Littlefleld (1880), 
 70 Me. 452, 35 Am. Rep. 335-345, ext. 
 n. ; 2 Van Fleet, For. Adj. 608 ; cases ; 
 R. v. Morris. Prosecution for assault and 
 battery excuses from assault with intent 
 
48 
 
 DATUM POSTS. 
 
 Leading Cases.— 74. C. v. Roby. 
 
 to kill. P. v. Pearl (1889), 76 Mich. 
 207, 15 Am. St. 304, n. 
 
 Merger of crimes. White v. Fort; B. v. 
 Westbeer. Bendernagle (splitting causes of 
 action). Upon an indictment for a felony 
 a prisoner cannot be convicted of a mis- 
 demeanor ; misdemeanors do not merge 
 into felonies. Nemo debet bis vexari, etc. ; 
 Omne majus continetj S. v. Littlefleld. 
 
 Autrefois acquit and convict. V. S. v. Perez ; 
 R. v. Vandereomb. Only one felony can 
 be prosecuted out of one transaction. 
 Gunter v. S. (1895), 111 Ala. 23, 56 Am. 
 St. 17, n. ; Bendernagle. 
 
 74a. GUESEL V. P. (1867), 43 111. 226; 
 cited, §§ 56, 91, Gr. & Rud. S. P. C. v. 
 Roby ; R. v. Vandereomb. 
 
 Guedel stated: G. was indicted for slaying 
 Z. by clubbing him to death with a gun. 
 To this G. pleaded autrefois acquit 
 (former jeopardy), and therefore set 
 forth a copy of the first indictment, which 
 "averred the killing to have been done 
 by shooting with a gun." To this plea a 
 replication was filed admitting that it was 
 the same transaction, but that the second 
 indictment charges a different felony. To 
 this replication G. demurred unsuccess- 
 fully and was also found guilty. He 
 filed no statutory record but presented the 
 mandatory record only for review. The 
 question was, did the second indictment 
 present a different felony. Held, it did, 
 and that the plea was no bar. 
 
 The court cited and followed, 1 Gr. Bv. 65, 
 3 id. 10 ; R. v. Kelly, 1 Moody C. C. 113 ; 
 R. v. Hughes, 5 C. & P. 126 ; R. v. Pedly, 
 1 Leach, 242 ; C. v. Roby ; R. v. Vander- 
 eomb. 
 
 The court observed that the law re- 
 quiring certainty of averment "has its 
 origin in that tenderness of the law for 
 human life, which requires that a pris- 
 oner on trial for murder shall be fully 
 informed by the indictment of the precise 
 nature of the charge he is called to 
 meet." The origin of this requirement 
 is different in equity. Sto. PI. 10, 240- 
 252 ; Lang v. Metzger, 206 111. 475, 478 ; 
 Wabash: 137 (111.); 1 Gr. Bv. 65; U. 
 S. v. Cruikshank : 232. 
 
 The true origin of the rule is discoverable 
 from the conserving principles of pro- 
 cedure. Frustra probatur quod probatum 
 non relevat. It involves not only the ac- 
 cused, but the trial court, the Supreme 
 Court, and the whole public as well. 
 
 Allegata et probata must correspond. Bris- 
 tow v. Wright: 135. 
 
 Variances are fatal. Humpeler v. P., 92 
 111. 400 ; Bromley v. P., 150 111. 297 ; 
 Limouze v. P., 58 111. Ap. 314 (a false 
 pretence relating to parcels or lots of 
 land is not sustained by proof as to one 
 lot only). 
 
 Different offences may arise from the same 
 act. C. v. Roby: 69. 
 
 The conserving principles of procedure are 
 ably vindicated by many cases. Wabash 
 R. R. v. Friedman ; Bates. These over- 
 ride the tenderness of the law for accused 
 persons. Austin R. R. ; Planing Mill Co. ; 
 In prwsentia majoris cessat potentia mi- 
 noris. 
 
 The mandatory requirements of a constitu- 
 tionalism cannot be waived is a ground 
 
 Leading Cases. — 74a. Guedel. 
 
 and rudiment of law. § 56, Gr. & Rud. 
 Campbell v. G. 
 
 A cause may be reviewed upon the 
 mandatory record alone. Windsor ; 2 
 Cyc. 715 ; Roden. 
 
 The ground of the general demurrer 
 is never waived. Slacum; McAllister; 
 Benton. 
 
 A plea of res adjudicata must be 
 pleaded' even in a criminal case, and as 
 in Guedel. Bish. Crim. Proc. 814, 815; 
 
 3 Gr. Ev. 36. See Res Adjudicata. 
 
 A fortiori it ought to be pleaded in a 
 civil case and as a like abatement mat- 
 ter. Cf. Chicago v. Babcock, 143 111. 358. 
 
 It is -sufficient if the substance of the 
 issue be proved. 1 Gr. Ev. 59. 
 
 75. B. v. O'BRIEN (1882), 15 Cox, C. C. 
 29, 46 L. T. 177. 
 
 O'Brien stated: Autrefois acquit; former 
 jeopardy. Nemo debet bis vexari, etc. It 
 is a rule of law that a man shall not be 
 twice vexed for one and the same cause. 
 On an indictment for receiving stolen 
 property at common law, defendants were 
 acquitted on the ground that the property 
 was a fixture. Afterwards they were in- 
 dicted under a statute for stealing a fix- 
 ture. Held, the acquittal for receiving 
 stolen property was no bar to the second 
 prosecution. 
 
 It is a clear principle of English law 
 that a person cannot be indicted for a 
 crime of which he has already been ac- 
 quitted. Vaux ; Perez, Gr. & Rud. 
 
 "One charged with the murder of a girl, 
 whose miscarriage he had sought to pro- 
 cure, and' who, after the operation, died, 
 and who is found not guilty upon the in- 
 dictment for murder, may still be tried 
 and convicted of an attempt to procure 
 abortion." 
 
 Assault with intent to commit murder. Pros- 
 ecution for this is no defense to prosecu- 
 tion for murder, where the assaulted per- 
 son subsequently dies from the wounds 
 inflicted at the time of the assault, C. v. 
 Roby, citing S. v. Littlefleld; Johnson v. 
 S. (1885), 19 Tex. Ct, App. 453, 53 Am. 
 Rep. 385 ; note, 58 Am. Dec. 541-546. 
 Omne majus continet in se minus (the 
 greater contains the less). Bro. Max. 174. 
 Other cases on this subject are : R. v. 
 Sheen (1827), 2 C. & P. 634 (12 E. C. L. 
 R.) ; R. v. Vandereomb; Guedel. 
 
 76. KINGSTON'S CASE (generally cited 
 as Duchess of Kingston's Case) (1776), 
 20 How. St. Tri. 355-652, 1 Leach, C. C. 
 146, 2 Sm. L. C. 734-986, ext. n., 8th ed., 
 731-865, 11th ed. (with Doe v. Oliver, 
 reviewing English cases) ; Rood, Gam. 
 109 (effect of judgments) (stating King- 
 ston's Case) ; Bui. N. P. 224, 1 East, 
 P. C. 468, 1 Van Fleet, For. Adj., pp. 
 1-77, 6 Mews' B. C. L., 398, 415: cited, 
 Bro. Max., Hibshman v. Dulleban (1835), 
 
 4 Watts, 182 ; The Duchess, etc. ; Brown, 
 Jurisdic, 1 Freem. Judg. 284 (most wide- 
 ly cited case in the world). 
 
 Cited, §§ 4, 16, 29, 120, 122, 128; stated, 
 129. 130, 131a, 182, 184, 334, Hughes' 
 Proc; §§ 14, 20, 52, 91, 171-174, 179, 
 200, 223, 258, Gr. & Rud. 
 
 Conflict and development of Its rules. 
 See works on Res adjudicata, Estoppel, 
 and kindred subjects. 
 
DATUM POSTS. 
 
 49 
 
 Leading Cases. — 76. Kingston's. 
 
 Res adjudicate/, rules are stated in notes, 2 
 Sm. L. C. ; 1 Herm. Estop. 20. See Crom- 
 well ; Mondel ; Bailey, 1 Gr. Ev. 63, 528 ; 
 2 id. 7 ; 3 id. 10 ; Bro. Max. 327 : Inter- 
 est reipublicm, etc. ; Salus populi suprema 
 lex. C. v. Roby : 74. 
 
 Fraud vitiates an adjudication. Bro. Max. 
 329, n., 342; S. v. Baughman ; Ex dolo ; 
 Graver ; Watkins. 
 
 Kingston's Case Is the most widely cited in 
 both England and America. Like Chan- 
 delor some of its features have been great- 
 ly modified, for now the rule is, a plea of 
 res adjudicata must be pleaded, else it is 
 waived. Wright : 28 : cases. The influ- 
 
 ' ence of Salus populi suprema lex, as ex- 
 pressed in Interest reipublicw ut sit finis 
 litium, caused the court in Kingston's Case 
 to state a singular and erratic rule, which 
 is that the record of a former adjudica- 
 tion is admissible in evidence without 
 pleading it, and in such case the court 
 or jury could view it as they chose. See 
 Res adjudicata. 
 
 77. MONDEL V. STEEL (1841), 8 M. & 
 W. 858, Sedgk. Lead. Cas. Dam. 363, 9 
 
 D. C. P. 812, 5 Jur. 511 : stated, 2 Sm. L. 
 C. 934, 936, 937 : cases, 8th ed., 6 Mews' 
 
 E. C. L. 993 ; 12 id. 694 ; 15 id. 1828, 
 Bliss, PI. 370, n., Bro. Max. 339, Brown, 
 Jurisdic. ; Wat. Set-off, 531 ; 204 U. S. 
 286 (a cross demand is not a defense.) 
 
 Cited, p. 15; §§ 129, 130, 143, 145, 186, 
 216, Hughes' Proc. ; § 104, Gr. & Rud. 
 
 Record proper is irrefragable as to what was 
 in issue. See Res adjudicata. What the 
 record makes certain cannot be contra- 
 dicted. Brittain : 50. But the record may 
 be explained. Gardner ; McLaughlin. 
 
 The record cannot be contradicted, but 
 consistently with it, and within it, the 
 persons and subject-matter may be identl 
 fled. Gardner ; Sanford v. Edwards 
 Draper v. Medlock. See Kempe's : 117 
 Iverslie ; 46 : cases ; Russell v. Place. 
 Record is equitably construed. Barrs. 
 
 Default; what it admits. Bissell ; McAllis- 
 ter; Jordahl, 72 Minn. 119, 45 L. R. A. 
 541, XX., 71 Am. St 469, stating Mondel 
 (recovery does not bar recoupments and 
 set-offs) ; Wat. Set-off, 573 ; Bendernagle. 
 Real party in interest may be shown. 
 Bauerman : 48. 
 
 78. TBEVIVAIT (or TREBIBAN) V. 
 LAWRENCE (1705), 1 Salk. 276, 1 Sid. 
 54, 6 Mod. 258, 2 Raym. 1036, 1048, 2 
 Smith L. C. 743 (430-479), ext. n. in con- 
 nection with Hughes v. Cornelius and 
 Kingston's Case, 8th ed., 742-865, 11th ed. 
 (with Doe v. Oliver and Kingston's Case 
 reviewing English cases), Ewart, Estop. 
 207 ; 2 Herm. Estop. 610, 703, 704, Bigl. 
 Estop. 7 Rob. Prac, Bro. Max. 336, 2 
 Chit. Conts., 1166, 1 Gr. Ev. 22, 23, 204, 
 531, Brown, Jurisdic. 
 
 Cited, §§ 131, 135. 138, Hughes' Proc. 
 Estoppel of record; principles of. The last 
 
 estoppel prevails, and binds parties and 
 
 privies. 
 
 Estoppels pass estates in land. Ewart, 
 
 Estop. 206; Lindsay v. Cooper (Ala.). 
 
 79. MUNDAY v. VAIL (1871), 34 N. J. 
 Law. 418 ; quoted, 140 U. S. 254, 17 Colo. 
 App. 314. Cited, Hughes' Proc. 
 
 Leading Oases.— 79. Munday. 
 
 Cited, §§ 48, 63, 100, 124-126, 152, 158. 
 165, 169, 201, 201a, 225, 236, 237, 239, 
 245, 248, 272, 278, Gr. & Rud. 
 Munday stated: Asa Munday, while owning 
 land, borrowed money of Ephriam Mun- 
 day. Afterwards Asa and his wife con- 
 veyed the land to Conger in trust for their 
 children. Ephriam then sued and sought 
 to charge the land with his debt, for it 
 was agreed that he should have a mort- 
 gage on it, and claimed the conveyance 
 was fraudulent. The plaintiff in this suit 
 was a daughter of Asa and Hetty, and was 
 a defendant in the suit to set aside the 
 deed. She was then an infant and, al- 
 though served with process (Galpih : 63) 
 she did not answer with the other defend- 
 ants. Upon the bjll and answer of all the 
 other defendants the court entered a de- 
 cree setting aside the deed to Conger as 
 fraudulent and void, and the same was 
 ordered cancelled. It seems that after- 
 ward Asa paid or satisfied Ephriam. 
 Later, under another judgment against 
 Asa, the land was sold and a sheriff's 
 deed issued to the execution purchaser, 
 against whom the plaintiff, the said 
 daughter of Asa and Hetty, sues in eject- 
 ment, the grantee, in said sheriff's deed. 
 This grantee defended upon the ground 
 that the deed to Conger was set aside, 
 as already stated, and that he bought un- 
 der a regular judgment and execution, 
 and thereupon received his sheriff's deed. 
 But his defense failed, for the reason that 
 the infant daughter did not file an answer 
 in the suit of Ephriam to set aside the 
 Conger deed. For the want of such an 
 answer the court had no jurisdiction to 
 set aside the Conger deed, and therefore 
 the levy upon the land under the judg- 
 ment was null and void. These proceed- 
 ings were coram non judice. 
 "Jurisdiction may be defined to be the right 
 to adjudicate concerning the subject-mat- 
 ter in the given case. To constitute this 
 there are three essentials : First, the 
 court must have no cognizance of the 
 class of cases to which the suit to be ad- 
 judged belongs. Second, the proper par- 
 ties must be present. And, Third, the 
 point decided must be, in substance and 
 effect, within the issue." 34 N. J. Law, 
 422. See jurisdiction. 
 
 From the foregoing it may be deduced 
 that pleadings are essential to confer jur- 
 isdiction ; and also, that they enter into 
 titles to property. See Jurisdiction. 
 
 Munday, Windsor and Williamson are- 
 cases that will illustrate the interactions 
 upon titles to property and to contracts. 
 They involve Caveat emptor, constructive 
 notice and collateral attack. They also 
 illustrate the fact that the law is a mesh 
 of technicalities, that cannot be dispensed 
 with. 
 Pleadings are the exclusive juridical means 
 of investing a court with jurisdiction of a 
 subject-matter to adjudicate it. Pleadings 
 are a limitation of a court's powers and 
 they are strictly construed. Verba fortius, 
 etc. The conserving principles of pro~ 
 
50 
 
 DATUM POSTS. 
 
 Leading Cases.— 79. Munday. 
 
 cedure demand them. §§ 83-123, Gr. & 
 Rud. ; Windsor ; Campbell v. Porter : 
 Cases ; C. v. Roby : Cases ; Dovaston ; 
 217. See Identification ; Codes, 105 Mo. 
 Ap. 694. 
 
 Allegations and prayer of a bill limit the 
 recovery. Heath v. Hurless (1874), 73 
 111. 323; Sto. PI. § 10. See Story. Ad 
 damnum. 
 
 A court derives its power to exercise au- 
 thority from its record; 'when this record 
 does not clothe the court with power to 
 proceed, then its acts are ultra vires — 
 usurpation — abuse of power — and this will 
 vitiate all into which it enters. Debile 
 fundamentum fallit opus; De non appa- 
 rentibus, etc. 
 
 A verdict taken upon a matter which is not 
 issuable, or upon matter out of the com- 
 pass of the issue is void. Taker v. Salter 
 (1620), Hobart, 1126. 
 
 The mandatory record limits judgments and 
 decrees. Jurisdiction depends upon the 
 pleadings. See Jurisdiction. Munday v. 
 Vail ; Windsor v. McVeigh ; Bloom v. Bur- 
 dick. 
 
 Statutes providing for the answer and pro- 
 ceedings to raise issue of law and of fact 
 are also mandatory. Indianapolis R. R. 
 Quod ab initio, etc. 
 
 Statutes reaffirming the common law by pro- 
 viding for the statement of the claim is 
 mandatory. Codes of the states are man- 
 datory upon federal courts as to that. In- 
 dianapolis : 223. 
 
 When the record is silent as to a plea it 
 will be presumed that one was interposed, 
 even in a justice's court. Johns v. S. 
 (1885), 104 Ind. 557. Omnia prmsumun- 
 tur rite, etc. See Hubler. 
 
 Hubler v. Pullen (1857), 9 Ind. 273, 68 Am. 
 Dec. 620" (payment pleaded but not re- 
 plied to is not in issue. Trial without 
 issue is error). Contra cases are found 
 in Indiana. See rule in Illinois. Israel ; 
 Corbus v. Teed (1873), 69 111. 205: cases 
 (waiver of replication) ; Strohm v. Hayes 
 (1873), 70 111. 41- (replication) ; Jackson 
 v. Sackett (1893), 146 III. 646, 653, 654, 
 35 N. E. 234 (answer) ; Hend. Eq. PL 
 521, 522 : cases. These last cases oppose 
 the rationale of Israel (replications cannot 
 be waived) ; Van Zile Eg.. PL 242- (repli- 
 cations may be waived: cases). Hitch- 
 cock; Avon Mfg. Co. v. Andrews (1862), 
 30 Conn. 476, 485-488. 
 
 An issue must arise from the record, from 
 the pleadings filed. Avon ; Simonton, 5 
 Pet. 141 ; Bassett v. Johnson ; Foley v. 
 Foley (1898), 120 Cal. 33, 65 Am. St. 
 147, n. See Kelsey v. Lamb (1859), 21 
 111. 559 (plea may be waived) : cited, 50 
 111. 91, 79 111. 535. See Israel (a trial 
 without an issue is a nullity) ; Borken- 
 hagen ; J'Anson : cited, Brown, Jurisdic. 
 (a very instructive case). 
 
 A trial upon an answer without a plea is 
 ultra vires — void. Israel; Hubler; Crain 
 (instructive case). See Denial. L. C. 
 34-44. 
 
 Leading Cases. — 79. Munday. 
 
 Issues must appear from the mandatory rec- 
 ord. Hoskins; Parkinson v. P. (1890), 
 135 111. 401, 10 L. R. A. 91, n. ; 3 Gr. Ev. 
 12; Yundt v. P. (1872), 65 111. 372 (plea 
 in common-law record essential) ; Ayles- 
 worth (a plea essential in the record 
 proper. The best evidence of an issue and 
 of a hearing must be presented. The 
 common-law record is the sole and exclu- 
 sive evidence of the issue, what it was 
 and of the hearing afforded. That record 
 safeguards great constitutional rights, a.s 
 we elsewhere note) ; Crain v. U. S. ; Davis 
 v. S. ; Eiseman v. S. (trial without an 
 issue shown by and upon the record is un- 
 authorized). S. v. Thurstin ; C. v. Roby. 
 
 A record is indispensable. U. S. v. Perez ; 
 Sperry v. C. ; R. v. Wheatley : 49 ; Moore 
 v. C. : 21 ; Windsor : 1. A record safe- 
 guards great constitutional guarantees, 
 and therefore it is a constitutional impli- 
 cation. The rationale of the record and 
 of the issue is exactly the same in civil 
 cases. Munday ; Crain ; S. v. Thurstin ; 
 C. v. Roby. 
 
 A judgment outside the allegations and 
 issues is void. Munday ; Garland ; Bor- 
 kenhagen ; Adams v. Gill ; Gille v. Em- 
 mons (1897), 58 Kan. 118, 62 Am. St. 
 609, n. : cases, 1 Freem. Judg. 120, 120c; 
 Bloom ; Jansen ; Reynolds ; Windsor ; R. 
 v. Wheatley; Black, Judg. 180 U. S. 28, 
 471, 533; Saunderson (Wis.). 
 
 Parties (Sto. PI. 259) and record matter 
 essential for a court to act upon. . Rush- 
 ton ; notes to Lampleigh ; Cooke v. Oxley ; 
 Iverslie : cases ; Murray : 219. See Alle- 
 gations. 
 
 Consent decrees beyond the issues, how far 
 binding. Bigley v. Watson (1896), 98 
 Tenn. 353, 36 L. R. A. 679 : cases ; Nash- 
 ville R. R. v. U. S. (1885), 113 U. S. 261; 
 Pac. R. R. v. Ketchum (1880), 101 V. S. 
 289. 
 
 Issues and record matter is waived in sev- 
 eral states. Among these are New York, 
 Indiana, Illinois, Colorado and Missouri. 
 Devry v. R. R_, 192 Mo. 201 : cases ; 
 (issues) Hill v. Drug Co. (1897), 140 Mo. 
 433; Hall v. Goodnight (1896), 138 Mo. 
 577. See Theory of the Case. Roden. 
 
 Reply to counterclaim may be waived. 
 123 Wis. 1, 107 Am. St. 924; 105 Mo. 
 279, 421 (reply waived). 
 
 Collateral attack is the means to resist 
 usurpation and abuse of power. Borden ; 
 Campbell v. Porter : 2. See Mandatory 
 Record. 
 
 Pleadings essential to confer jurisdiction — 
 authority — power upon a court to proceed. 
 Deitsch; Thomas (Colo.): 15; Saunder- 
 son, 180 U. S. 28, 471, 105 Mo. Ap. 694, 
 533. This is denied by those courts hold- 
 ing that pleadings — the record—can be 
 waived. See Dovaston. Verba fortius, etc. 
 
 Sperry v. C. (1838), 9 Leigh (Va.), 623, 1 
 Lead. Crim. Cas. 433-482 (B. & H.), ext. 
 n., 33 Am. Dec. 261, 262 : cited, Whart 
 Crim. PI. & Pr. 511, 540, §19. 
 
 Felonies; defendant's presence in person at 
 
DATUM POSTS. 
 
 51 
 
 Leading Cases. — 79. Munday. 
 
 the trial and at each step is indispensable, 
 and the record must show this. Sperry ; 
 Audi alteram partem: Gore v. S. (1889), 
 52 Ark. 285, 5 L. R. A. 832, n. ; S. v. 
 Smith '(1890), 44 Kan. 75, 8 L. R. A. 774, 
 n., 21 Am. St. 266; Lewis v. V. S. (1892), 
 146 U. S. 370, 36 L. ed. 1011, n. ; S. 
 v. Atkinson (1893), 40 S. C. 363, 42 Am. 
 St. 877, n. ; Cool. Const. Lim. 388 ; French 
 v. S. (1893), 85 Wis. 400, 39 Am. St. 
 855, n., 21 L. R. A. 402 ; Richards v. S. 
 (1892), 91 Tenn. 723, 30 Am. St. 907, n. ; 
 S. v. Kelly (1887), 97 N. C. 404, 2 Am. 
 St. 299, 11 Crim. Law Mag. 173-178; 1 
 Bish. Crim. Proc. 267-277, 1353, Whart. 
 Cr. PI. & Pr. 540-551; Clark, Cr. Proc. 
 148. 
 
 Presence required when sentenced, Sperry 
 v. C.J 1 Bish. Crim. Proc; and record 
 must show this. Ball v. U. S. (1891), 
 140 U. S. 118; White v. U. S. (1896), 
 164 U. S. 100. Issue, etc., must appear 
 of record. Crain v. V. S. ; White v. U. 
 S. It is well to observe that the ac- 
 cused person, a prisoner, is strictly pro- 
 tected by the record. And so is the in- 
 fant.. The record is a technical safe- 
 guard. To perceive and fully understand 
 this is of prime importance to the prac- 
 titioner. Preceding arid following cases 
 are designed to impress and to illus- 
 trate that fact. There are many phases 
 of the principal question. 
 
 79a. REYNOLDS V. STOCKTON (1891), 
 140 U. S. 254 (35 L. ed. 464), 43 N. J. 
 Eq. 343. Quotes and approves Munday. 
 See also Windsor ; Reynolds : stated in 
 Gille v. Emmons, sub, Munday ; 176 U. S. 
 356 ; Brown, Jurisdic. 
 
 Judgments beyond the issue void. Munday. 
 Cited in Hume v. Robinson, to the point 
 that pleadings can be waived. See con- 
 tra, Jansen v. Hyde; 180 U. S. 28, 471, 
 533 ; Hanford ; Campbell v. Porter ; Do- 
 vaston, 
 
 Reynolds v. Stockton must be carefully 
 read with the fact kept in mind, that 
 Munday is quoted and approved. Beyond 
 this is obiter that can be cited to sustain 
 waiver of pleadings in some cases. The 
 mandatory record is required by strict 
 construction. Crain v. U. S. (instructive 
 
 80. HOSKINS v. P. (1876), 84 111. S7, 
 25 Am. R. 433, 2 Am. Cr. R. 484, 11 
 Am. Cr. R. 650, n. A plea of not guilty 
 is essential for a trial, and it must ap- 
 pear of record. Crain ; Davis v. S. Sub, 
 Munday. See Denials. 
 
 Cited, § 9. Hughes' Proc. ; § 286, Gr. & Rud. 
 
 81. BORKENHAGEN V. PASCHEN 
 (1888), 72 Wis. 272, 39 N. W. 774: 
 Brown, Jurisdic. : cited, 118 Wis. 613. 
 S. P. Davis v. S. 
 
 Cited, §§ 5a, 6, 78, 104, Hughes' Proc. 
 
 Cited, §§ 11, 118, 119, 272, 278, Gr. & Rud. 
 
 Borkenhagen; stated; estoppel must be 
 pleaded; evidence cannot supply a neces- 
 sary pleading. Borkenhagen had a 
 saloon, and the license was in his name. 
 He appeared to own the property and to 
 run the saloon. His wife lived with 
 him. His creditor, Jungbluth, got judg- 
 
 Leading Gases. — 81. Borkenhagen 
 
 ment against him and levied upon whiskey 
 and flour in the saloon. At this stage 
 Mrs. B. replevined from the sheriff, 
 Paschen, who seized under the execution. 
 Mrs. B. recovered before a justice, and 
 lost on appeal in the circuit court, but 
 won in the supreme court, notwithstand- 
 ing there was ample proof that she was 
 estopped, as in Mitchell v. Reed (1858), 
 9 Cal. 204, 70 Am. Dee. 647 ; Horn v. 
 Cole ; for it appeared she had repre- 
 sented to the levying creditor that her 
 husband owned the property. These rep- 
 resentations equitably estopped her. 
 Horn. But this was the defect : there 
 was no plea of estoppel — this was not in 
 issue, therefore the evidence was un- 
 availing — it was surplusage. Shutte. Ad- 
 mitting evidence by consent did not sup- 
 ply the essential allegata. Munday ; Wis- 
 consin Co. ; Crain ; Saunderson. 
 
 All estoppels must be pleaded. Wright : 
 28. The facts must be pleaded like an au- 
 thority. Hopper ; or a justification. 
 J'Anson ; or as fraud is pleaded. 
 
 Allegata essential for the reception of evi- 
 dence. A court is bound by its record. 
 Munday ; Gentry ; 82 Am. St. 196 ; Gos- 
 som; 6 Bush (Ky.), 97, 99 Am. Dec. 
 658; Shutte: 291; Wisconsin Co. Frustra 
 probatur quod probatum non relevat. Ad- 
 missions upon the record are conclusive. 
 Bradbury : 35. Departures are not al- 
 lowed. Johnson, 124 Ala. 508, 82 Am. 
 St. 196 ; Bristow ; Huntsman : 135, 231. 
 
 Material allegations can not be omitted; 
 they can not be waived. L. C. 1-23 ; 
 69-79 ; cases. Green v. Palmer : 90 
 (code). 
 
 The evidence must correspond with the al- 
 legations and be confined to the point in 
 issue, 1 Gr. Ev. 51 ; 99 Am. Dec. 658, 662, 
 82 Am. St. 196 ; Huntsman : 231. 
 
 Issues must appear from the mandatory 
 record. McLaughlin : 31 ; Munday : 79 ; 
 Wright : 28 ; Cf. And. Steph. PI. ; 230, 2d 
 ed. ; 2 Thomp. Tri. 2310, 2311, citing 
 Wisconsin cases. 
 
 Code prescription for the statement of a 
 "cause of action," and for proceedings to 
 frame an issue are mandatory. Indian- 
 apolis: 223. 
 
 Defenses not pleaded are waived. Borken- 
 hagen ; Cromwell : 27 ; J'Anson : 91 ; Mc- 
 Kyring : 33 ; Gila, 205 U. S. 279. But 
 not in all states. Hume : cases. 
 
 82. SKEATE V. BEALE (1840), 11 Ad. 
 & Ell. 983 (39 E. C. L. R.), 3 P. & D. 
 587, Ewell, L. C. Inf., 775, n. 
 
 Cited, §§ 79, 157, Hughes' Proc. 
 
 A plea or answer must be sufficient, just 
 like any other pleading. Ubi eadem ratio, 
 etc. ; J'Anson : 91 ; Field v. Mayor : 84 ; 
 Garland : 60 ; Oystead v. Shed, sub, Do-, 
 vaston ; Crane, 10 Colo. 265, sub, P. v. 
 McCumber ; Wood, 24 Colo. 134 ; Israel 
 (111.) : cases. See Campbell v. Porter. 
 Garland v. Davis ; De non apparentibus, 
 etc. ; Ambigua responsio, etc. ; Verba 
 fortius. 
 
 An agreement made under duress of 
 
52 
 
 DATUM POSTS. 
 
 Leading Cases. — 82. Skeate. 
 
 goods is not void. Skeate ; 5 Mews' B. 
 C. L. 1053 (duress). See Sasportas. 
 
 83. ISRAEL V. REYNOLDS (1849), 11 
 111. 218. S. P. Borkenhagen. 
 
 Cited, §§ 9, 13, 30, 39, 89, 91, 98, 104, 
 168, 240, Hughes' Proo. 
 
 Consent cannot confer jurisdiction. Sto. PI. 
 10 ; Fabula non judicium. Nor dispense 
 with the mandatory record. Garland. 
 
 A trial upon an answer without a reply 
 is ultra vires. Simmons, 76 111. 479 ; 
 Munday. See Brazzle v. Usher (1820), 
 Breese (III.), 35 (a plea may be waived). 
 A court has no authority to order the 
 trial of an issue not shown upon the 
 record. A court is bound by its record. 
 Israel. Contra: Kelsey v. Lamb (1859), 
 21 111. 559 ; cases. Cited, 50 111. 91 ; 69 
 111. 535 ; Shinn, Plead. & Prac. 448, 454 ; 
 Hend. Eq. PI. 521, 522, citing Illinois 
 cases that answers, pleas and replies may 
 be waived. Jackson, 146 HI. 646, 653, 
 654 (answer waived : Consensus) ; Frank- 
 lin Lode, (pleadings can be waived). 
 
 84. FIELD V. MAYOR OP NEW YORK 
 (1852), 6 N. Y. (2 Seld.) 179, 57 Am. 
 Dec. 435, n., Huff. 8 Wood. Conts. 453 ; 
 30 Me. 368, 6 Am. St. 207, 2 Lead. Eq. 
 Cas. 1629, n. ; Ryall v. Rowles ; Bisph. 
 Eq. 165, 166, 2 Pom. Eq. 706, 3 id. 1275, 
 Gr. Pub. Pol. 352, 2 Beach, Pub. Corp. 
 1108. Watson v. Christie, sub, J'Anson. 
 See Assault and Battery ; False Im- 
 prisonment ; Justification Must be 
 Pleaded. 
 
 Cited, § 303, Hughes' Proc. ; § 278, Gr. & 
 Rud. 
 
 Pleading; waiver. Defenses not pleaded are 
 waived. Cromwell ; 57 Am. Dec. 440, 
 n. ; McKyring: Wells v. Abrahams (1872) 
 L. R. 7 Q. B. 554; 41 L. J. Q. B. 306 
 Munday ; Price v. Seeley sub, Justdjica 
 tion ; J'Anson ; Expressio unius, etc. 
 Van Fleet, For. Adj. 91, 179-206 (omitted 
 defenses) ; 1 Encyc. PI. & Pr. 830-851 
 Wheeler, 24 111. 40 ; Oystead v. Shed 
 (1816), 13 Mass. 520, 7 Am. Dec. 172 
 Consolidated Coal ; State Bank v. Felt 
 (1896) 99 la. 532, 61 Am. St. 253. 
 
 The right to rely on the defense pleaded 
 must be affirmatively shown by the answer. 
 Verba fortius. 1 Encyc. PI. & Pr. 831. 
 A justification must be pleaded, if re- 
 lied upon. Mostyn. Commonly it is 
 said that the object of the rule is to 
 prevent surprises ; but other reasons may 
 be discovered. Be non apparen'tibus, etc. ; 
 J'Anson. See Identification. §§ 84-123, 
 Gr. & Rud. 
 
 If transaction is illegal. See In pari 
 delicto, etc. ; Consensus tollit errorem; 
 Holman v. Johnson : 363. 
 
 Pari delicto transactions need not be 
 pleaded. See In pari delicto. It is suffi- 
 cient if they appear from the evidence, 
 record or proceedings in the case ; courts 
 will ex officio notice them. Hennen v. 
 Gilman (1868), 20 La. Ann. 241, 96 Am. 
 Dec. 396, n. ; Bowman v. Gonegal (1867), 
 19 La. Ann. 328, 92 Am. Dec. 537 ; note, 
 93 Am. Dec. 510 ; 2 Beach, Conts. 1740. 
 Illegality which affects the public can- 
 not be waived. Res inter alios acta, etc. 
 
 Leading Cases. — 84. Field. 
 
 Assignment of demand to become due. 
 Field v. Mayor, etc. ; Warmstrey v. Tan- 
 fleld; 2 Pom. Eq. 706, 3 id. 1275; Met- 
 calf v. Kincaid (1893), 87 Iowa .443, 43 
 Am. St. 391, n. (wages to become due). 
 See Ryall v. Rowles. 
 
 Possibilities; expectancies. Wages and 
 profits to be earned are assignable, if not 
 contrary to public policy. Field v. Mayor, 
 etc. ; cited, 2 Pom. Eq. 706, 3 id. 1275 ; 
 Edwards v. Peterson (1888), 80 Me. 367,. 
 6 Am. St. 207 (but not under an exist- 
 ing contract) ; Rowe v. Dawson ; 1 Beach, 
 Eq. 333 ; Ryall v. Rowles ; Walton v. 
 Horkan (1901), 112 Ga. 814, 38 S. E. 
 105, 81 Am. St. 77, n. 
 
 Assignee of a part may sue for it. 
 Field v. Mayor, etc. ; Grain v. Aldrich ; 2 
 Pom. Eq. 707 Contra, McDaniel v. Max- 
 well (1891), 21 Or. 202, 28 Am. St. 
 740, n. 
 
 Salaries of public officers ; assignment 
 permissible. Field. Contra, 3 Pom. Eq. 
 1276 : cases ; Gr. Pub. Pol. 352, 1 Beach, 
 Eq. 339. In pari. 
 
 85. HORAN V. WiHEENBESGEE 
 (1852), 9 Tex. 313, 58 Am. Dec. 145-149. 
 
 Cited, § 3, Hughes' Conts. ; §§ 6, 52, Hughes' 
 Proc. ; §§ 124, 128, 201, Gr. & Rud. 
 
 One claiming the benefits of an adjudica- 
 tion or sequestration must allege and 
 prove it. Clem : 2b. This duty is not 
 foreclosed by a judgment of the supreme 
 court. No judgment is ever exempt from 
 attack for usurpation — abuse of power. 
 Consent cannot confer jurisdiction of sub- 
 ject-matter. 
 
 Sto. PI. 10; Windsor; Campbell; 
 J'Anson ; Perez ; 2 Cyc. 1032. 
 
 From the Horan Case we may deduce 
 that collateral attack is an original, un- 
 derlying, fundamental remedy and method 
 of defense against usurpation. Original 
 compacts of society stipulated for it, and 
 constitutions, statutes, codes and rules of 
 court contemplate it, and should be so 
 construed, as elsewhere noted. Accord- 
 ingly appears the far-reaching rule of 
 pleading, i. e., that the ground of the 
 general demurrer is never waived, and 
 that it searches the whole record (essen- 
 tial pleadings) and attaches to the first 
 fault. Filing an answer will not waive 
 such defects, is a usual code provision, 
 which leaves the way open for motion in 
 arrest, and for judgment non obstante 
 veredicto, remedy on appeal or review 
 (Campbell v. Porter), or injunction, cer- 
 tiorari, prohibition, habeas corpus, and 
 other extraordinary defenses. 
 
 The ground of the general demurrer 
 may be renewed or raised at successive 
 stages and from first to last, and is never 
 waived, condoned or acquiesced in ; for 
 it is the duty of the court itself to raise 
 it — to protect a party before it from 
 usurpation ; and so it is the duty of the 
 adverse side (Campbell v. Porter), and 
 that duty never shifts to him who is 
 averred a delict. One cannot contract to 
 assume it, else consent would confer 
 
DATUM POSTS. 
 
 53 
 
 Leading Gases. — 85. Horan. 
 
 jurisdiction, which is never permitted. 
 The authority of any court may be in- 
 quired into. 70 L. R. A. 77. 
 
 De non apparentibus et non existentibus 
 eadem est ratio; Debile fundamentum 
 fallit opus; Dovaston, where is cited Wall 
 (as to a coram non judice proceeding) ; 
 Hitchcock. 
 
 Collectively consider with the above, 
 Campbell ; Collateral Attack ; notes to 
 Lampleigh ; Dovaston ; Windsor ; Munday ; 
 Audi; Deputron ; Wheatley ; Moore v. C. 
 See Dictum; Opinion ; Precedents ; 
 Cohens. 
 
 A judgment depends upon its foundations. 
 Clem. Notes to Lampleigh; Debile; Do- 
 vaston ; notes, C. v. Roby. Houston. 
 
 Execution and judicial sales depend 
 upon the mandatory record. Notes to 
 Lampleigh ; Kleber on sales. 
 
 Courts are bound by their records ; for 
 them a record is provided from public 
 policy. This record is to test their acts, 
 and for this purpose the record is made 
 a lasting memorial for future reference. 
 It can not be waived or dispensed with. 
 
 Dicta of courts never bind or obligate. It 
 is the edifice without a foundation, which 
 architecturally must be forever con- 
 demned. Debile. It is not even so much 
 as the deed made without authority, for 
 it may be ratified ; but the judgment and 
 the opinion without authority cannot be 
 ratified. Quod ab initio. Authentic opin- 
 ions have nothing to do with res adju- 
 dicata, much less dicta. In courts that 
 dispense with pleadings and the manda- 
 tory record the foregoing views cannot 
 apply. 
 
 86. EASrOED v. DAVXES (1896), 163 
 U. S. 273 (41 L. ed. 157). Page Conts., 
 742. 
 
 Cited, %% 23. 78. 79, Hughes' Proc. Cited, 
 §§ 53, 60, 113, 116-119, 137, 267, 268, 
 270, Gr. & Rud. 
 
 All state agencies except the legislative may 
 impair the obligation of w contracts. Han- 
 ford ; Mississippi R. R. Co. v. Rock 
 (1867), 4 Wall; Central Co. v. Laidley 
 (1895), 159 U. S. 103; Turner v. Count> 
 (1899), 173 U. S. 461;- Wood v. Brady 
 (1893), 150 U. S. 18. See Ford v. Delta 
 Co. (1897), 164 U. S. 662; Graham v. 
 Folsom. ' 
 
 Want of "due process of law" in pro- 
 ceedings of a probate court is not suffi- 
 ciently alleged to show a federal question 
 by the allegation that the court acted en- 
 tirely without jurisdiction. Hanford. 
 This is a conclusion of law and is in- 
 sufficient. Cruikshank ; J'Anson ; Hopper; 
 De non apparentibus, etc. 
 
 It stands to reason that jurisdiction 
 cannot be shown on one day by less mat- 
 ter than on another. Consequently ap- 
 pears the reason why the record must be 
 pleaded in res adjudicata proceedings. 
 
 That an ordinance is unconstitutional 
 without specifying what ordinance and 
 what part of the constitution is violated 
 or is in conflict, is void for uncertainty. 
 
 Leading Cases. — 86. Hanford. 
 
 It is obnoxious to convenience. Excelsior: 
 188 Mo. 129-132. 
 
 Facts, not conclusions, must be pleaded; A 
 general allegation that a judgment was 
 obtained by fraud and that the court was 
 imposed upon, is not sufficient to give 
 jurisdiction of a suit to set the judgment 
 aside, but the facts showing such fraud 
 and imposition must be set out. Travel- 
 ers, 49 C. C. A. 309, 111 Fed. 270, 55 
 L. R. A. 538. Kinnier, 45 N. Y. 532, 6 
 Am. Rep. 132, 14 Cyc. 822. 
 
 Conclusions of law will not confer jurisdic- 
 tion of a subject-matter; they do not 
 authorize a court to proceed with a case. 
 Courts reason from pleadings, and as 
 this quotation will indicate ; 
 
 "It must not be forgotten that we are 
 dealing with pleadings, not evidence, and 
 with pleadings which, as we have said; 
 evidently put the plaintiff's case as high 
 as it can be put. Therefore there are no 
 inferences to be drawn, and therefore 
 cases like Hammond v. Bussey, 20 Q. B. 
 Div. 79, do not apply. It is a simple 
 question of allegations, which by de- 
 clining to amend, the plaintiff has ad- 
 mitted that it cannot reinforce." Verba 
 fortius. Globe Co., 190 U. S. 540, 546. 
 
 87. RUSSELL v. MANN (1863), 22 Cal. 
 132. S. P. Rushton. A pleading must de- 
 scribe a cause of action or a ground of 
 defense. J'Anson ; Skeate ; Hodgson, 168 
 U. S. 262 ; Williams v. Hingham ; Cruik- 
 shank ; C. v. Bean ; De non apparentibus, 
 etc. ; Fabula, etc. 
 
 Statutory rights demand strict description. 
 Russell ; Suth. Stat. 398, 399 ; Williams ; 
 S. v. Thurstin ; R. v. Waverton. Also 
 statutory crimes. Ledbetter v. U. S. 
 
 (1898), 170 U. S. 606. See Poole v. P. 
 
 (1898), 24 Colo. 510, 65 Am. St. 245, 
 n. (exceptions need not be negatived). 
 
 Personal representatives must comply 
 with a statute before suing. Hagen v. 
 Kean (1875), 3 Dill. (U. S. C.) 124, 
 No. 5899, Fed. Cas. ; St. Louis R. R. v. 
 Needham (1892), 52 Fed. 371, 10 U. S. 
 App. 339 (necessary parties jurisdic- 
 tional). 
 
 88. GENTRY V. TJ. S. (1900), 41 C. C. A. 
 185, 101 Fed. 51. Cited, §§ 22, 78, 79, 
 107, 168, 176, 185 ; § 119, Gr. & Rud. 
 
 4 court is bound by its record. Pleadings 
 confer jurisdiction, and these cannot be 
 departed from ; and to do so renders all 
 proceedings a nullity. Borkenhagen. 
 This case holds with the Rushton, Wheat- 
 ley, Eddy Co., Munday and Windsor cases. 
 and it stands to support a motion in 
 arrest of judgment. McAllister ; Dovaston. 
 It should be compared with Haley v. 
 Kilpatrick (1900), 104 Fed. 646 (de- 
 fense assumed from conduct and not sub- 
 ject to a motion non obstante veredicto). 
 See Supply, 10 Colo. 327, 3 Am. St. 586 ; 
 Hume. Cf. J'Anson. 
 
 89. PROVIDENT LIFE AND TRUST 
 CO. v. MERCER COUNTY (1898), 170 
 U. S. 593-606 (42 L. ed. 1156). 
 
 Municipal and county boards have pro- 
 vided for them a statutory record, which 
 must exist and evince their acts. See 
 
54 
 
 DATUM POSTS. 
 
 Leading Oases. — 89. Prov. Life. 
 
 Hopper; Andes v. Ely (1896), 158 U. S. 
 312 (estoppel from objecting). 
 
 Estoppel of record upon town. Huron, 
 57 U. S. App. 593, 86 Fed. Rep, 272, 
 30 C. C. A. 38, 49 L. R. A. 534, n. 
 
 90. GREEN V. PALMER (1860), 15 Cal. 
 411, 76 Am. Dec. 492, n. ((acts not con- 
 clusions, must be pleaded) ; Piercy ; Sto. 
 PI., § 10 ; 1 Gr. Ev. 64 ; 2 id. 7 ; 3 id. 
 16 ; Rushton : 5, 19, 21, 22, 23, 91. 
 
 Cited, pp. 5, 29 ; §§ 5, 142, 153, 252, Hughes' 
 Proc. ; §§ 142, 202, 254, 278, Gr. & Rud. 
 
 Negative allegations, if proper, need not be 
 proved. Green. What must be alleged. 
 Green. De non apparentibus, etc. 
 
 Evidence should not be pleaded. 
 Green; McCaughey ; And. Steph. PI. 218. 
 
 Facts should be alleged directly and posi- 
 tively, without argument or inference. 
 Green; McCaughey (instructive case) : 
 184 ; Cruikshank : 232 ; Mallinckrodt : 
 12a. See Argumentative ; Alternative ; 
 Hypothetical ; And. Steph. PI., § 204 
 Tyl. ed. 339. 
 
 Rules of res adjudicata suggest the im- 
 portance of certainty. Green ; Outram ; 
 Cromwell ; C. v. Roby ; Dovaston. 
 
 After Field's accession to the supreme 
 court of the United States, such conclu- 
 sions as we find in Farni v. Tesson ceased. 
 Field decided Green, also Windsor, and 
 dissented from Cooper v. Reynolds. In 
 Green he defended the code with great 
 force and ability, and enumerated certain 
 slanders of it by those who did not under- 
 stand it. See Dovaston ; J' Anson. 
 
 Matter of law need not be pleaded. See 
 Judicial Notice ; Lanfear : 181. 
 
 91. J'AHSON V. STUART (1787), 1 
 Term Rep. (D. & E.) 748, 2 Sm. L. C. 
 987-1001, 8th ed. 
 
 Cited, §§ 11, 13, 30, 99, 108, 239, Gr. & Rud. 
 
 J 1 Anson stated : Confession and avoidance 
 pleas; essentials. Stuart published of 
 J'Anson that he was a swindler and con- 
 fidence man, for which J. sued. S. de- 
 fended upon a plea in glittering generali- 
 ties, i. e., that J. was illegally, fraudu- 
 lently and "dishonestly concerned and 
 connected with, and was one of, a gang 
 of swindlers and common informers, and 
 had also been guilty of deceiving and de- 
 frauding divers persons with whom he 
 had dealings and transactions, wherefore 
 he printed and published," etc. To this a 
 special demurrer was interposed, objecting 
 that no facts, dates, items or persons 
 were set forth. Held, that the plea was 
 bad ; that fraud must be specifically 
 pleaded. 
 
 Ex dolo malo, etc. ; Pearsall ; Jenkins v. 
 Long ; Bigl. Fraud, 450. J'Anson cited 
 and approved in Van Ness v. Hamilton 
 (1822), 19 Johns. 349, 368; 1 Chit. PI. 
 569, 7th ed. ; 569, 16th Am. ed. In gen- 
 eralibus versatur error; Bolus. 
 
 General allegations allowed in criminal 
 cases only where the charge is keeping a 
 bawdy-house or barratry. J'Anson. In 
 all criminal cases facts must be pleaded. 
 Cruikshank ; C. v. Roby ; Moore v. C. ; 
 Zierenberg v. Labouchere (1893), 3 Q. B. 
 
 Leading Cases. — 91. J'Anson. 
 
 183-191 ; 9 Rul. Cas. 105, n. Justifica- 
 tion pleas must set out the particular 
 instances. Oystead v. Shed (1815), 12 
 Mass. 505. 
 
 The general rule that there must be plead- 
 ings, and they must be certain, has few 
 exceptions. Reasons for this rule must 
 be gathered from all the grounds, which 
 are nowhere fully enumerated. As to 
 enumerating and defining these, most 
 works are sadly defective. These reasons 
 involve the conserving of principles of 
 procedure. 
 
 Collectively consider S. v. Thurstin ; R. 
 v. Waters : U. S. v. Perez ; R. v. Vaux ; 
 R. v. Vandercomb ; C. v. Roby ; Fabula 
 non judicium; Campbell v. Porter ; Crom- 
 well ; Dovaston. 
 
 Fraud must be specifically pleaded. Clark 
 v. Reeder (1895), 158 U. S. 505-531; 
 Farrar, 135 U. S. 609. This is a man- 
 datory essential and non-waivable re- 
 quirement, and applies to all pleadings. 
 Nichols v. Stevens (1894), 123 Mo. 96, 
 45 Am. St. 514 (instructive case). Fraud 
 must be specifically alleged and iikewise 
 denied. Bigl. Fraud, 454 ; 4 Encyc. PI. 
 & Prac. 664-672 (pleas of confession and 
 avoidance) . 
 
 Facts, not conclusions, must be pleaded. 
 Green ; Williams v. Hingham ; Bartlett ; 
 Russell ; Pom. Code, 535 : cases ; C. v. 
 Eastman ; S. v. Thurstin ; Moore v. C. 
 See Omne majus continet in se minus; 
 Dovaston : 217. 
 
 Answers, pleas and justification defenses 
 must be sufficient. J'Anson, 1 Chit. PI. 
 563, 564 ; Skeate ; Oystead, supra; Crane, 
 10 Colo. 265. Frivolous answers are nul- 
 lities and may be stricken as void. Bliss, 
 PI. 421 ; Pom. Rem. 546 ; Johnson, 4 Colo. 
 App. 183 ; Garland v. Davis ; Nichols 
 (facts must be pleaded, not conclusions of 
 law). See Feaud ; Green; Bro. Max. 435. 
 
 Answers are as strictly judged as any other 
 pleading. J'Anson ; San Juan Co., 6 
 Colo. 214; 1 Chit. PI. 566. Ambiguum 
 placitum, etc. ; Ambigua responsio, etc. 
 Decisions that deny this depart from 
 first principles. Dovaston. 
 
 Justification pleas; record essential for. 
 Moore v. Watts (1822), Breese (111.), 
 42; Butler v. Nevin (1878), 88 111. 575, 
 578; West \. Hayes (1897), 120 Ala. 92, 
 74 Am. St. 24 ; Woodbridge v. Connor 
 (1860), 49 Me. 353, 77 Am. Dec. 263 (one 
 must see to a proper record for protec- 
 tion). Deitsch. 
 
 Nuisance ; defense in, must set forth facts. 
 Bro. Max. 381 : cases ; Flight v. Thomas 
 (1839), 10 A. & E. 590 (37 E. C. L. R.) ; 
 also justification pleas. See Bro. Max. 
 435; Smith v. Shirley (1846), 3 C. B. 
 142 (54 E. C. L. R.) ; Price v. Seeley, sub, 
 Justification. A tax collector must set 
 out his warrant. Butler v. Nevin. An 
 authority must be pleaded. Id. 
 
 Non obstante veredicto motions afford a 
 foundation from which much may be de- 
 duced, and exactly as from n motion in 
 
DATUM POSTS. 
 
 55 
 
 Leading Cases. — 91. J 'Anson. 
 
 arrest, or from collateral attack, or the 
 functions of the general demurrer. 
 Codes require that answers and replies be 
 sufficient in substance. StUl labored and 
 even doubtful views are expressed, and 
 the courts that deny the rule of the gen- 
 eral demurrer, i, e., that it searches the 
 whole record and attaches to the first 
 fault, are greatly respected. Pom. Rem., 
 §§ 597-600 : cases. See Hume. 
 Every presumption is against a pleader 
 throughout, and even in a bill of excep- 
 tions. Mercantile, 205 U. S. 298. Verba 
 fortius, etc. Dovaston ; Sto. PI. § 665 ; 
 Walker v. Turner ; notes to Lampleigh. 
 De non apparentibus, etc. ; Insurance Co. : 
 157 (bill of exceptions). 
 Defenses not pleaded are waived. J'Anson ; 
 Crepps. An authority must be pleaded. 
 Hopper ; Cromwell ; Garland ; Dickson. 
 If one may raise a defense at any time 
 and in any way, as so many courts are 
 now holding, it seems that all the strict 
 regulations of a defendant's pleadings 
 might well be omitted. But see Munday. 
 Justification defenses must be pleaded. 
 Field ; J'Anson ; Crepps ; 1 Chit. PI. 539, 
 545, 7th ed. ; 536, 541, 16th Am. ed. ; 
 Woodbridge v. Conner. 
 Conclusions of law will not confer jurisdic- 
 tion of subject-matter. Green ; Hanford ; 
 Cruikshank. 
 Facts constituting, must be set out. Price 
 v. Seeley ; Mure v. Kaye, sub, Conclu- 
 sions. An authority must be pleaded, 
 and facts must show it; and what ought 
 to be of record must appear from record. 
 Iverslie v. Spaulding. See Due Process 
 of Law Record. 
 
 Facts not conclusions, must be pleaded. 
 2 Add. Torts, 841; 1 Wat. Tres., 228, 
 246 ; And. Steph. PI. 240 ; Watson v. 
 Christie (1800), 2 Bos. & P. 224; 1 
 Wat. Tres. 270, 289 ; 1 Suth. Dam. 159 ; 
 2 Gr. Bv. 93, 97, 274; In generalibus 
 versatur error. 
 Removal of causes from state to federal 
 courts demand certain pleadings. C. & 
 O. R. R. v. Dixon (1900), 179 U. S. 131. 
 See Certainty. 
 
 Mr. J. W. Smith, in 1835, selected eight 
 cases representing great underlying 
 fundamental principles of procedure sup- 
 porting the entire fabric of jurisprudence, 
 as will appear from a close investigation. 
 These cases are : Rushton, Bristow, Do- 
 vaston, J'Anson, Rice, Crepps, Robinson 
 and Kingston's Case. Evidently he 
 thought they were of leading import- 
 ance and that they were included within 
 the meaning of "due process of law," 
 as then defined, and as defined in Mur- 
 ray : 219 ; Cruikshank : 232. 
 
 The 8th edition of Smith's leading 
 cases, contain all of Smith's cases. Since 
 that edition the work has been made over 
 by careless publishers, or local or pro- 
 vincial editors. By a comparison of the 
 7th, the 8th and the 9th editions the 
 
 Leading Gases. — 91. J'Anson. 
 
 facts referred to will appear. The 9th 
 edition is of but little value. 
 
 It will be very interesting and most in- 
 structive to determine the position of 
 those cases in the law to-day. For that 
 purpose all possible mention of them is 
 made, as will elsewhere appear. They have 
 been omitted, overlooked and miscon- 
 strued too long. 
 
 It should be observed that in several 
 states no one can tell whether the prin- 
 ciple in Rushton would be respected or 
 denied, notwithstanding the fact that 
 codes reaffirm it in the most pronounced 
 and explicit way, and the same may be 
 said of Bristow ; and as it is with those 
 cases so it is with J'Anson. The inde- 
 fensible attacks upon Dovaston {Verba 
 fortius, etc.) are referred to under that 
 case. Crepps is both denied and upheld. 
 Hume. 
 
 Robinson v. Raley opposes the demoral- 
 izing use of pleadings by making of them 
 instruments of chicane. Notes, Cutter ; 
 Graver ; Wonderly ; Fabula, etc. 
 Conclusions of law not aided by denying 
 them. Fost. Fed. Prac. 146 ; Dickson. 
 
 The law in Rice v. Shute is also denied 
 in those states that disregard the plead- 
 ings and the essentiality of parties. 
 J'Anson of course is denied along with 
 Rushton and Dovaston. And. Steph. PI., 
 § 230 : cases, 2d ed. ( conclusion of law 
 sufficient to charge fraud). 
 
 J'Anson may be cited to the point that 
 facts, not conclusions of law, must be 
 pleaded. (Green: 90.) That conclusions 
 of law are a nullity and cannot be aided 
 by a waiver or conduct, or by denials-. 
 Decisions that so hold maintain the doc- 
 trine of J'Anson. 
 
 It may also be cited to the point that 
 defenses not pleaded are waived. If one 
 does not present his defense at the right 
 time and in the right way, he waives it ; 
 he cannot afterward insist upon a defense 
 he did not plead. Defenses do not depend 
 upon oralities, but upon juridical state- 
 ments made in writing and filed with the 
 clerk. (Munday.) For protection, the 
 division of state power is involved and 
 concerned. Such is the law in J'Anson, 
 and to sustain this, decisions can be 
 found in all states, and in several very 
 contradictory decisions also. And as it 
 is with J'Anson so it is with the Rush- 
 ton, Bristow, Dovaston, Rice and Crepps 
 cases. Admittedly the Kingston Case 
 (rules of res adjudicata is in the greatest 
 confusion. And of course that would re- 
 sult wherever the mandatory record is 
 abolished or impaired, or as it is where 
 the Rushton, Dovaston and J'Anson cases 
 are denied. The abolition of that record 
 carries with it all that depends upon it. 
 The conserving principles of procedure 
 depend upon that record. §§ 83-123, Gr. 
 & Rud. Without more, it must be seen 
 that all those cases are denied in many 
 states. Consequently we may anxiously 
 
56 
 
 DATUM POSTS. 
 
 Leading Cases. — 91. J 'Anson. 
 
 inquire after the meaning of "due pro- 
 cess of law" under the "new dispensa- 
 tion." 
 
 Now, from such facts we may estimate 
 the difference between the "late," the 
 "modern" and the "American case," and 
 what prominent and popular writers call 
 "ancient" rules, or "the views of the 
 older authors." All can see that a juris- 
 prudence founded on the cases above 
 mentioned is very unlike a system of 
 laws that excludes them. In American 
 states are diverse and hostile jurispru- 
 dences ; they are tribal, and with each 
 tribe are warring chiefs. 
 
 See notes to Lampleigh ; Cutter ; Horan ; 
 Dovaston ; Theoby of the Case. 
 
 Upholding the rationale in Crepps, in 
 Kempe's Lessee and in Ransom, and deny- 
 ing it in Harvey : 123, and Cooper v. 
 Reynolds, is not establishing any new 
 rule, but instead, chaos. The decision in 
 Windsor supports the rule in Rushton 
 and overrules Cooper. From such facts, 
 how can it be said that the rationale 
 of the Rushton Case is obsolete? It 
 certainly is not obsolete in the federal 
 courts, nor in England, nor in one New 
 England state, nor in New Jersey nor 
 Wisconsin, and other states. And in 
 New York, Indiana, Illinois, Missouri and 
 Colorado and this class of states there 
 are just as many decisions, if not more, 
 supporting the Rushton and Crepps cases 
 than oppose them. The "modern and 
 enlightened view" must be established, 
 namely, from decisions in those states. 
 But when arrayed they will be found to 
 be too incongruous and conflicting to es- 
 tablish anything that can be intelligently 
 commended for that stability of law es- 
 sential for protection. 
 
 It is indefensible to discuss the "mod- 
 ern and enlightened view" of a basic sub- 
 ject and of "due process of law" until 
 the wreck of other systems is cleared 
 away for the "view." A system of law 
 developed upon the mandatory record 
 is so unlike the ancient, the Asian and 
 the African conceptions that the due pro- 
 cess of law of the one is both grotesque 
 and absurd if applied to the other. A 
 system of laws founded upon Rushton, 
 Wheatley and Windsor is one kind, while 
 that which is founded on Cooper and other 
 cases that confuse what relates to the 
 division of state power and also the 
 functions of the mandatory record and 
 the statutory record are very unlike. To 
 aid the reader to judge of Cooper it may 
 be well to state that "Parson" Brownlow 
 commenced the publication of his summons 
 in the "Knoxville Whig" contemporane- 
 ously with the investment of Knoxville 
 by the Confederate army under Longstreet. 
 (It is fair to assume that Reynolds was 
 without the city.) The summons was 
 published during the siege, September 
 26 to December 4, 1863. But the case 
 is, if possible, more objectionable for 
 
 Leading Cases. — 91. J 'Anson. 
 
 other reasons, and particularly for its 
 disregard of the division of state power, 
 and of the functions of the mandatory 
 record, of the rule "what ought to be of 
 record must be proved by record, and 
 by the right record." Expresaio unius, 
 etc. 
 
 Due process of law cannot be defined 
 under the conditions we indicate, and 
 never can be satisfactorily, in disregard 
 of the primal rule of evidence last men- 
 tioned. That rule lies at the base of a 
 certain definite theory. 
 
 To select six truly great and leading 
 principles or cases relating to any sub- 
 ject of the law, and then exclude them 
 therefrom, or possibly worse yet, apply or 
 reject them in wild, reckless alternation, 
 there would result to those subjects what 
 has happened to procedure in more than 
 a dozen states. 
 
 Those who write and teach the law in 
 ignorance or denial of the datum posts of 
 old have made of jurisprudence, which is 
 the greatest asset of government, a climax 
 of absurdities and incomprehensible for 
 the understanding. To illustrate : Look 
 at the result of jumbling the history and 
 uses of the mandatory and of the statu- 
 tory records in New York, Illinois and 
 states that have followed the "new and 
 enlightened views" of New York and Illi- 
 nois, as advocated by prominent authors. 
 (2 Thomp. Tri., §§ 2310, 2311 ; And. 
 Steph. Pi. 230, a., 2d ed.) The result is 
 discoverable in Colorado, Indiana and 
 Missouri. From the fountain of error, as 
 to those records, necessarily follows the 
 denial of Verba fortius, and of Frustra 
 probatur, quod probatum non relevat and 
 their cognates. 
 
 When the very able courts of other 
 states state the liberal rules of code con- 
 struction in New York, and of the Prac- 
 tice Act of Illinois, jurists of the highest 
 order are lost in bewilderment, as the 
 cases show. These courts are unable to 
 gather the law from the decisions and 
 authors of New York, and states that fol- 
 low. See Atlantic. Old and influential 
 orators at international conventions fail 
 to mention what has come to "American 
 law." If they stated the facts, then it 
 would appear that American states are 
 more widely apart than are the states of 
 Europe. 
 
 If learned and venerable jurists cannot 
 determine datum post law of a state then 
 verily is the student menaced. See Liter- 
 ature, Hughes' Proc. 
 
 States that deny the maxims of the un- 
 written constitution have filled their re- 
 ports of decisions with "useless grists of 
 profuse jargon," and made of jurispru- 
 dence an incomprehensible subject and 
 hopelessly beyond human capacity. Lange: 
 159 ; Dovaston : 217. 
 Conclusions of law are insufficient. The 
 object of a plea is to apprise a party of 
 
DATUM POSTS. 
 
 57 
 
 Leading Cases. — 91. J 'Anson. 
 
 what ue must meet, and the court of 
 what it is to try, and all interested in 
 the record of what was tried. Parks, 
 22 111. 522. See Conclusions. Answers 
 mus be sufficient. Windsor ; Equitable 
 estoppel. Pacts constituting must be 
 pleaded. Hall v. Henderson. See Estop- 
 pel. 
 
 Defenses not pleaded are waived. Cromwell, 
 e. g., that one is a bona fide purchaser. 
 Clark, 186 U. S. 206 ; Kollock. 
 
 Justification defenses in slander and libel — 
 defamation — suits must be pleaded. J'An- 
 son ; Rutherford, 180 Mass. 289, 91 Am. 
 St. 282-309, ext. n. 
 
 Justification matter in trespass must be 
 pleaded; it is not admissible under the 
 general issue. Finch, 2 Stew. & Port. 
 (Ala.) 83, 23 Am. Dec. 299. Contra: 
 Barrett, 129 Ala. 179, 87 Am. St. 54, 
 ii. : cases. 
 
 Courts that disregard the rule of evi- 
 dence above mentioned, and its cognates ; 
 Verba fortius accipiuntur contra profe- 
 rentum, and Frustra probatur quod proba- 
 tum non relevat, depart from the essen- 
 tial and basic principles of a constitution- 
 alism. Those maxims are first principles 
 of the prescriptive. Constitution. Wind- 
 sor : 1 ; Lange : 159. 
 
 92. BOSEN v. U. S. (1896), 161 U. S. 29 
 (40 L. ed. 606), 10 Am. Crim. Rep. 251- 
 272. 
 
 Indictments are subject to motion in arrest 
 after trial and verdict. Substantial de- 
 fects are not waived. McAllister ; Slacum. 
 
 Grossly obscene and scandalous matter need 
 not be spread upon a court's record. A 
 general description of it is sufficient. If 
 a defendant need further information he 
 may apply for a bill of particulars. Rosen, 
 Shiras and White, JJ., dissenting. Ap- 
 proved : Price v. U. S., 165 U. S. 312 ; 
 Wilson v. U. S., 164 U. S. 702 ; Timmons 
 v. U. S., 85 Fed. 206, 54 U. S. Ap. 586. 
 See Defamation. Contra; Bradlaugh v. 
 E. (1878), 3 Q. B. Div. 607, 14 Cox, C. 
 C. 68, 3 Am. Crim. Rep. 464-469, 470-503, 
 4 Mews' B. C. L. 1692 ; Bish. Crim. Proc. 
 g.v. (bad after verdict — states R. v. 
 Goldsmith : 20 ; and other cases) ; Green 
 V. Elbert, 137 U. S. 615 (irrelevant argu- 
 ment stricken). What must be pleaded in 
 eases of libel, publishing obscene matter, 
 and forgery. Rosen : cases ; R. v. Brad- 
 laugh, 3 Am. Cr. Rep. 470-503. 
 
 The federal Supreme Court often de- 
 parts from essential requirements either 
 to sustain or to deny. See Breeze v. 
 Haley : Hughes' Proc. Pettibone. 
 
 R. v. Bradlaugh proceeded upon the 
 view, that what is necessary and material, 
 however obscene and impure, must be 
 admitted from necessity. Necessity is a 
 ground and rudiment of law. A court 
 ought not consider its record denied by 
 responsive matter depending upon facts 
 that must be presented and considered 
 from the nature of the case. Material alle- 
 gations are essential for the due admin- 
 
 Leading Oases. — 92. Rosen. 
 
 istration of justice, and therefore they 
 must be permitted. In prtssentia majoris. 
 
 Defamation. Exact words must be set out. 
 2 Bish. Crim. Proc. 808 ; J'Anson. When 
 court will instruct a jury upon a point 
 of law. Rosen, p. 43, 10 Am. Crim. Rep. 
 263. Ad quwstionem, etc. 
 
 93. WILLIAMS v. BAHEHEAD (1873), 
 19 Wall. (U. S.) 563 (23 L. ed. 134) ; 
 Bliss, PI. 20, 196, Fost. Fed" Prac. 53, 
 Van Zile, Eq. PI. 15 Cyc. PI. & Pr. 611. 
 
 Parties ; their essentiality. Williams ; Har- 
 rison, 95 Va. 721, 64 Am. St. 830 ; Sav- 
 age, 19 Wash. 679, 67 Am. St. 751, n. ; St. 
 Louis R. R. v. Needham (1892), 52 Fed. 
 Rep. 371, 3 C. C. A. 129, 10 U. S. App. 
 339 (necessary parties jurisdictional) ; 
 S. D. V. N. C. (1904), 192 U. S. 286-352, 
 citing California, 157 U. S. 229, 15 S. C. 
 Rep. 591 : stated in Kircher, 117 Wis. 68 
 (code rule) ; Douglas Co., 38 Wis. 179 ; 
 Castle, 113 Wis. 346 (code rule is the 
 common-law rule in equity) ; Shields v. 
 Barrow (1856), 17 How. 130 (court will 
 not set a deed aside unless all parties 
 in interest are before it) . 15 Cyc. PI. 612. 
 
 The question of parties involves the argu- 
 ment of Audi alteram partem. Fabula 
 non judicium. Cause of Action. Barney : 
 6 Wall. 288. And this question is as 
 profound as any in law and in- 
 volves the technical protection issuing 
 from the mandatory record. It involves 
 the ideas of what constitutes coram judice 
 proceedings, the first rule of res adjudi- 
 cata. Not even an injunction can issue 
 or affect one not a party. Savage, supra; 
 nor a receiver be appointed. Baker, 32 
 111. 79 ; Weaver v. Toney : 67. 
 
 Misjoinder and non-joinder of parties. See 
 Rice. Not a ground of general demurrer. 
 Svanburg v. Fosseen (1899), 75 Minn. 
 350, 43 L. R. A. 427 : cases. 
 
 Party with an actionable interest is juris- 
 dictional. Sto. PI. 259, Sto. 206-262 : 
 cases, 1 Beach Eq. 105 ; Downey v. Seib, 
 185 N. Y. 926, 113 Am. St. 926-932. 
 Ferguson : 264 ; Bro. Max. 329, n. 
 Wronged person only can apply to a court. 
 Fabula; Williams : 94 ; Swan Case. Courts 
 are created to remedy wrongs, and these 
 must be presented. Rushton. And the 
 names of parties must be set forth. Wie- 
 bold : 98. All in interest must join. Re- 
 covery at law must end litigation. St. 
 Louis R. R. v. Needham. 
 
 "Real party in interest" is a right that 
 cannot arise out of fraud. One wrong- 
 fully holding commercial paper cannot re- 
 cover upon it. One has no right before a 
 court by his own wrong ; he is not the real 
 party in interest ; this may be pleaded 
 against him. City Bank, 29 N. Y. 554, 
 86 Am. Dec. 332. 
 
 Only parties named in a deed can sue upon 
 it. Bro. Max. 547, n.. Chesterfield, 3 H. 
 & C. 677, 691 ; Mews' E. C. L. 1350 ; 
 Cooch ; Briggs ; sub, Taintor : 344 ; Huffc. 
 Ag. 26, 127, 188. 
 
 In some courts the absence of the right 
 
58 
 
 DATUM POSTS. 
 
 Leading Cases. — 93. Williams. 
 
 party must be waived, 105 Mo. Ap. 242 ; 
 91 Mo. 268. 
 
 Agent having bound himself by a con- 
 tract under seal, the principal may sue in 
 assumpsit. Sto. Ag. 161, 162; 1 Pars. 
 Conts. 63, 64 ; Rule 8 : Dicey, Parties ; 
 Fullam, 9 Allen, 1; Traynham, 15 Tex. 
 170, 65 Am. Dec. 152 ; New Jersey Co. 
 6 How. 344. Rules relating to parties. 
 And. Ste'ph. PI. 43, 2d ed., 99 Am. St. 414. 
 
 Necessary Parties ; 15 Cyc. PI. & Prac. 
 611-649. Sto. Eg.. PI. See Parties. 
 
 94. WILLIAMS V. EGGLESTOH (1898), 
 170 U. S. 304 (42 L. ed. 1049). 
 
 Cited, §§ 12, 21, 79, 155, 156, 224, .329, 
 Hughes' Proc. 
 
 Cited, § 312, Gr. & Rud. 
 
 Only a wronged party can complain to a 
 court or assign error. Gibler : Alterius 
 circumventio, etc. Actio non datur non 
 damniflcato ; Smith, 191 V. S. Pr. 138 
 (the jurisdiction of this court can only 
 be involved by a party having a personal 
 interest in the litigation). 
 
 One of the essentials of "due process of 
 law" is an actor, who shows his right 
 to complain. Murray: 219 (what is due 
 process of law). 
 
 Equity attaching for one purpose at- 
 taches for all. Ferguson : 264 ; Brugger : 
 162 ; Yellowstone Nat'l Bk., 19 Mont. 402, 
 44 L. R. A. 243. 
 
 A cause of action must be stated against all 
 joined, else there is a want of facts. Amer- 
 ican Bk., 152 Ind. 582, 588 : cases, 71 
 Am. St. 345, 350 : cases. 
 
 95. KICE v. SHUT! (1761), 5 Burr. 
 (Eng.) 2611, 2 Wm. Bl. 695, 1 Smith: 
 1405-1417 ; omitted in 9th, 10th, and 11th 
 eds. ; 5 Blackf. (Ind.) 95, Huff. & W. 
 Conts. 486. See Abatement. 
 
 Joinder and non joinder of parties discussed. 
 Rice, in Robertson, 18 Johns. 459 ; Shee- 
 hey v. Mandeville (1810), 6 Cranch (U. 
 S.) 253 (a judgment against one only is 
 no bar to a judgment against two) ; 
 Whart. Conts. 824; 1 Pars. Conts. 23-31. 
 All joint contracts should be sued joint- 
 ly, and if they are not, it is cause for 
 abatement, if pleaded. Rice. But if the 
 facts appear in the declaration, then it is 
 subject to demurrer, or may be assigned 
 for error, and is subject to a motion in 
 arrest of judgment. Bragg, 5 Blackf. 
 (Ind. 95), Huff. & W. Conts. 486. De- 
 murrer must point out necessary parties. 
 1 Beach, Eg.. Pr. 78. See Parties. 
 
 Misjoinder of plaintiffs demurrable. 1 Beach, 
 Eq. Pr. 79. Misjoinder only a defense to 
 him misjoined. 1 Beach, Eq. Prac. 80. 
 
 Crimes; joinder of parties. Bish. Crim. 
 Proc. 462a-476 ; Whart. Cr. PI. & Pr. 
 301-309 ; Clark, Cr. Proc. 111-113. See 
 Joinder. 
 
 Only one wronged can claim that a 
 law is unconstitutional. Winnebago, 205 
 U. S. 354. 
 
 96. GIEirR v. MATTOON (1897), 167 
 111. 18. Cited, § 12, 21, Hughes' Proc. 
 
 Assignments of error are a pleading. Gibler. 
 
 See Assignments ; Appellate Procedure. 
 
 Only party in interest can assign error. Gib- 
 
 Leading Cases. — 96: Gibler. 
 
 ler; So. Pac. R. R. v. U. S. (1897), 168 
 U. S. 66 ; Williams, 93, 94. Alterius cor- 
 cumventio alii non prtebet actionem: A de- 
 ception practiced upon one person does not 
 give a cause for action to another. See 
 Actio ; Assignatus, etc. 
 
 Abstract must contain matter upon 
 which error is assigned. Gibler. See 
 Abstract : 299 ; Vanderventer v. Goss. 
 Lurking questions in a record will not be 
 sought; and picked out by a court. Gibler. 
 Grand Trunk R. R. v. Ives. Vanderven- 
 ter ; § 52, Gr. & Rud. An index is not an 
 abstract. Bishop v. Lowens (1896), 63 
 111. Ap. 351. 
 
 97. FABNAH v. BROOKS (18<t0), 9 Pick. 
 212-250, n. : cases ; stated, 1 Bigl. Fraud, 
 115 ; C. v. Eastman : 22. 
 
 Cited, § 153, Hughes' Proc. 
 
 Indefiniteness must be aptly objected to. 
 Held in Farnam (proofs may aid general 
 allegation of fraud). See J 'Anson ; Dob- 
 son ; Frustra. 
 
 How far proofs will aid a general allegation 
 of fraud. Dovaston : cases ; King v. O. : 
 205 ; And. Steph. PI. 230 : cases ; J'Anson. 
 If, in a bill in equity to open an account 
 settled, the facts alleged and proved show 
 fraud, actual or constructive, in the settle- 
 ment, the plaintiff will be entitled to re- 
 lief, notwithstanding the bill contains no 
 direct averment of fraud. Farnam is 
 widely cited as to the duties of agents or 
 trustees, one of which is that they be 
 fair and open in their dealings. Michoud ; 
 Keech. 
 
 Concealment to affect the statute limitations. 
 Farnam ; Pearsall. 
 
 If the facts pleaded show fraud, this is 
 sufficient without using the word "fraud" 
 or "fraudulent." It is sufficient if the in- 
 ference of fraud arises from the facts 
 stated as inevitable sequence. See Fbadd; 
 Warren, 157 N. Y. 259, 68 Am. St. 777; 
 2 Chit. Conts. 1039 ; Home, sub, Chester- 
 field, ante, Dovaston : cases. 
 
 Laches ; how these affect a beneficiary. 
 See 1 Bigl. Fraud : Perry on Trusts ; Wood 
 on Lim. 
 
 Conclusions of law insufficient. Cruik- 
 shank : 232 ; Hanford : 86. 
 
 98. WIEBOLD V. HERMANN (1876), 2 
 Mont. 609; § 312, Gr. & Rud. 
 
 Names of parties; initials insufficient. Bates 
 7 Ark. 394, 46 Am. Dec. 293 ; notes, 42 
 Am. St. 562 ; Enewold, 39 Neb. 59, 42 
 Am. St. 557, n. ; 1 Bish. Crim. Proc. 669- 
 6896, Whart. Cr. PI. & Pr. 96-119 ; Clark, . 
 Cr. Proc. 54, 94, 121 ; Herf, 10 Ohio, 263 ; 
 Veasey, 93 Ala. 548, 13 L. R. A. 541, n., 
 4 Encyc. PI. & Pr. 492, 493 ; And. Steph. 
 PI. § 167; Garwood, 38 Cal. 216-230 (S. 
 P. as Wiebold). 
 
 Description of parties essential for ju- 
 risdiction. Williams : 93 ; Fabula, etc. 
 Proof of names. 3 Gr. Ev. 22. Idem 
 sonans. Pitsnogle v. C. ; Moynahan v. P. 
 Corporation name ; what are the same, 
 105 Mo. Ap. 446. 
 
 What cannot be done directly cannot be done 
 indirectly. Quando aliquid; Illsley. 
 
DATUM POSTS. 
 
 59 
 
 Leading Cases. — 98. Wiebold. 
 
 Corporate existence; when it must be averred 
 to describe a party. Harris : 229. 
 
 Mistake of name ; effect on records. 
 Stuyvesant, 167 N. Y. 421, 53 h. R. A. 
 562. Thornilly (idem sonans). 
 99. McARTHTJR v. EOWEII (1874), 72 
 
 111. 358, 359. 
 Cited, §§ 71, 128, 220, 223, 224, Gr. & Rud. 
 A plaintiff should look after the files. (.Ac- 
 tore.) A party must defend the affirma- 
 tive grounds of his recovery against the 
 general demurrer, or grounds of collateral 
 attack forever. Clem. 
 
 Necessarily the onus — burden of proof — 
 must rest upon some one, and of course 
 this should be the actor, and that is the 
 rule. (Favorabiliores, etc.) 
 
 An appellant must present a sufficient 
 record. If it omits an essential the appeal 
 will be dismissed. Nullus commodum, 
 etc. Vandeventer v. Goss. Convenience 
 requires this. § 52, Gr. & Rud. 
 
 A defendant becomes the actor if he 
 appeals. McArthur. 
 One seeking a review must present a proper 
 record, affirmatively, showing error. Red- 
 field, 130 U. S. 623, 625 (duties of appel- 
 lants) ; Insurance Co. : 157 (error must 
 affirmatively appear) ; Bates : 225 ; Rich- 
 ardson : 230 : cases. 
 100. BOWLUS V. PHOENIX UTS. CO. 
 (1892), 133 Ind. 106, 20 L. R. A. 400. 
 Cited, § 139, Hughes' Proc. 
 An answer is too narrow that assumes to be 
 a full defense, ■ when it is not. Bowlus ; 
 Oystead, 12 Mass. 505. S. v. Tomlinson 
 (1897), 16 Ind. Ap. 662, 59 Am. St. 335: 
 Walker, 150 Ind. 317. 324. See Rison : 
 253 ; Kraner : 299. 
 A denial and an affirmative plea cannot be 
 in the same paragraph. Bowlus ; And. 
 Steph. PI. 275. See Burley. Denials must 
 not be too broad, nor too narrow. Pueblo 
 County; And. Steph. PI. §§ 139-141 (Tyl. 
 ed. 238, 240) ; 1 Chit. PI. 645. 
 
 No pleading should be either too broad 
 or too narrow, with just one exception — 
 the ground of the general demurrer may 
 be added on argument, for a general de- 
 murrer is favored ; it is in fact the court's 
 pleading. It searches the whole record. 
 A pleading cannot be both an answer and a 
 counterclaim. Indiana Ass'n, 151 Ind. 
 518 ; Waverton : 70. 
 Answers must not be too broad nor too nar- 
 row. 1 Chit. PI. 541 ; Deitsch ; Moors v. 
 Parker (1807), 3 Mass. 310; Bradley, 7 
 Cow. 330; 1 Bncyc. PI. & Pr. 861; Sto. 
 PI. 443, 702, 852 ; Walker, supra. Mo- 
 tions ; same rule applies. Baum, 150 Ind. 
 378, 389, 390 : cases, 65 Am. St. 368. 
 Pleadings cannot be double. And. Steph. 
 PI. 175. Of rules which tend to produce 
 singleness and unity of the issue. And. 
 Steph. PI. 175-190. 
 101. HASKEL v. HASKEI (18S0), 54 
 Cal. 262. Cited, §§ 38, 277, Hughes' Proc. 
 Each cause of action must be perfect. Wa- 
 ters ; Waverton. See Singleness ; Cer- 
 tainty ; Bliss, PI. 119, 120, 121, 295. 
 A complaint must state a cause of ac- 
 
 Leading Cases. — 101. >Haskel. 
 
 tion ; it cannot appear from subsequent 
 pleadings. Boyd. See Reply ; Construc- 
 tive Notice ; Aidee. 
 
 One count may refer to another to avoid 
 prolixity. Verba relata, etc., 80 Am. St. 
 948, 952 ; Waverton ; Boyd : 62 ; Kewau- 
 nee : 29. 
 102. WONBEBLY v. LAFAYETTE 
 COUNTY (1899), 150 Mo. 635, 45 L. R. 
 A. 386 : cases, 73 Am. St. 474. P. 13 ; 
 §§ 5, 6, 13, 15, 21, 22, 29, 31, 42,. 
 52, 75, 79, 86, 93, 120, 130, 133, 135, 141, 
 147, 151, 152, 167, 183, 184, 321, 329, 
 349, 353, Hughes' Proc. 
 Cited, §§ 99a, 119, 122, 124a. 220, 241, 278, 
 
 Gr. & Rud. 
 A judgment in a federal court founded on 
 false jurisdictional allegations may be set 
 aside in a state court. See Graver ; S. v. 
 Baughman : 268 ; Sham Pleadings ; Cali- 
 fornia : 270 : cases ; Rutland's Case, 6 
 Rep. 53 : stated, Bro. Max. 131 ; Watkins ; 
 notes, Cutter ; notes : Lampleigh. 
 Fabula non judicium; fraud vitiates a judg- 
 ment. And it may be shown that a court 
 was misled. Starbuck : 263 ; 2 Best, Bv. 
 595 ; Bro. Max. 329, n., 342, 715, 737, 
 971 ; S. v. Baughman, 1 Freem. Judg. 118 ; 
 Needham : 261. Brown, Jurisdic. 1, 3 ; 
 Ex dolo malo, etc. Sham cases confer no 
 jurisdiction. Fabula. 
 A transaction out of which no wrong can 
 arise should not be entertained. See Doyle 
 sub, Mostyn ; S. v. Baughman ; Starbuck. 
 In pari. Conferring jurisdiction on fed- 
 eral courts by contrivances, allowed in 
 some cases. Dickerman, 176 U. S. 181. 
 Allegations of citizenship conclude a party 
 after final judgment. Riverdale Mills, 
 198 U. S. 188, 194. 
 
 In conferring and in the exercise of ju- 
 risdiction there is agency involved, and 
 of course this must relate to a lawful 
 subject-matter (In pari), and this cannot 
 be upon falsehood and fiction. Therefore, 
 an actual and real subject-matter is es- 
 sential, and without it Debile fundamen- 
 tum fallit opus applies. 
 Collusive convictions will be set aside as a 
 fraud and mockery, the result of con- 
 spiracy and subornation of perjury. R. v. 
 Gillyard, 12 Q. B. 527, 64 B. C. L. R.. 
 Bro. Max. 972. 
 Perjury is a ground for vacating a judg- 
 ment. Graver. See Pico v. Cohn (1891), 
 91 Cal. 129, 25 Am. St. 159-171, ext. 
 n., 13 L. R. A. 336 ; Friese, 26 Or. 145, 
 46 Am. St. 610 ; Colby, 59 Minn. 432, 50- 
 Am. St. 420, Bro. Max. 262 : cases ; Barr. 
 103. GRAVER v. FATTROT (1896), 76 
 F. R. 257: cases, 22 C. C. A. 156, 46 
 U. S. App. 268 : stated in Muuroe v. 
 Callahan (1898), 55 Neb. 75, 75 N. W. 
 151, 70 Am. St. 366, n. : cases. Cited, 
 p. 13; §§ 5, 21, 22, 42, 52, 75, 86, 93, 
 98, 122, 133, 147, 151, 152, 153, 184, 
 Hughes' Proc. ; §§ 52, 99a, 119, 278, Gr. 
 &. Rud. 
 Exceptio falsi, etc. ; Peccatum peccato, etc. ; 
 Fabula non judicium; Leges non verbis, 
 etc. ; Facta sunt, etc. Notes, Lampleigh ; 
 Cutter. 
 
■60 
 
 DATUM POSTS. 
 
 Leading Oases. — 103. Graver. 
 
 •Setting aside fraudulent decrees, obtained by 
 false pleadings and perjury, permissible. 
 Bro. Max. 327, 736. Marshall v. Holmes 
 (1891), 141 U. S. 598, cited and followed. 
 Ward, 102 N. Y. 287, Asbury, 148 Ind. 
 513 ; Scott v. McNeal, sub, Springer : 24 : 
 cases (a probate court cannot administer 
 on a living man's estate). 
 
 ■Judgment on a false affidavit in attachment 
 void. German Nat. Bank, 55 Neb. 103, 
 70 Am. St. 371 ; or a false allegation. 
 Wonderly, Bailey, Jurisdic. 154-164, 45 L. 
 R. A. 391; R. v. Eve (1836), 5 Adol. & 
 El. 780, 31 E. C. L. R. See Bodfield v. 
 Padmore, id. 785, n., Bro. Max. 262, 736, 
 8th ed. See also Perjuky. 
 
 False and sham pleadings actionable ele- 
 ments. Graver ; Brown : 105 ; California ; 
 Lowry; V. S. v. Throckmorton (1878), 98 
 U. S. 61, distinguished, otherwise denied. 
 
 A respondent owes a duty to disclose the 
 truth. Graver; Sto. PI. 852, 853. And 
 codes proceed upon the same rationale. 
 Kol lock ; Piercy (one may plead as many 
 defenses as he may have). 
 
 False and sham answers actionable. 
 See Malicious Acts ; Ferguson : 264. 
 Graver ; Mariott. Morality an implied 
 factor of procedure. §§ 5, 56, Hughes' 
 Proc. 
 
 Relief from judgments and decrees. Fergu- 
 son : 264 ; Needham ; Furman ; Borden ; 
 "Windsor. 
 
 ■False and fraudulent concealment of juris- 
 dictional facts renders- a decree void. 
 Crouch, 30 Wis. 667, 670 ; Streitwolf, 58 
 N. J. Eq. 563, 78 Am. St. 630 ; Banner v. 
 Blythe (1881), 17 L. R. Ch. Div. 480; 
 California ; Crowns ; Brown (altering the 
 papers to avoid statute of limitations) ; 
 Weeks, Atty's, 81 ; Butler v. P. : 106 ; 
 or for pleading a sham plea. Pierce v. 
 Blake (1697), 2 Salk. 515, Jenk. 52; 
 Blewitt v. Marsden (1808), 10 East, 237; 
 Merrington v. Becket (1823), 2 Barn. & 
 Cress, 81 9 E. C. L. R. ; Fortescue v. 
 Holt (1672), 1 Vent. 213, Weeks, Atfys, 
 §81. 
 
 .Domicile of parties in divorce, if an element, 
 must exist in fact. St. Sure v. Lindsfelt 
 (1892), 82 Wis. 346, 19 L. R. A. 515, n. ; 
 Borden ; Bailey, Jurisdic. 161 ; Moffat v. 
 U. S. (1884), 112 U. S. 24 (a patent to 
 a fictitious -grantee is absolutely void, 
 even against a bona fide purchaser) ; 
 Chester, 13 Cal. 558 ; R. v. Eve, supra; 
 Munro ; Ward ; Ashbury, supra. Or asser- 
 tion of jurisdictional facts. Wonderly. 
 Or false telegram to get a continuance. 
 Carter v. C. (1899), 96 Va. 791, 45 L. 
 R. A. 310. Or to misrepresent the con- 
 tents of a pleading to a court. Larson 
 v. Williams (1896), 100 Iowa, 110, 62 
 Am. St. 544, Weeks Att'ys, § 81 : cases ; 
 Sto. Eq. PI. 266, 267. 
 
 Perjury securing a judgment, will be relieved 
 against. Sub, Needham ; Barr : 265. 
 
 Aham Pleadings. 96 Minn. 422, 113 Am. 
 St. 630-663, ext. n. ; McKyring : 33. 
 
 Leading Cases. — 
 
 104. LOWST V. MOOBE (1897), 16 
 Wash. 476, 58 Am. St. 49. 
 
 False and evasive answers are grounds for 
 concluding one and for entering final judg- 
 ment. Graver ; California ; Richley v. 
 Proone (1823), 1 Barn. & C. 286, 8 E. C. 
 L. R. ; Garland : 60. Actor quia contra 
 regulam, etc. ; Jurare, etc. ; Maxims : Bouv. 
 Sic. 
 
 False pleadings were punished at com- 
 mon law. R. v. Gibson : 149 : cases. 
 Cited, S 15, Hughes' Proc. 
 
 105. BROWN, EX PASTE (1836), 1 
 How. (Miss.) 303 (altering file papers to 
 avoid statute of limitations). Cited, §§ 
 75, 103, Hughes' Proc. 
 
 Cited, §294, Gr. & Rud. 
 
 An attorney is subject to punishment for ob- 
 taining a rule or order, judgment or de- 
 cree on false, equivocal or groundless sug- 
 gestions. Weeks, Att'ys, § 81 ; California ; 
 Graver; Butler. 
 
 Or for pleading a sham plea. Pierce v. 
 Blake (1699), 2 Salk. 515, Jenk. 52; 
 Blewitt v. Marsden (1808), 10 East, 237; 
 Merrington v. Becket (1823), 2 Barn. 4 
 Cress 81 (9 E. C. L. R.) ; Fortescue v. 
 Holt (1670), 1 Vent. 213, Weeks Att'ys, 
 §81. 
 
 And judgment may be signed for. Lowry; 
 Larson, sub, 103. 
 
 Sham and false pleading. Graver; Borden; 
 Moffat ; 1 Bailey, Jurisdic. 161. 
 
 106. BUTLER v. F. (1874), 2 Colo. 295. 
 Attorneys liable for getting orders on 
 groundless suggestions. See Attorneys; 
 Brown ; Graver. See Rensberger : Colo. 
 
 107. PAIN, EX PARTE (B. v. Pain) 
 (1826), 5 Barn. & Cress. 251 (11 E. C. 
 L. R.), 7 Dowl. & Ry. 674, 15 Rul. Cas. 
 208, 29 R. R. 231, 8 Mews' E. C. L. 615. 
 
 Cited, pp. 9, 10 ; §§ 5, 56, Hughes' Proc. 
 
 Cited, §§ 91, 253, 278, Gr. & Rud. 
 
 Two affirmatives do not make a good issue. 
 And. Steph. PI. 234. Nor two negatives. 
 Id. PI. 235. See Posito. 
 
 Pleadings ought to be true. See Tede Dolus. 
 
 Alternative pleadings are void. Pain ; R. v. 
 Sadler (1787), 2 Chit. 579, 18 E. C. L. R., 
 Sto. PI. 245, 245a, 253a, 254, 510; And. 
 Steph. PI. 204 (Tyl. ed. 339) ; Cruik- 
 shank ; Dovaston : cases ; Barnard : 108 ; 
 Home, sub : Chesterfield ; Bell v. Brown ; 
 S. v. Leonard (1902), 171 Mo. 622, 94 
 Am. St. 794. Allegans contraria non est 
 audiendus. Sto. PI. 254. 1 Bish. Crim. 
 Proc. 508 ; And. Steph. PI. 233. See Res 
 Adjudicata; T. R. R., 71 111. 174 (one is 
 bound by his ad damnum as to amount 
 of damages). 
 
 Pleadings must not be insensible or repug- 
 nant. Sto. PI. 254. And. Steph. PI. 229: 
 cases, Phillips, PI. 133 ; Maxw. PI. 9, 10, 
 16 ; 1 Bish. Crim. Proc. 508-510 ; Whart. 
 Cr. PI. & Pr. 161, 162: cases; Clark, 
 Crim. Proc. 72, 73 ; 11 Mews' E. C. L. 
 831 ; 65 L. R. A. 790, 60 id. 601. 
 
 If in an ejectment suit one were to 
 aver the defendant was in possession of 
 the land, and then that the defendant was 
 in possession of a part, this would be an 
 
DATUM POSTS. 
 
 61 
 
 Leading Gases. — 107. Pain. 
 
 ambiguous or repugnant pleading, 145 
 Calif. 606, 68 L. R. A. 600. 
 
 Disjunctive, alternative and ambiguous af- 
 fidavit for attachment will vitiate the pro- 
 ceedings and subject them to collateral 
 attack. Brake, Attach. 101, 101a (able 
 statement of rule). See Attachment. 
 Prom attachments proceedings can be seen 
 how the mandatory retord must be suffi- 
 cient to protect from collateral attack. 
 Galpin : 63 ; Fennoyer : 58. And also to 
 impart constructive notice. A seizure 
 of "Black acre" or "White acre," these 
 being distinct tracts, is palpably insuffi- 
 cient for constructive notice purposes, or 
 any of the other conserving principles 
 of procedure as elsewhere explained. 
 
 Degree of certainty required. Sto. PI. 240- 
 256 ; And. Steph. PI. : 5, 231, 232 ; Phil- 
 lips, PI. 126-136. See Res Adjudicata; 
 Former Jeopardy ; Russell : 27 ; Con- 
 structive Notice ; Collateral Attack ; 
 Appellate Procedure ; Campbell v. Por- 
 ter : 2 ; Custodia legis; Freeman : 287 ; 
 Due Process of Law, - Murray: 219. 
 
 Alternative averments ; Certum est quod cer- 
 ium reddi potest. 6 Encyc. PI. & Pr. 268. 
 
 Pleadings must not be argumentative. And. 
 Steph. PI. 233 ; 1 Bish. Crim. Proc. 508 ; 
 Dickson : 34 : cases (denials ; inconsistent 
 defenses). 
 
 Rules of res adjudicata exclude argumenta- 
 tive pleadings. From that viewpoint they 
 are objectionable. A pleading that will 
 not properly serve the conserving prin- 
 ciples of procedure and its dominating 
 ends, is faulty, and hence the importance 
 of the last rule, and also the next, viz. : 
 
 Pleadings must not be by way of recital, but 
 must be positive in their form. And. 
 Steph. PI. 237 ; Green (code) : 90 ; Ke- 
 waunee (code) : 29 (cannot be "fish, flesh, 
 or fowl"). Smith v. Hodson : 156 (elec- 
 tion of remedies). See Res adjudicata. 
 
 The importance of the issue may be 
 gathered from Munday : cases ; Dickson : 
 cases ; Res adjudicata ; cases. 
 
 A pleading which is bad in part is bad alto- 
 gether. And. Steph. PI. 243 ; Rison : 253 : 
 cases. Denials must be certain. Dickson : 
 cases. Pleadings must be true. Graver : 
 cases. Every presumption is against a 
 pleader. Dovaston : 217 : cases. Pleadings 
 must not be ambiguous, doubtful in mean- 
 ing, and when two different meanings pre- 
 sent themselves, that construction shall be 
 adopted which is most unfavorable to the 
 party pleading. Dovaston ; And. Steph. 
 PI. 230 : Contra cases (effect of omitted 
 allegations after verdict) ; Maxw. PI. 16 
 (approves Dovaston) ; Moore v. C. ; Lea ; 
 30. Kewaunee (code pleadings cannot be 
 "fish, flesh or fowl"). Maxw. PI. 10, 11, 
 16; Gibson v. Parlin (1882), 13 Neb. 292, 
 (code) : Home, sub. Chesterfield. 
 
 A pleader states his case at his peril. Cruik- 
 shank: 232. Mallinckrodt ; J'Anson: 91; 
 Verba fortius, etc. The certainty of Pain, 
 prevades all procedure and taxation — the 
 inferior and statutory tribunal as well. 
 
 Leading Oases. — 107. Pain. 
 
 Walker : 118 ; White : 130. One cannot 
 practice law on the court's intelligence, 
 or that of the adverse party. He must 
 allege and state positively. Cruikshank ; 
 Huntsman : 231, 232 ; Rushton : cases ; 
 Rideout. 
 
 Ignorantia legis neminem excusat is strictly 
 applied to a pleader. Dovaston : 217. He 
 must confer upon the court jurisdiction 
 by his pleadings. Phillips, PI. 29, 181, 
 461-470, Drake, Attach. 83-113. 
 
 Repugnant allegations in attachment 
 affidavit and statement of cause of action 
 fatal ; they will not impart constructive 
 notice. Simmons; 107 Am. St. 890-898. 
 Caption and statement must agree. 
 Leonard, — N. Y. — See Jackson v. Ashton. 
 A charge that one let certain "gaming 
 table or bank" is bad, though the words 
 "to-wit a pool table" follow. Taylor v. S. 
 — Tex.—, 95 S. W. 
 
 He must make his foundations sufficient . 
 before he builds, or his edifice may truly 
 be likened to the "house built upon the 
 sand." Res adjudicata, constructive no- 
 tice, appellate procedure, collateral attack, 
 due process of law and other high policies 
 in .the final, searching sweeps, and im- 
 perious requirements, can only be stayed 
 or satisfied by substance, certainty and 
 sufficiency. Debile. From these view- 
 points arises the demands for certainty, 
 and by those requirements it must be 
 tested. Discussions that omit these ends 
 and purposes — those high policies — are 
 not most instructive, if they are not con- 
 fusing and misleading. See Identifica- 
 tion ; J'Anson : 91. 
 
 Indictment; duplicity; foundation of a judg- 
 ment must be certain. Miller v. S. (1885), 
 16 Tex. Ct. Ap. 417, 5 Am. Cr. R. 94. 
 
 108. BABNABD v. CTTSHINO (1842), 4 
 Met. 230, 38 Am. Dec. 364, 1 Danl. Nego. 
 Inst. 151, 159, Jones, Construe. Conts., 
 210. Cited, §§ 129, 149, Hughes' Conts. ; 
 §§ 112, 186, 186a, 224, 227, 233, 250, 
 256, 297, 302, Hughes' Proc. 
 
 Barnard stated: Construction; repugnant 
 clauses. A note with a clause indorsed 
 thereon, that the holder shall never sue 
 upon it, is a repugnancy which vitiates 
 the note. There can be no right without 
 a remedy, and parties may contract the 
 remedy away. Barnard ; Modus et con- 
 ventio; Greenh. Pub. Pol. 469. 
 
 All within the four corners of any document 
 will be sought and the true meaning found. 
 Barnard; Tuckerman v. Hartwell (1824), 
 3 Greenlf. 147, 14 Am. Dec. 225, n. (all 
 within the four corners considered) ; Citi- 
 zens' Nat. Bank, 126 Pa. 194, 4 L. R. A. 
 190, n. ; Wright, 73 Mich. 493, 3 L. R. 
 A. 50, n. ; Ex antecedentibus, etc . ; Boy- 
 dell ; Behling v. Ins. Co., sub, Verba in- 
 tentione, etc. 
 
 Repugnant clauses in a contract, which shall 
 prevail. Wisconsin Marine, 95 Wis. Ill, 
 60 Am. St. 86-96, ext. n. The first clause 
 of a deed will prevail. 2 Cool. Bl. 381, 
 n., Bro. Max. 581. Contra in wills. 2 
 Cool. Bl. 380, n., Bro. Max. 583. 
 
62 
 
 DATUM POSTS. 
 
 Leading Cases. — 108. Barnard. 
 
 Courts are bound by the contracts parties 
 have made. Eoare v. Rennie (1859), 5 
 H. & N. 19, 2 Sm. L. C. 39, 51 (8th ed.) ; 
 Norrington ; 1 Beach Conts. 122 ; Cutter ; 
 Expressio unius, etc., Bro. Max. 690. 
 
 Repugnant clauses are void. 1 Beach, Conts. 
 718, 2 Bl. Com. 379 ; Verba fortius, etc., 
 Bro. Max. 581 ; Wilkins. 
 
 Pleadings; repugnancy is fatal in. Pain. 
 
 An estoppel against an estoppel sets the mat- 
 ter free, is a first rule of res adjudicata. 
 
 A reservation in a deed as broad as the 
 grant, is void. Bro. Max. 627, 2 Dev. 
 Deeds, 979. "Neither will the law permit 
 a person who enters into a binding con- 
 tract to say, by a subsequent clause, 
 that he will not be liable to be sued for 
 a breach of it." Bro. Max. 697 ; Kelsall 
 v. Tyler, 11 Bxch. 534. If a policy so 
 provides, all payments are forfeited if all 
 subsequent payments are not made 
 promptly. Sub, Verba intentione, etc. 
 
 109. S. V. CONELING (1894), 54 Kan. 
 108, 45 Am. St. 270-274, n. : cases. 
 
 Dead issues will not be reviewed for error. 
 California ; S. v. Baughman : 268. 
 
 110. P. v. HcCUMBEB (1858), 18 N. Y. 
 315, 27 Barb. 632, 15 How. Prac. 186, 
 72 Am. Dec. 515-526. ext. n. 
 
 Cited, §§ 93, 251, Hughes' Proc. 
 
 Sham pleadings; definition and practice re- 
 lating to. P. v. McCumber ; 96 Minn. 422, 
 113 Am. St. 630-653, ext. n. See Sham; 
 Bliss, PI. 422. 
 
 Sham and false pleadings give no standing 
 resting thereon. McCumber : 110 ; Bliss, 
 PI. 422 ; Graver. See Morality ; Bona 
 fides; Mala fides; Fabula, etc. They con- 
 fer no jurisdiction upon a court. McCum- 
 ber ; Bliss, PI. 422 ; Wonderly : 102 : cases. 
 False and sham pleadings give no right 
 to trial. McCumber ; Bliss, PI. 422 ; Gra- 
 ver; Fabula. 
 
 Falsity of pleadings may be shown by affi- 
 davit. Patrick, 14 Colo. 20 Am. St. 253, 
 n. ; 1 Chit. PI. 567 ; Riehley v. Proone, 
 sub, Lowry ; Bliss, PI. 422 ; Kay, 44 N. Y. 
 565 ; Gostorfs, 18 Cal. 385 ; stated, Bliss, 
 PI. 422, 3d ed. 
 
 Motion and demurrer; functions of each. 
 Bliss, 420, 424 ; Travelers' Ins., 6 Colo. 
 Ap. 19*0. 
 
 Sham, evasive, frivolous answer, made 
 up of legal conclusions, may be stricken, 
 on motion. Crane ; Bliss, PI. 422 ; J' An- 
 son : 91. 
 
 Motion to strike, not debatable. Cottrill, 40 
 Wis. 555, 559; Bliss, PI. 424. 
 
 Objections by motions and by special demur- 
 rer must be specific, positively defined, 
 marked out. Sto. PI. 457 ; Kraner ; Bliss, 
 PI. 420, 424 ; J'Anson. See Abatement. 
 
 Sham, false, scandalous, irrelevant pleadings 
 {surplusage) stricken on motion. Sto. PI. 
 267-270, n. ; Cryps. 
 
 111. STURGES v. BURTON (1858), 8 
 Ohio St. 215, 72 Am. Dec. 582-590, n., 
 Bliss, PI. 119. Cited, §§ 5, 22, 214, 251, 
 Hughes' Proc. ; § 142, Gr. & Rud. 
 
 Prolixity shall be avoided; pleadings shall 
 be in ordinary and concise language wilh- 
 
 Leading Cases. — 111. Sturges. 
 
 out unnecessary repetition. __ Sturges ; 
 Green ; Dovaston ; Cryps. 
 
 Performance of conditions ; averring of. Un- 
 der codes those are permitted in a general 
 way. See Conclusions of Law. 
 
 Jurisdiction of inferior courts, averred how. 
 Crepps ; Pierstoff v. Jorges (1893), 86 
 Wis. 128, 39 Am. St. 881 (code provision 
 to avoid prolixity^ ; Bliss, PI. 303 ; Young 
 52 Cal. 407 (duly rendered is not the 
 equivalent of duly made or given) ; Stiles 
 12 Wend. 473, 27 Am. Dec. 142-150, ext. 
 n. (code rule, conclusions of law) ; Crepps. 
 
 Causing useless costs; these should be taxed 
 to party at fault. See Costs. A cause of 
 action cannot be repeated in various 
 forms. Sturges ; Bliss, PI. 423, 5 Bncyc. 
 PI. & Pr. 322. See Whitney: 112; And. 
 Steph. PI., §§ 102, 153. In the Whitney 
 an exception is found, and the only de- 
 fensible one. If cause is once fully stated, 
 it need not be repeated. Sturges ; Leon- 
 ard, 20 Colo. 88 ; Spalding, 18 Colo. 86 ; 
 4 Encyc. PI. & Pr. 623 ; 5 id. 303-341. 
 
 Exceptions are found in California, Iowa, In- 
 diana and Kansas, with conflicting cases 
 in Colorado. Leonard, 20 Colo. 88. The 
 needless repetition of a cause of action 
 was regretted. Rapelye, 3 Conn. 438, 8 
 Am. Dec. 199. And, on the other hand, 
 uncertain brevity is to be avoided. Gard- 
 ner ; Edwards, — Kans. — 1 L. R. A. N. S. 
 1050 (liberal rule for generality). 
 
 Pleadings showing a cause is barred by the 
 statute of limitations may be demurred to. 
 Sturges; Damon, 17 Wash. 573, 61 Am. 
 St. 927 ; Zuellig, 60 Ohio St. 27, 71 Am. 
 St. 707, u. But it must be expressly men- 
 tioned in a demurrer ; the objection must 
 be expressed. Bliss, PI. 200. One state- 
 ment is sufficient for all remedy arising 
 therefrom, whether legal or equitable, and 
 the different kinds of relief may be prayed 
 from one statement, and in all cases where 
 the causes of action may be joined. See 
 . Code. Cessante ratione legis, etc. What- 
 ever objection arises from a statement 
 made may be objected to from such state- 
 ment i. e., if a ground of abatement ap- 
 pears, it may be demurred to ; a plea 
 further setting out the matter is unneces- 
 sary. See Abatement. 
 
 Common counts permissible under code. 
 Meagher, 3 Kan. 372, 87 Am. Dec. 476, 
 n. ; Cryps : cases. 
 
 112. WHITNEY V. CHICAGO & N. W. 
 R. R. (1870), 27 Wis. 327. Pom. Rem. 
 576, Steph. PI. 323 (Tyl. ed.) ; 5 Encyc. 
 PI. & Pr. 322. §§215, 324, Hughes' Proc. 
 
 Repetition of a statement or claim or of de~ 
 fense is forbidden. But this rule has an 
 exception where the facts are unknown 
 to the pleader or He more peculiarly with- 
 in the knowledge of the defendant. Cryps. 
 
 Whitney stated: W. shipped wool to Chicago, 
 where it was destroyed by Are, either in 
 the cars or in a warehouse where it was 
 stored. Exact knowledge of its destruction 
 was unknown to the pleader, who, there- 
 fore, pleaded the ■ loss in four counts, in 
 order to charge the railroad both as a 
 
DATUM POSTS. 
 
 63 
 
 Leading Cases. — 112. Whitney. 
 
 carrier and also as a warehouseman. The 
 railroad filed an affidavit showing each 
 count was for the same subject-matter, 
 and therefore moved to compel W. to elect 
 which count he would proceed on. This 
 practice to compel an election was estab- 
 lished, but in such a case it was denied, 
 for the reason that the pleader did not 
 know nor could be charged with knowl- 
 edge of just how and when the wool was 
 destroyed. In such cases, causes of action 
 may be variously stated to meet various 
 phases of evidence. 
 Statements of claims and defense must be 
 single, in ordinary and concise language 
 and ivitliout unnecessary repetition, is the 
 usual rule. Sturges ; Cryps ; Pom. "576 ; 
 
 5 Bncyc. PI. & Pr. 323. Duplicity forbid- 
 den. Robinson : 45 ; 5 Encyc. PI. & Pr. 
 302-338. 
 
 A common carrier is an insurer against all 
 loss or damage to goods in his possession 
 as such, except such loss or damage there- 
 to as may be occasioned by the act of 
 God or of the public enemy, or the ship- 
 per's oum fault. 
 
 False and sham pleadings forbidden. Graver. 
 
 113. CBEPPS V. BURDEN (1777), 
 Cowp. 640, 1 Smith : 1079-1156, ext. n., 
 (reviewing English cases) ; 100 Mo. 321; 
 Van Fleet, Coll. Att. §§ 84, 805, 867 ; 
 Beach, Pub. Corp. 529 ; 1 Dill. 343 ; Cool. 
 Torts, 489 ; Bro. Max. 25 ; 4 El. & Bl. 
 422, 82 E. C. L. R. ; Shear. Neg. 159 ; 
 Harvey : 123. S. P., Galpin : 63 ; Piper : 
 114 ; Clarke v. May ; Calder ; Chase v. 
 Hathaway ," Omnia prcesumuntur, etc. ; 
 Los Angeles, 118 Cal. 295, 62 Am. St. 234, 
 n. ; French v. Miller. 
 
 Cited, pp. 6, 15, 16. §§ 6, 7, 9, 12, 13, 23, 
 26, 27, 29, 70, 85, 110-112, 122, 170, 
 186, 190, 239, 243, Hughes' Proc. 
 
 Cited, §§ 61, 104, 108, 202, 231, 296, Gr. 
 
 6 Rud. 
 
 Crepps stated: Crepps, a baker, was con- 
 victed in four consecutive actions before 
 Durden, a justice of the peace, for selling 
 small, hot loaves of bread on a certain 
 Sunday. Upon these respective convictions 
 four executions issued and were served by 
 a constable. Crepps sued the justice and 
 the constable in trespass and succeeded 
 in three of the cases, upon the ground 
 that one can violate the Sabbath only once 
 on the same day under a statute forbid- 
 ding such labor on that day. A baker is 
 not liable for each bun he bakes, nor a 
 tailor for each stitch he takes on that day. 
 Durden was guilty of an excess of juris- 
 diction, for which he was liable. Crepps 
 may be cited to the point that there is no 
 Sunday law without a statute, and also 
 that such statutes are in derogation of 
 the common law and are therefore strictly 
 construed. See Sunday. 
 
 Defenses not pleaded are waived. 
 Crepps ; Cromwell. 
 
 The constable acted under regular pro- 
 cess and this afforded him immunity. 
 Therefore he was not liable. Savacool : 
 164. 
 
 Under the statute 7 James I., ch. 5, Jus- 
 tices were permitted to plead the general 
 
 Leading Cases. — 113. Crepps. 
 
 issue and give the special matter in evi- 
 dence. This rule is adopted by many of 
 the codes. These gather and reaffirm old 
 and pre-existing rules and statutes. 
 Sturges. 
 
 It was insisted in Crepps that each rec- 
 ord of conviction was regular upon its 
 face, and therefore each was presumed 
 rightful, regular and valid (.Omnia pr&- 
 sumuntur rite et solemnitur esse acta), 
 but this view was rejected. This is a 
 very important rule in questions of con- 
 structive notice and collateral attack. 
 Walker : 118. See Courts. 
 
 Excess of jurisdiction. Crepps ; Piper. 
 
 Statutory tribunals, like boards of 
 county commissioners, must make and 
 keep a record. P. ex rel. V. Brown. (Colo.) ; 
 Montgomery ; Piper. 
 
 Affirmatively appearing, means that the jur- 
 isdictional facts shall appear upon the 
 grand (the essential) judgment-docket or 
 record. §§ 27o-30, Hughes' Conts. That 
 is, when summons issued, to whom it was 
 given and the return of the officer, and 
 the nature of the cause of action. Bates : 
 225. Such are jurisdictional facts, and 
 these must be set forth and affirmatively 
 and positively appear upon the face of the 
 record and above the judgment. Kempe : 
 115, or in their proper place, William- 
 son : 65. 
 
 Transcripts of justice's judgments must, 
 upon their face, be sufficient when re- 
 moved into other courts for further pro- 
 ceedings. Carr, 39 Mo. 346, 90 Am. Dec. 
 470 ; Wooters, 137 III. 113 ; Walker ; 
 Debile, etc. 
 
 Jurisdictional facts must affirmatively ap- 
 pear. Lowe, 15 Cal. 206 : cases. Gener- 
 ally, these are the issuance of summons, 
 its return, and a description of the sub- 
 ject-matter and the facts showing the 
 hearing and the judgment. Morrow, 4 
 Iowa 77 : cited, Brown, Jurisdic. 206 : 
 cases. 
 
 Conclusions of law will never do for facts, 
 as that process "was duly served." Brown, 
 Jurisdic. 206, 22, 47a; Howard: 166. 
 
 Collateral attack is confined to the face of 
 the judgment record of the inferior court ; 
 while of the superior court it includes not 
 only the judgment but its foundations. 
 Clem. Facts must affirmatively appear to 
 sustain the judgment of a superior court, 
 but they need not appear upon the face 
 of the judgment record ; it is sufficient 
 if they appear from the files. Whether 
 or not the statement of a claim is suffi- 
 cient must be determined from the plead- 
 ing filed to present it. Rushton. A su- 
 perior court must have authority to pro- 
 ceed, but this authority need not affirma- 
 tively appear from the face of its judg- 
 ment record. Here are important deduc- 
 tions to be remembered. 
 
 "Superior courts are presumed to act by 
 right (1 Bish. Crim. Proc. 236, 722, 1350, 
 1356) and not by wrong, and their acts 
 and judgments are consequently con- 
 clusive in themselves, unless plainly be- 
 
64 
 
 DATUM POSTS. 
 
 Leading Cases. — 113. Crepps. 
 
 yond the jurisdiction of the tribunals 
 whence they emanate." Notes, Crepps, 1 
 Smith, Lead. Cas. ; Freem. Judg. 24. 
 
 But the jurisdiction of limited and in- 
 ferior tribunals cannot be presumed and 
 must be shown affirmatively to confer 
 validity upon their acts. Hence, when the 
 facts necessary to give to such a tribunal 
 jurisdiction do not appear on the face of 
 the proceedings, and are not proved al- 
 iunde (where this is permitted), the 
 whole will be void and will be set aside 
 as a nullity when called in question in 
 the course of any collateral controversy. 
 Notes, Crepps, 1 Smith, Lead. Cas. 
 
 Superior and inferior courts. Galpin : 
 64 ; Church, Habeas Corpus ; 2 Bncyc. PI. 
 & Pr. 448-456. 
 
 Presumptions are sometimes made to 
 uphold a justice's judgment, as where he 
 grants an adjournment without the con- 
 ditions precedent — an oath or consent — 
 appearing from the record. Still these will 
 be presumed where the record is silent as 
 to them. Baizer, 28 Wis. 268 (most lib- 
 eral rule) ; Heck, 75 Tex. 469, 16 Am. 
 St. 915, n. (liberal rule) ; Munday. 
 Whenever presumptions are made in favor 
 of inferior tribunals to uphold them, there 
 the distinctions between them and superior 
 courts are practically obliterated. See 
 Hannah : 128 : cases ; 117 Mo. 117 : cases ; 
 Hahn. And this is the condition in sev- 
 eral states. The following cases should 
 be well considered. 
 114. PIPES v. PEABSON (1854), 68 
 Mass. (2 Gray) 120, 61 Am. Dec. 438- 
 443, n., 2 Lead. C. C. (B. & H.) 304-308, 
 n., 2 Smith, Torts, 635 : cases ; Pattee, 
 Cas. Torts, 131 ; Mech., Pub. Off. ; Mech. 
 Ag. ; Cool. Jaggard, Bish., Kinkead (states 
 classified). Torts; 1 Bish. C. L. 460; 
 Shear Neg. 159 ; Brown, Jurisdic. 47a 
 Cited, §§ 8, 9, 13, 27, 29, 110, 186, 190, 
 203; §§ 202, 231, Gr. & Rud. 
 Piper stated : Action of tort by Piper against 
 Pearson, a justice of the peace of the 
 county of Middlesex, and having jurisdic- 
 tion of crimes committed in that county, 
 except in the city of Lowell, wherein the 
 jurisdiction of crime committed therein 
 was exclusively vested in the police court 
 of that city. Notwithstanding, Pearson 
 assumed jurisdiction of a crime committed 
 in Lowell, and to subpcena witnesses and 
 to compel them to testify, among whom 
 Piper was one. He refused to testify, 
 and Pearson issued a mittimus commit- 
 ting him to Jail. For this imprisonment 
 he sued. To this Pearson answered that 
 the imprisonment was in the due course 
 of law, for a contempt of court. Under 
 this general plea plaintiff gave in evi- 
 dence : A complaint made by the defend- 
 ant charging John Russ with an unlawful 
 sale of liquors in Lowell, and a warrant 
 issued thereon for the arrest of Russ, a 
 mittimus issued by the defendant for the 
 commitment of the plaintiff to prison for 
 refusing to testify on the trial of said 
 complainant before the defendant at 
 Lowell, concerning sales of intoxicating 
 
 Leading Cases. — 114. Piper. 
 
 liquors made by Russ and known to the 
 witness ; and a subsequent acquittal of 
 Russ by the defendant. 
 
 B. F. Butler, for Pearson, insisted that 
 presumptions of regularity attended the 
 proceeding, and that defendant was en- 
 titled to immunity as a judicial officer. 
 Nevertheless he was convicted. 
 
 The court held Pearson was guilty of 
 excess of jurisdiction, for which he was 
 liable. "If a magistrate acts beyond the 
 limits of his jurisdiction, his proceedings 
 are deemed to be coram non judice and 
 void ; and if he attempts to enforce any 
 process founded on any judgment, sentence 
 or conviction in such case, he thereby be- 
 comes a trespasser. 1 Chit. PI. 210, 19 
 Johns. 39." 
 
 The court further observed: The de- 
 fendant was guilty of usurpation — was sit- 
 ting without authority — jurisdiction — and 
 that no contempt could be committed be- 
 fore him while acting out of the law. The 
 power to punish for contempt is an inci- 
 dental power, which can arise only when 
 there is an obstruction of the due ad- 
 ministration of justice. Pearson was not 
 proceeding with that, and therefore no 
 contempt was committed before him. 
 "But in the next place, it was for the 
 defendant to show a complete justifica- 
 tion for the alleged trespass. If the 
 record left it doubtful whether he had 
 jurisdiction of the offense, it would not 
 avail as a defense to the action. There 
 is a marked distinction in this respect 
 between courts of general jurisdiction and 
 inferior tribunals having only a special 
 or limited jurisdiction. In the former 
 case, the presumption of law- is that they 
 had jurisdiction, until the contrary is 
 shown ; but with regard to inferior courts 
 and magistrates, it is for them, when 
 claiming any right or exemption under 
 their proceedings, to show affirmatively 
 that they acted within the limits of their 
 jurisdiction. Peacock v. Bell, 1 Saund. 
 75 and notes. Mills v. Martin, 19 Johns. 
 33, 34. The record in the present case 
 prima facie shows a want of jurisdiction 
 in the defendant. Exceptions' overruled." 
 68 Mass. (2 Gray) 124. 
 
 Clarice v. May (1864), 2 Gray (Mass.) 410, 
 61 Am. Dec. 470 ; Cool. Torts ; Kinkead, 
 Torts, 189. (Liability of judicial officers 
 for excess of jurisdiction.) 
 
 Marshalsea Case (1613), 10 Coke, 68, 25 Am. 
 Rep. 694, Cool. Torts ; 1 Kinkead, Torts, 
 184 (English judges, when they act wholly 
 without jurisdiction, have no privilege). 
 
 Houlden v. Smith (1850), 14 Adol. & El. 
 fN. S.) 841 (68 B. C. L. R.), 14 Q. B. 
 841, 2 Smith, Cas. Torts, 639 : cases ; 4 
 Mews' B. C. L. 873 ; 2 Smith. Lead. Cas. 
 1030, 9th ed. Notes : Busteed v. Parsons, 
 25 Am. Rep. 688 ; Cool., Kinkead, Bish., 
 Moak, TJnderh. Torts ; Mech. Ag. 583, 
 stating rules ; New. Def., p. 426 ; 1 Wat. 
 Tres. 60 ; Bro. Max. 86 ; Whart., Shear. 
 Neg. ; 27 L. R. A. 92. 
 
 Superior judges are liable for acts done «n- 
 der their command, out of their jwrtsdic- 
 tion, when not misinformed as to the facts 
 
DATUM POSTS. 
 
 65 
 
 Leading Oases. — 114. Piper. 
 
 conferring jurisdiction. Calder ; Lange : 
 159 : cases ; Stewart v. Cooley, sub, Lange. 
 When a magistrate has no jurisdiction, 
 all who advise or act with him, or who 
 execute his process knowing the facts, are 
 liable. Houlden ; Von Kettler, 57 111. 109, 
 1 Wat. Tres. 539 : cases ; Moak, Underh. 
 Torts, 190; Barker (liability of attorneys 
 on principle). 
 
 The mayor of a town is liable for ar- 
 rest without a complaint or warrant, and 
 although he is a conservator of the peace. 
 Tillman, sub, Lange : cases, 46 L. It. A. 
 n. (liability of Judicial officers). 
 
 Calder v. Halket (1839), 3 Moore P. C. 
 (Eng.) 28, 2 Lead. Crim. Cas. (B. & H.) 
 308-332, ext. n., Smith, Cas. Torts, 642 ; 
 note, Busteed, 25 Am. Rep. 794, 2 Sm. 
 Lead. Cas. 1030, 9th ed., 7 Mews' B. C. 
 L., 2 Bailey, Jurisdic. 896-910, Mech., 
 Throop, Pub. Off. ; Mech. Ag. 587 ; Bro. 
 Max. 86 ; Shear. Neg. 158 ; Kinkead, 
 Torts, 184, 27 L. R. A. 92. 
 
 Ignorantia facti excusat. Where a judge is 
 misled as to facts conferring jurisdiction, 
 he is not liable. Calder, Moak, Underh. 
 Torts, 194; Shear. Neg. 158. 
 
 A judicial officer acting bona fide, but de- 
 ceived by appearances and the facts which 
 apparently give jurisdiction, is not liable 
 for his acts founded thereon. Calder: 2 
 Add. Torts, 886 ; 2 Sm. Lead. Cas. 1036, 
 9th ed. ; Thompson, 93 Iowa, 386, 27 L. 
 R. A. (large immunity given when they 
 act bona fide). 
 
 "Affirmatively appearing" means expressly 
 set forth and speaking upon and from the 
 face of the record and within its four 
 corners. Bro. Max. 95. Such records are 
 not aided by the flies, as are judgments in 
 superior courts of record. In superior 
 courts, various documents may show the 
 court's authority to proceed and enter 
 judgment, but in an inferior court the au- 
 thority must affirmatively appear upon 
 the record, and generally above the judg- 
 ment or order. This requirement should 
 be well understood. Nixon : 127. 
 
 In Piper the complaint, warrant, mitti- 
 mus and judgment were all introduced, 
 and, too, by the plaintiff. 
 
 Generally it is sufficient to aver the arrest 
 or imprisonment, for the law will not pre- 
 sume one is beaten or imprisoned for a 
 crime before it is shown. Innocence is 
 presumed. Fraud and wrongdoing are 
 presumed against. De non apparentibus. 
 Accordingly, Pearson might have been 
 left to plead his authority, under the rule 
 that an authority — justification — must be 
 pleaded. Hopper ; J'Anson. It is for 
 pleading a defense that the record is 
 required, among other things. Savacool. 
 Pearson admitted the wrongs, but justified. 
 The burden of proof then devolved upon 
 him. Actore non probante reus absolvitur : 
 Dickson. Pleadings are to limit issues 
 and to narrow proofs. Kollock. Pre- 
 sumptions may be relied upon. C. v. 
 Kane ; Bonnell : 183, 185. 
 
 Leading Cases. — 114. Piper. 
 
 See further observations, Hughes' Proc. 
 Also the maxim Omnia prwsumuntur rite. 
 
 115. KEMFE'S LESSEE V. KENNEDY' 
 
 (1809) (Marshall), 5 Cranch (U. S.)„ 
 173 (3 L. ed. 70), Brown, Jurisdic: 
 stated in Ransom: 122. Cited, §§ 8, 9,. 
 13, 23, 113, 186a, 188, 190, 243, Hughes' 
 Proc. 
 
 Superior and inferior courts ; proceed- 
 ings coram non judice and merely er- 
 roneous that must be reversed on error. 
 Cooper v. Reynolds ; Campbell v. Porter. 
 Judgments without records are disre- 
 garded. § 27a, Hughes' Conts. See Col- 
 lateral Attack ; Debile fundamentum 
 fallit opus. Presumptions from judgments. 
 Ferguson : 264 ; Cooper ; Starbuck : 263 ; 
 S. v. Superior Court (1898), 19 Wash. 
 128, 67 Am. St. 724; Hannah: 128. 
 
 The presumption which the law implies 
 in the support of judgments of courts of 
 general jurisdiction arises only with re- 
 spect to the jurisdictional facts concern- 
 ing which the record is silent. Expressio 
 unius, etc. Latta, 122 Cal. 279, 68 Am. 
 St. 30. See Galpin : 63, 64. See Harrow. 
 All jurisdictional facts must appear upon the 
 face of the record in statutory and inferior 
 tribunals. Kempe and Walker cases ; 
 Bliss, 70 111. 343. Contra, Liss, 2 Colo. 
 85, 88 (subject-matter of suit may be 
 shown by evidence aliunde. See Home 
 (Colo, cases). These are also cited un- 
 der Piper). And in superior court records, 
 at least, such facts must appear in the 
 files. Sto. PI., § 10 ; And. Steph. PI. 
 (Tyl. ed.) 160-162. See Kewaunee : 29 ; 
 Woofers, 137 111. 113 (transcript from 
 justice's court must present all facts ta 
 constitute a .lien) ; Constructive Notice. 
 And a deed fails without a sufficient 
 foundation. Debile, etc. Walker : 118. 
 The issuance of the summons, its return, 
 the appearance of the parties, if any, 
 the nature of the subject-matter (Bates) 
 and the judgment of the court, all must 
 appear of record. Bliss, 70 111. 343, 
 supra; Piper ; Crepps. Contracts relating 
 to judgments, and liens of, and titles 
 founded on, often involve the examination 
 of records. See De non apparentibus/ 
 Collateral Attack ; notes, Lampleigh ; 
 Horan, 85 ; Hughes' Conts. 
 
 116. WILLIAMS v. PEYTON (1819), 4 
 Wheat. (U. S.) 77 (8 L. ed. 518). Cited, 
 Bloom : 266 ; 2 Cool. Tax. 1004 (onus of 
 proof). §22 Hughes' Proc. 
 
 Cited, §§ 23, 70, 120, 215, Hughes' Proc. 
 
 Sale of lands under a statutory power must 
 be upon a strict compliance with law. 
 Bloom ; Thatcher ; Cooper v. Reynolds ; 
 Walker : 118 ; Williamson : 65. This is. 
 in accord with a first rule of agency, i. e., 
 a special agent must act within his in- 
 structions. Batty. And also that rule of 
 pleading that an authority must be 
 pleaded and proved. J'Anson ; Six Car- 
 penters ; Tarble's. 
 
 Actor and claimant must look to, produce 
 and prove by a perfect record. Williams- 
 (rule ably stated and repeated in Ransom: 
 
C6 
 
 DATUM POSTS. 
 
 Leading Cases. — 116. Williams. 
 
 122) ; Deputron : 121. (Expressio unius, 
 etc.); Adore non; notes to Lampleigh: 
 301. 
 
 117. THATCHER V. POWEIL (1821), 
 6 Wheat. (U. S.) 119, (5 L. ed. 221), 76 
 Am. St. 800, 2 Cool. Tax. 1004 (onus of 
 proof) . 
 
 Cited, §§ 215, 324, Hughes' Proc. 
 
 Sale of lands under statutory powers must 
 
 be a strict compliance until law. Bloom ; 
 
 Williams : 116. See Cooper ; Walker ; 
 
 Mohr v. Maniere : 68. Burden of proof 
 
 is on claimant. Ransom. 
 
 118. WALKER V. TURNER (1824), 9 
 Wheat. (TJ. S.) 541, 6 Curt. Abr. 174. 
 
 Cited, §§ 12, 16, 17, 20, 23, 24, 27, 29, 
 Hughes' Proc. 
 
 Inferior statutory tribunals must make of 
 record "what ought to be of record and 
 must he proved by record." Iverslie : 46. 
 Kempe's ; Thatcher ; Williams ; William- 
 son ; Provident Life : 89. Expressio unius, 
 etc., applies to records of inferior tri- 
 bunals exactly as in Rushton ; Deputron ; 
 Dovaston. 
 
 Jurisdictional facts must affirmatively ap- 
 pear, and also definitely describe, else the 
 proceedings are coram non judice. Fabula 
 non judicium. Doctrines of. Crepps, 
 Miller, Milligan, Murray, Piper, Kempe : 
 cases ; Springer : 24 ; Story. 
 
 A sufficient record must exist to support a 
 sheriff's deed. Williams : 116 ; Windsor ; 
 Douglas (lack of name in execution 
 fatal); Munday ; Clem. 
 
 "Walker v. Turner stated. By statute, a jus- 
 tice has jurisdiction of twenty dollars, 
 
 "when the balance is due on any specialty, 
 note or agreement, for money or specific 
 articles, or for goods, wares or merchan- 
 dise sold and delivered, or work and 
 labor done." The justice's record recited 
 an amount due "as appeared by the books 
 of an intestate," whose administrator 
 was suing. Upon that record, removed 
 into a higher court, a levy and sale of 
 real estate had taken place and a deed 
 thereto had issued, and then the question 
 was raised, whether under that statute 
 the justice had jurisdiction of subject- 
 matter, and if such proceedings were not 
 coram non judice. And the court took 
 this view, observing that it was con- 
 sistent with the record (Verba fortius, 
 etc. ; Sto. PI. 665 ; Van Cleaf ) to assume 
 that the amount claimed was for rent due, 
 or for money advanced, or for money 
 received to the use of the plaintiff, and 
 even for money claimed by the plaintiff 
 as due ex debito and charged in the books 
 of the intestate. "It is obvious that the 
 magistrate had no authority to take 
 cognizance of these cases, and of others 
 which might be stated ; and since his 
 jurisdiction was strictly special and lim- 
 ited, it is essential to the validity of 
 his judgment and of the proceedings under 
 it, that the record should show that he 
 acted upon a case which the law sub- 
 mitted to his jurisdiction. Therefore all 
 the proceedings and the deed founded 
 thereon are null and void ; such are 
 not coram judice." 
 
 9 Wheat. 649 ; White v. Wagar : 130. 
 
 The foregoing facts appearing from the man- 
 datory record subjected the proceedings to 
 
 Leading Cases. — 118. Walker. 
 
 collateral attack. Jurisdiction depends on 
 the pleadings (Munday; Moore v. C), the 
 mandatory record, the thing described 
 inter alia. Jurisdiction. 
 
 Construction. Walker is sound construction 
 and is in harmony with Rushton : 5 ; Do- 
 vaston : 217; Hanford: 86; Hannah: 128, 
 and cognate cases ; these are not consist- 
 ent with the claims for liberal construc- 
 tion which have contributed so much to 
 the confusion of procedure. Correction of 
 this must come from mastery of the basic 
 rules of construction involved; for upon 
 these are all dependent. Cujus est insti- 
 tuere, etc. 
 
 Omnia prwsumuntur rite, etc., as a rule 
 depends on cases like Walker and its 
 cognates. The rule is also well stated in 
 Crepps, Piper and cognate cases. But It 
 is well to state that many cases are found 
 denying that rule. 
 
 119. VOORHEES v. BANK V. S. (1836), 
 10 Pet. (U. S.) 473 (9 L. ed. 490). Stated, 
 Cooper v. Reynolds ; Pennoyer : 58 ; Har- 
 vey: 123. 
 
 Cited, §§ 65, 303, Hughes' Proc. 
 
 One claiming an adjudication must show it. 
 Cohens ; Brown, Jurisdic. ; Horan. Pre- 
 sumptions are in favor of a record upon 
 collateral attack. Voorhees ; Cooper v. 
 Reynolds; Actore; Windsor; Omnia prw- 
 sumuntur, etc. Collateral attack and 
 voidable error — distinctions. Voorhees ; 
 Cooper ; Pennoyer ; Windsor. Error that 
 must be prosecuted by direct proceedings 
 or it is waived — condoned — is voidable 
 error. Voorhees. See Windsor. Grave 
 jurisdictional defects — usurpation — can be 
 resisted by collateral attack or in any 
 way. Notes to Lampleigh ; Borden : 266 ; 
 Pennoyer ; Quod ab initio, etc. See 
 Waiver ; Abatement ; Collatebal At- 
 tack. 
 
 120. RUNKLE v. U. S. (1887), 122 U. S. 
 543 (30 L. ed. 543). Tucker, Const 
 
 Cited, § 1, Hughes' Proc. 
 
 Necessary facts jurisdictional. Thomas 
 v. Board. 
 
 A record of condemnation must present each 
 jurisdictional fact affirmatively and with 
 certainty. A court martial is a court of 
 special and limited jurisdiction. Its au- 
 thority is statutory and must be strictly 
 pursued. The facts necessary to show its 
 jurisdiction and its sentences are con- 
 formable to law, must be stated positively 
 and not left to be argumentatively in- 
 ferred. 2 Cool. Tax. 926. There are no 
 presumptions in favor of such courts. 
 Brown, 8 Pet. 115. 
 
 121. DEPUTRON v. YOUNG (1889), 
 134 U. S. 241, 257; Kleber on Sales, 
 2 Cool. Tax. 996, 1091; Hughes' Conts. ; 
 Ransom ; Williams : 116 ; Thatcher : 117. 
 
 Cited, §S 24, 28, 29, 44, 52, 120, 215, 217, 
 
 239, Hughes' Proc. 
 What one must produce and prove who 
 
 claims upon a judicial or quasi-judicial 
 
 proceeding. Clem. 
 De non apparentibus, etc. ; Actore non pro- 
 
 bante reus absolvitur; Expressio «ni«s, 
 
 etc. ; Horan ; Munday ; Walker : 116 
 
DATUM POSTS. 
 
 67 
 
 Leading Cases. — 121. Deputron. 
 
 (deeds founded on judicial and execution 
 sales). Campbell v. Porter; Keene v. 
 Cannovan ; 2 Cool. Tax. 922-926 ; Debile 
 fundamentum fallit opus; notes, Lamp- 
 leigh : 301. See Collateral Attack. 
 
 Records; how construed. Dovaston ; notes, 
 Lampleigh ; Waters : 70. 
 
 "What ought to be of record must be proved 
 by record and by the right record." 2 
 Cool. Tax, 926 ; Iverslie : 46. A tax deed 
 is void unless under the proper seal. 2 
 Cool. Tax. 996, 1091. Void tax deed will 
 constitute color of title in adverse posses- 
 sion. 2 Cool. Tax. 996, 1091. 
 
 182. RANSOM v. WILLIAMS (1864), 2 
 Wall. (U. S.) 313. Cited, p. 6 ; §§ 3, 5a, 
 10, 23, 24, 28, 29, 52, 71, 122, 215, 
 Hughes' Proc. 
 
 Cited, §§ 89, 93, 124, 126, 128, 164, 201, 
 201a, 203, 224. 
 
 Ransom stated : Notice to ■ representatives 
 of a deceased judgment debtor essential 
 before issuing an execution. Where a 
 statute requires such notice, it is man- 
 datory. Ransom recovered a judgment 
 against Galbraith in the circuit court of 
 the United States, in 1841, who conveyed 
 -his land to Williams in 1842. He died in 
 1843, and an administrator was promptly 
 appointed. The land conveyed had been 
 sold under an execution, all of which pro- 
 ceedings had been set aside and the court 
 ordered another execution to issue, under 
 which R. derived a sheriff's deed, upon 
 which he sought to recover from W. in 
 «jectment. W. defended upon the ground 
 no notice of issuing the execution had 
 been given as the statute required. Upon 
 this the case hinged, and R. lost in all 
 the courts, and for this reason : The 
 plaintiff asserted a title, and it was for 
 him to show everything necessary to 
 maintain it. The rule on this subject is 
 thus laid down by Chief Justice Marshall : 
 "It is a general principle, that the party 
 who sets up a title must furnish the evi- 
 dence necessary to support it. If the 
 validity of a deed depends upon acts in 
 pais, the party claiming under that deed 
 is as much bound to prove the perform- 
 ance of the act as he would be bound to 
 prove any matter of record on which its 
 validity might depend. It forms a part 
 of his title ; it is a link in the chain 
 which is essential to its continuity, and 
 which is incumbent on him to preserve. 
 These facts should be examined by him 
 before he becomes a purchaser, and the 
 evidence of them should be preserved as 
 a necessary muniment of title." Williams 
 v. Peyton : 116. Thatcher ; Finch v. Mar- 
 tin (1857), 19 111. 110. An execution 
 must be shown where this is required. 
 Notes, Lampleigh ; Munday ; Windsor. 
 
 One claiming any right under a judicial 
 or gwasi-judicial proceeding, like taxation, 
 must look to and protect the means of his 
 proof. Deputron. 
 
 All interested in a title are charged with 
 constructive notice of what public records 
 show relating to that title. Purchasers 
 
 Leading Cases. — 122. Ransom. 
 
 under an execution buy caveat emptor. 
 Ransom. For their information the record 
 exists and is preserved. Officials are 
 charged with making it under severe 
 penalties, e. g., if a sheriff fails to return 
 his process, he is charged as trespasser 
 ab initio. See Six Carpenters. There is 
 a chain, and it has continuity, as is stated 
 in Marshall's rule, already quoted. This 
 rule recognizes the uses of the mandatory 
 record for constructive notice, and the 
 importance of this in the law of convey- 
 ancing — the stability and certainty of 
 titles — and as affect much that relates to 
 the law of contracts. As to that record 
 must apply Expressio unius, etc., else it 
 would better be dispensed with. 
 
 Ignorantia legis ncminem excusat strictly 
 applied to purchasers at execution and 
 ■judicial sales. An order of a superior 
 court cannot override the general law. 
 Weaver v. Toney : 67. 
 
 Ransom v. Williams may be cited to these 
 most important rules ; that wherever no- 
 tice is required in judicial proceedings, it 
 is mandatory. Audi alteram partem; 
 Weaver. That successful parties to an 
 order granting their application to quash 
 an execution and proceedings there- 
 under, and further directing that 
 an execution issue, could further appear 
 and object that they were entitled to no- 
 tice of its issuance. 
 
 A statute in contravention of the com- 
 mon law is strictly construed. (At com- 
 mon law a scire facias must issue after 
 death of a judgment debtor.) The statute 
 was liberally construed. See Indianapolis, 
 R. R. : 223. 
 
 An execution must conform to the record 
 from which it emanates. Probatis ex- 
 tremis prwsumuntur media. An execution 
 should inform all from whence it comes 
 and upon what it depends. The burden of 
 proof devolves upon the party who holds 
 the affirmative. Actore non probante reus 
 absolvitur ; Williams ; Thatcher, supra. 
 
 That to sustain ejectment, not only a 
 judgment, but its foundations — jurisdic- 
 tional facts— the record — must be intro- 
 duced, and also that notice of issuing an 
 execution was given. Clem. 
 
 The best evidence of which a case in its 
 nature is susceptible shall be produced. 
 "What ought to be of record must be 
 proved by record." Iverslie : 46 ; Galpin : 
 63 ; Runkle ; Nixon. Contra : Harvey. 
 
 Objections upon collateral attack may 
 be raised to all substantial defects that 
 are grounds of the general demurrer or 
 motion in arrest (McAllister) and to such 
 defects arising after the entry of Judg- 
 ment. See Windsor. The mandatory 
 record may be augmented by statute. 
 Ransom ; Harvey. Ransom should be 
 carefully considered with Harvey, which 
 next follows. 
 
 123. HARVEY v. TYLER (1864), 2 
 Wall. 328 (17 L. ed. 871). 
 
 Cited, p. 6; §§ 23, 24, 71, 312, Hughes' 
 Proc. 
 
68 
 
 DATUM POSTS. 
 
 Leading Cases. — 123. Harvey. 
 
 Harvey stated: This was an ejectment suit 
 in which statutes, jurisdiction, taxation, 
 proof, pleading, the mandatory record and 
 collateral attack were, involved. The im- 
 portance of the presumption of regularity 
 — Omnia prwsumuntur rite, etc. — will 
 clearly appear, and also Cujus est insti- 
 tuere. 
 The mandatory record must be sufficient for 
 constructive notice, Res adjudicata and to 
 resist objections upon collateral attack, 
 among other things. These are the usual 
 accompaniments of a judicial proceeding : 
 1. A court of competent jurisdiction (the 
 pleadings must be coram judice) ; 2. A 
 wronged party for a plaintiff ; 3. A wrong- 
 doing party for a defendant ; 4. A subject- 
 matter of consideration ; and 5. A certain 
 judgment. 2 Wall. 346. In addition to 
 those essentials, statutes may add other 
 elements (Ransom), as in this case, that 
 counsel for a defendant affected by the 
 proceedings be present. 
 Coram judice proceedings require that all 
 jurisdictional facts affirmatively appear of 
 record. The above rules are clearly ex- 
 pressed in Harvey. To support these, 
 Kempe : 115 ; Voorhees ; Thompson ; 2 
 Peters, 157, and Grignon v. Astor are 
 stated and relied upon. Rushton ; Mun- 
 day. 
 
 The requirements of an adjudication as 
 above indicated are exactly as required in 
 Rushton : 5 : cases. Besides these, the 
 reader will find a masterly statement by 
 counsel of the principle in Crepps, which 
 is shown to be the law in Virginia and 
 Kentucky (2 Wall. 335-336). 
 
 Harvey is criticised from facts gathered 
 from statutes quoted (2 Wall. 330-334), 
 which specified the conditions upon which 
 the proceedings in question might be had. 
 It does not appear that those conditions 
 appeared to the court to invest it with 
 jurisdiction of the particular subject-mat- 
 ter which is required by the court and 
 already specified. Hopper : 4. The juris- 
 dictional facts are not averred or shown or 
 enumerated. 2 Wall. 334-338. Looking 
 from the statutory requirements, there ap- 
 pears the omission of essential descriptive 
 allegations, as is required in all the cases 
 cited, and besides all those, let us add, 
 as required in Rushton Case. See also 
 Walker : 118 ; White : 130, and cases. 
 
 Besides the above, the rule laid down, 
 that a superior court exercising a statu- 
 tory power should have all presumptions' 
 in favor of the regularity of its proceed- 
 ings, is not tenable. The rule in Ransom 
 as to that is the sound one. Galpin : 64 ; 
 Runkle: 120. 
 Exceptions to instructions must be specific 
 unless the whole charge is faulty. Under 
 this rule, appellant was refused a review 
 of forty-three of his assignment of errors. 
 Montgomery: 292, cases. Objections and 
 exceptions must not be too broad, is a 
 general rule of appellate procedure. § 
 53 ; Convenience ; L. C. 290-299. 
 
 Leading Cases. — 123. Harvey. 
 
 A judgment is an entirety. See Judg- 
 ments. 
 
 The difficulties of defining the manda- 
 tory record will appear from a considera- 
 tion of Ransom and Harvey. 
 
 Courts of superior and inferior jurisdic- 
 tion defined and discussed in relation to 
 the presumption of regularity. GalDin- 
 64. * 
 
 Statutes are prospectively construed. 
 Nova constitutio futuris, etc. ; Bronson • 
 Dash. 
 
 Plaintiff's counsel evidently treated the 
 case on the theory that the statement of 
 the ground for abating the taxes was 
 fatally defective. His objections and mas- 
 terly citation of Crepps, showing this case 
 to be the rule in Virginia and Kentucky, 
 speak more plainly than general com- 
 mendation of his attainments. Before 
 Mansfield, Marshall, Kent, Story or Shaw, 
 his argument would have been appreciated, 
 and also wherever Ransom, Galpin and 
 Runkle would be consistently applied. The 
 statement being bad, general exceptions to 
 the instructions were sufficient. Shutte - 
 291. 
 
 The court referred to the necessity of 
 enforcing stare decisis and its rules of 
 court. It is regrettable it did not under- 
 stand the rule in Rushton : 5 ; Bartlett ; 
 6, and Crepps. De non apparentibus, etc. 
 Instead, the court thought something new 
 and changeful was before it ; Justice Miller 
 plainly says that, and also that the court 
 is rapidly settling the question. In Gal- 
 pin Crepps was vindicated ; Cooper v. 
 Reynolds was overruled in Windsor, and 
 the Slaughter Souse Cases have given the 
 court much trouble. 
 
 The influence of cases like Harvey has 
 been far reaching and most meretricious 
 in several states. Some of these hold that 
 what the record should show may be 
 shown by evidence aliunde, and that the 
 mandatory record may be waived. A 
 court that does not respect that record 
 brings many calamities upon jurispru- 
 dence, and vicissitudes upon its best coun- 
 sellors and friends. See Literature ; 
 Hughes on Contracts; also Procedure. 
 
 124. STOUT v. MASTIN ,(1891), 139 
 U. S. 151 (35 L. ed. 121), 2 Cool. Tax. 
 1000, 1001. 
 
 Tax deeds must be certain and conform to 
 the assessment roll. Tilton : 133 ; Keane. 
 
 Assessment roll essential and warrant de- 
 pends on it. Highlands, 24 Colo. 371 ; 1 
 Cool. Tax. 601, 962. 
 
 Certainty is essential in taxation. Stout; 
 Tilton ; Keane. And must be by the as- 
 sessor and be his bona fide act. P. v. 
 Hastings : 144. And be at the right time 
 (Drew), and with certainty. 2 Desty. Tax.. 
 §§ 115-118. 
 
 125. MOSES v. WHITE (1874), 29 
 Mich. 59, 60 ; 1 Cool. Tax. 601, 577, 926. 
 
 There is no oral or parol levy and collection 
 of taxes. Public policy provides for and 
 demands a record. Salus populi, etc. : . 
 Cool., Tax. 313, 339, 2d ed., 1 Desty, Tax.. 
 
DATUM POSTS. 
 
 69 
 
 Leading Cases. — 125. Moser. 
 
 § 114. See sub, Piper : 114 ; Rushton : 5 ; 
 Bro. Max. 4; Case: 47. 
 
 What ought to be of record must be proved 
 by record and by the right record. Wel- 
 ty, Assess. 279, 283 ; Martin, 140 U. S. 
 634 ; Walker : 116. See Dtie Process op 
 Law. 
 
 One claiming a sequestration must prove it. 
 Deputron : 121 ; Williamson : 65 ; IVers- 
 lie : 46 ; Martin ; Horan : 85. 
 
 The power to tax is the power to destroy. 
 M'Cullooh : 147 ; Collector : 148. From 
 this maxim may be seen the necessity of 
 authority, and of the record, and of its 
 essentiality to prove compliance with law, 
 and the various mandatory steps required. 
 Iverslie : 46. 
 
 126. MARX V. HAWTHORN (1893), 148 
 U. S. 172 (37 L. ed. 410), 1 Fost. Fed. 
 Prac. 97 ; 2 Cool. Tax. 1007, g.v. 
 
 Taxation should be exact. Wiebold : 98. 
 Proceedings in, must be certain. Lawrence : 
 
 132; Tilton; Btoom : 266. 
 
 Tax deeds. 3 Dev. Deeds, 1347-1424; 
 
 Keane ; Russell v. Mann ; Tilton. 
 
 127. NIXON V. RTIPLE (1862), 30 N. 
 J. Law, 58-61, 2 Cool. Tax. 1393. Brown, 
 Jurisdic. 
 
 Cited, § 98, Hughes' Proc. 
 
 "All parties are bound to take notice of the 
 day appointed by law for the meeting of 
 the commissioners of appeal in cases of 
 taxation ; but if the commissioners meet 
 at any other time than that appointed 
 by law, such meeting must be upon 
 notice, and must also be at the place 
 of holding the town meeting, in order to 
 obtain jurisdiction of the assessor, and 
 they cannot, therefore, without such no- 
 tice, alter his assessment." 1 Gr. Ev. 19. 
 
 "The tribunal of the commissioners of appeal 
 is a special tribunal, and it is well settled 
 that such tribunals should show upon the 
 face of their record all facts necessary 
 to give jurisdiction." 
 
 "What ought to be of record must be proved 
 by record." Iverslie: 46; 180 U. S. 28, 
 471, 533. 
 
 Nixon stated: The town had raised the dog 
 tax from 50 cents to $3, as it might do 
 upon a vote. (Its record did not show this 
 vote, and in a direct proceeding to test the 
 tax it would have been held void, but 
 otherwise collaterally.) Ruple was taxed 
 $3 on his dog. On his application, the 
 commissioners of appeal had set this aside, 
 but without proper notice to the assessor, 
 who must defend the validity of his as- 
 sessments under penalties. Here the tax 
 had been set aside as illegal without notice 
 to one affected thereby. (See Audi alteram 
 partem.) That such notice was given did 
 not affirmatively appear from the record, 
 and therefore it was the same as if none 
 had been given. De non apparentibus, etc. 
 Runkle; 1 Cool. Tax. 324-333 (right to 
 notice), 624-633 (right to a hearing). 
 "Here it does not appear that the commis- 
 sioners met, either at the right place, 
 or gave any notice of the time of meeting. 
 The only remaining question is, is it 
 necessary that it. should appear upon the 
 transcript? The tribunal of the commis- 
 sioners of appeal is a special tribunal, 
 
 Leading Cases. — 127. Nixon. 
 
 and it is well settled that all such tri- 
 bunals should show all Jurisdictional 
 facts upon the face of the record." Car- 
 ron v. Martin (1857), 26 N. J. L. 594, 
 69 Am. Dec. 584, n., 1 Cool. Tax. 466, 
 2 id. 1405 (liberal rule to uphold a tax). 
 Cited, Dill., Beach. Pub. Corp., Brown, 
 Jurisdic, Hanna v. Chase : cases ; Andes, 
 158 U. S. 312: cases. 
 
 It should be observed that in Nixon the 
 defense was by an officer under regular 
 process. (Savacool: 164.) This defense 
 is larger than it would be against the 
 claimant of the right — the recipient of the 
 tax. The defense of the officer is broader 
 than for others. 
 
 In Carron land had been sold under a 
 tax for widening a street ; this the coun- 
 cil might order upon the application — ■ 
 petition — of a certain number of land 
 owners. The council had power to open 
 and alter streets, and therefore jurisdic- 
 tion of subject-matter generally. But the 
 condition precedent — the application of 
 the land-owners — did not appear of rec- 
 ord. The contention was that the proceed- 
 ings were coram non judice, and as such 
 were open to collateral attack. Omnia 
 prwsumuntur rite, etc., applied. The tax 
 was sustained by a divided court to up- 
 hold the tax exactly as if it were the 
 proceedings of a superior court acting 
 according to the course of the common law. 
 Many cases emphasize the fact that the 
 proceedings are singularly distinctive 
 where the inferior and statutory tribunal 
 is involved ; when there is no difference 
 in the rules of construction they apply. 
 The only question is, does the maxim last 
 cited apply or not? See Crepps, Smith, 
 Lead. Cases. 
 
 The ratio decidendi in Carron sustains 
 the view that pleadings can be waived, 
 which is so opposed to Munday. Waiving 
 the omission of the petition was only an 
 irregularity ; it was not a fatal defect, as 
 it would have been in a superior court. 
 Rushton : cases. 
 
 In a superior court, the general demurrer 
 searches the mandatory record and at- 
 taches to the first substantial fault. Hop- 
 per ; McAllister. From this standpoint the 
 defect in Nixon should be viewed. Those 
 interested in titles to property should 
 know its quality from the records. Ran- 
 som: 122. 
 
 Collateral attach assails all records from the 
 same rationale and for the same ends and 
 purposes. The answer to objections upon 
 collateral attack should always be • the 
 same from the same condition. Vbi eadem 
 ratio ibi idem jus. 
 
 128. HANNAH v. CHASE (1894), 4 N. 
 Dak. 351, 50 Am. St. 656. n. Cited, §§ 
 78, 85, 110, 113, Hughes' Proc. ; § 19, 
 Gr. & Rud. 
 
 Hannah staled: Under a statute making it 
 the duty of a sheriff to deliver to pur- 
 chaser a deed to lands he has sold under 
 execution sale, and the sheriff delivers his 
 deed to such lands to a person other than 
 the purchaser, it will not be presumed that 
 
70 
 
 DATUM POSTS. 
 
 Leading Cases. — 128. Hannah. 
 
 such grantee had succeeded to the rights 
 of the purchaser, in the absence of proof 
 to that effect. Hannah : cases ; Whart. 
 Ev. 1318; Miller, 56 N. Y. 383 (road 
 overseers opening a road) ; Telfener, 70 
 Tex. 139 (tax title) ; Keane. 
 
 The presumptions of regularity never supply 
 a jurisdictional fact. Walker : 118 ; Piper : 
 114 ; Cruikshank ; Rice v. Travis. Con- 
 tra: Harvey: 123; Leonard, 117 Mo. 103, 
 38 Am. St. 646, n. (liberal rule) ; Nixon : 
 cases ; Hahn v. Kelley ; Omnia prwsumun- 
 tur rite, etc. Clark v. Sires. See Har- 
 row. 
 
 Proof must be certain; facts will not be pre- 
 sumed. Citizens R. R. : 186. 
 
 Omnia prwsumuniur rite, etc. See Crepps ; 
 Piper ; Cruikshank. 
 
 Instruments are in favor of jurisdiction 
 of inferior tribunals. Leonard, 117 Mo. 
 103, 38 Am. St. 646, n.. Bowman, 102 111. 
 472, Tucker, 130 Ind. 514. Hahn ; Ell. 
 App. 717. Leonard denies Nixon. 
 
 Presumptions of regularity. 2 Cool. 
 Tax. 922-926 (what ought to be of record 
 must be proved by record). 
 
 129. NELSON V. BOCXTELL (1853), 
 14 111. 375. Cited, § 129. Equity will 
 enjoin a void judgment, although one 
 might have appealed. Attempting to ap- 
 peal will not bar relief. Process must 
 be actually served in a justice's court ; 
 appearance cannot be entered by letter or 
 by attorney. The right record must be 
 made, as in case of infants. Nelson. 
 
 Statutory tribunals are strictly judged. 
 Board, etc., 9 Colo. App. 526, Brown, Ex 
 parte ; Wooters, 137 111. 113 ; Walker ; 
 Crepps : 113. 
 
 A plaintiff is charged with the perfec- 
 tion of a foundation for a judgment. 
 Walker: 118. 
 
 130. WHITE v. WAGAE (1900), 185 
 111. 195, 57 N. E. 26, 50 L. R. A. 60, 
 affg. 83 111. Ap. 592. 
 
 Cited, §§ 16, 17, 18, 19, 27, Hughes' Proc. ; 
 §§ 99, 152, Gr. & Rud. 
 
 Construction — Noscitur a sociis. Labels and 
 trade-marks are not the subject of forgery 
 at common law or by statute, and hence 
 are not forged instruments within the 
 Code, div. 8, e. 38, § 2, providing that 
 a justice of the peace may issue a search- 
 warrant for forged bond notes. 
 
 Search-warrant : Expressio unius, etc. : void 
 warrant. Under Civil Code, div. 8, c. 38, 
 § 3, providing that a search-warrant shall 
 direct the officer to bring the property and 
 the person in whose possession it is found 
 to the justice issuing the warrant, where 
 a warrant failed to direct the bringing in 
 of the person, the proceeding was illegal 
 and void, though the person appeared. 
 Quod ah initio, etc. : Sanborn ; 1 Bish. 
 Crim. Proc. 243. 
 
 Certiorari will lie to review the action of a 
 justice of the peace in Illegally issuing a 
 search-warrant, though defendant also had 
 a remedy by appeal. Search-warrants J 
 strict rules of pleading required. Se- 
 mayne's Case. 
 
 Leading Cases. — 
 
 131. F. EX BEL. ATTORNEY GEN- 
 ERAL v. BROWN (1897), 23 Colo. 425. 
 
 Conclusions of law and their denials are 
 nullities. Insurance Co., 24 (J6lo. 220, 
 221 ; S. C. 7 Colo. App. 221 ; Smelting Co. 
 23 Colo. 523 ; Robinson Mining Co. : 16 ; 
 J'Anson : 91 : cases, Watson, 9 Colo. 200 ; 
 Gale, 11 Colo. 540 ; Pueblo County ; Cf. 
 Hume ; Colo, cases. 
 
 Jurisdictional facts must affirmatively ap- 
 pear. (Overruling Liss, 2 Colo. 85.) Rec- 
 ord essential for taxation. Rustin v. Mer- 
 chant's Bk. (Colo.). 
 
 132. LAWRENCE V. FAST (1858), 20 
 III. 338, 71 Am. Dec. 274, n. ; Welty, 
 Assess. 225, 20 Colo. 384, 1 Cool. Tax. 
 845, 896, 759 (omission of dollar mark). 
 
 Cited, §§ 109, 186, 224, 243, Hughes' Proc. 
 
 Certainty essential for "due process of law" 
 in all sequestration and condemnation pro- 
 ceedings. Figures expressing a valuation, 
 thus : "2, 48," in an assessment roll, with- 
 out words or characters to indicate what 
 they stand for, whether eagles, dollars, 
 dimes, cents, or mills, is void for un- 
 certainty. Lawrence ; Tilton ; Welty, 
 Assess. 225 ; 1 Cool. Tax. 759 : cases. 
 And lands described must be as certain 
 as is required in a deed. "196, 008, 99 
 acres," in gross, without any other desig- 
 nation or description of the same, is void 
 for uncertainty. Tilton. The assessment 
 roll is the foundation of a tax and it 
 must be certain to support a warrant 
 and a tax deed. The assessor or other 
 constitutional officer (P. v. Hastings) 
 must make three things certain, namely, 
 the name of the taxpayer, if known, his 
 property and its valuation. Statutes and 
 decisions that deny the above are opposed 
 to certainty and what relates to the divi- 
 sion of state power. Those things must 
 be strictly observed for protection — the 
 public welfare. See Bro. Max. 4: cases; 
 Magna Charta; Power, 3 N. Dak. 107, 
 44 Am. St. 511-526, n. ; 21 L. R. A. 328 
 (description of property must be certain; 
 instructive case) ; Tracy, 38 Fed. 69, 13 
 Sawyer, 2 L. R. A. 733, n. (owner's name 
 essential) ; Welty, Assess. 60-79 ; Keane 
 .(a tax deed must be certain). 
 
 Judgments must be certain. Freem. Judg. 
 48 ; 1 Black, Judg. 118 ; 1 Suth. Dam. 
 467 ; 2 Best, Ev. ; Runkle T. V. S. ; 2 
 Cool. Tax. 926. See Judgment. 
 
 Every tax must be supported by a valid 
 assessment roll. Welty, Assess. 3. And it 
 must be in the required form. Id. 230- 
 236 ; 1 Blackw. Tax Titles, 223-250 ; 
 Welty, Assess. 80-96, 220-225; 1 Cool. 
 Tax. 596-598. 
 
 "Due process of law" — constructive no- 
 tice, — these conserving principles of pro- 
 cedure are strictly guarded in taxation 
 law. Taxation statutes are construed like 
 penal statutes. Marx; 2 Kent. 333, 344; 
 End. Stat. 329-356; Bro. Max. 4: cases; 
 Deputron : 121. 
 
 Description of property must be certain. A 
 tax cannot be enforced against other prop- 
 erty. Wap. Proceed. Rem. 232 ; Rich- 
 
DATUM POSTS. 
 
 71 
 
 Leading Cases. — 132. Lawrence. 
 
 ards v. Com. (1894), 40 Neb. 45, 42 Am. 
 St. 650 ; Welty, Assess. 220-225 ; Debile 
 fundamentum. 
 
 If, after a tax is imposed, it was pro- 
 vided that a personal judgment might be 
 obtained for it, then this "adjective" law 
 would affect substantial rights. Curative 
 statutes cannot affect the higher policies 
 involved. P. v. Seymour. De minimis, 
 etc. 
 Wherever constructive notice is involved it 
 is strictly guarded and construed against. 
 If any essential link is insufficient, the 
 chain parts and all affected by or charged 
 with notice are dismissed until new no- 
 tice is given according to law*. Taxation 
 proceedings are viewed as are those to 
 give notice by publication. Pennoyer. 
 They must be certain, and no less so than 
 in judicial proceedings. Jurisdictional 
 facts must affirmatively appear, and not 
 be argumentatively inferred. Runkle. 
 Otherwise it would be just as well to dis- 
 pense with the requirements of records 
 and for the participation of various offi- 
 cials representing the different depart- 
 ments of state power. 1 Cool. Tax. 545, 
 601, 741, 748, 926. 
 
 All of the foregoing observations are 
 greatly in conflict in several states. It 
 would exceed the province of this work 
 to dwell upon the conflict, which shows' 
 that what we hint at is greatly misunder- 
 stood in many quarters. 
 
 133. TILTtm v. B. B. (1874), 3 Saw- 
 yer, 22 ; Welty, Assess. 225 ; Cool. Tax. 
 759. 
 
 Cited, §§ 49, 104, 105, 186, 190, 224, 243, 
 314, Hughes' Proc. 
 
 Description of owner of property, and of vol- 
 uation, must be certain. Tilton. De- 
 scription of lands must be certain. Til- 
 ton ; Keane ; Woods v. Freeman ; Stout ; 
 Chestnut, 64 Ark. 580, 62 Am. St. 213, 
 n. ; Sherman : 305. Officers liable for 
 .proceeding upon void descriptions. Atwell, 
 26 Mich. 118 ; Stetson. 
 
 134. BU3TIN V. MERCHANTS', ETC., 
 CO. (1896), 23 Colo. 35; Cool. Tax. 919, 
 936, 937. 
 
 An affidavit for publication of notice of sale 
 for taxes must appear of record. 
 
 Taxation; best evidence required. "What 
 ought to be of record must be proved by 
 record." Bro. Max. 4 ; Cool. Tax. 313, 
 339, 2d ed., New. Eject. 142, sub, Piper ; 
 Martin, 140 U. S. 634. Facts to sustain 
 a tax must affirmatively appear of record. 
 Iverslie ; 1 Dest. Tax., § 114 : cases ; Mo- 
 ser: 125 (there can be no oral levy 
 and collection of a tax). And likewise a 
 judgment. Rushton. Evidence ; exclusive 
 evidence ; corporation books ; what they 
 must show, is conclusive. 1 Dill. Mun. 
 Corp. 300 ; Iverslie : 46. 
 
 135. BBISTOW V. WBIGHT (1781), 
 Doug. (Eng.) 665, 1 Term Rep. (D. & E.) 
 238, 1 Sm. L. C. 1417-1444, ext. n. (8th 
 ed.), omitted in 9th, 10th, and 11th eds.. 
 1 Gr. Ev. 60-65. Dunlap, 105 Mo. Ap. 
 1, 5, 7. 
 
 Cited, pp. 17-19, 28-30: §§ 5, 5a, 8, 15-19, 
 
 Leading Cases. — 135. Bristow. 
 
 22, 23, 29, 47, 134, 143, 181, 183, 186, 
 191, 245, 251, 255, 260, 268, 270, 271, 
 273, 321, 335, 350, Hughes' Proc. 
 
 Cited, §§ 11, 76, 91, 108, 111, 113, 118, 
 119, 142-144, 159, 162, 167a, 175, 232, 
 271, 272, 278, Gr. & Rud. 
 
 Bristow v. Wright ,slated: In an action 
 against a sheriff for taking goods without 
 leaving a year's rent, the plaintiff de- 
 scribed himself as a yearly tenant, paying 
 rent quarterly. But it was proved that 
 the rent was payable yearly, and this was 
 held a fatal variance because it was 
 descriptive. 
 
 S. P. Wabash R. R. ; Eddy Co. ; Gue- 
 del; Gridley, 68 111. 47, Bliss, PI. 215, 
 stating Dickensheets, 28 Ind. 251 ; Mc- 
 Clelland, 3 Texas, 210 (a somewhat lib- 
 eral rule followed) ; Colorado Fuel, 8 
 Colo. Ap. 541 (allegata et probata must 
 correspond ; variance waived, if not ob- 
 jected to.) See Thomas: 15, for Colorado 
 cases. Sault v. P. (1893), 3 Colo. Ap. 
 502, Pom. 553, 554; Garland: 160 (irrele- 
 vant evidence incompetent; Shutte : 291) ; 
 Southwick v. Bank (1881), 84 N. Y. 420, 
 428. 429 ; Adams v. Gill. 
 
 Descriptive averments must be proved as 
 laid. 1 Bouv. Die. 982 (immaterial aver- 
 ment) ; Rushton : cases ; Haupt v. S. 
 (1899), 108 Ga. 53, 76 Am. St. 19, n., 1 
 Ev. 63. 
 
 Bristow is a part of Bxpressio unius, 
 etc., so often cited, and it well expresses 
 Verba generalia restringuntur, etc. Dun- 
 lap v. Kelley, 105 Mo. Ap. 1, and also 
 that rule of construction, that no gather- 
 ing of words can have more than one 
 true meaning, elsewhere noted, and some- 
 times one phase of Dovaston ; and it may 
 be considered with Rushton. It is cited 
 in 1 Gr. Ev. 60-65, Chit. PI. And. Steph. 
 PI. B. v. W. is a corollary of Rushton 
 which is reaffirmed in codes (Eddy Co.), 
 for if a matter must be described, then 
 it follows that all others are excluded. 
 This is basic, as elsewhere observed. See 
 Dickson v. Cole. 
 
 Bristow is Often denied, and especially 
 in texf-books. And. Die. 50, Maxw. PI. 
 568-572 (quoting English practice act 
 and also code provision) ; Phillips, PI. 
 379, 520. 
 
 Very plain code provisions are often 
 construed to abrogate the high and neces- 
 sary rationale of Bristow. See Codes. 
 Adore non probante reus absolvitur is a 
 maxim from which much may be de- 
 duced. This maxim is but a corollary 
 of De non apparentibus, etc. The stability 
 of law — of all its branches — depends upon 
 a right application of those maxims. Still 
 they are denied. See Thboby op the 
 Case ; J'Anson. 
 
 Variance is waived if not ■ objected to. A 
 party must aptly object ; he cannot ac- 
 quiesce in error in a trial court and 
 then raise objections on appeal. Dorn ; 
 Colfax, etc. Co., 118 Cal. 648, 40 L. R. 
 A. 78. See Shutte : 291 : cases ; Consensus 
 tollit errorem. 
 
72 
 
 DATUM POSTS. 
 
 Leading Cases.— 135. Bristow. 
 
 The rule in Bristow upheld in Bissell, 
 19 Johns. 66 (production of a note for 
 $300 will not prove a note described as 
 for $180). Robertson (1821), 18 Johns. 
 451 (one cannot sue on a quantum meruit 
 to recover upon, an, express contract. 
 Cutter). 
 There shall be no departure is a fundamen- 
 
 §§ 162, 182, 205, Gr. & Rud. 
 There shall be no departure is a fundamen- 
 tal rule of pleadings. Lang v. Metzger, 
 206 III. 475, 488 (very strict rule in 
 equity) ; Sto. PI. 10 ; Borkenhagen : 81. 
 Requirements of appellate procedure, col- 
 lateral attack, res adjudicata, "due pro- 
 cess of law," removal of causes and con- 
 structive notice depend on certainty. The 
 continuity and certainty of jurisdiction, 
 and a congruous theory of it, from the in- 
 vesting of a court with it by the plead- 
 ings to and including the tests of the 
 validity of a record upon collateral at- 
 tack, depends upon respect for the rule in 
 Bristow. In other words, a certain and 
 definite theory of procedure — the stability 
 of the due administration of justice — de- 
 pends upon it. Argument for intermittent 
 and fluctuating jurisdiction is inadmis- 
 sible. Causes of action, cannot be first 
 made to appear from answers or replies 
 matters of the mandatory record and a 
 fortiori never from the bill of exceptions. 
 The functions of pleadings for constructive 
 notice (Windsor), forbid that view. The 
 cause of action described in the indict- 
 ment, information bill, complaint, peti- 
 tion, declaration, libel, state of claim, 
 is the one the court must confine itself to. 
 It is usurpation- — abuse of power — to 
 assume any other, or to exercise judicial 
 power upon any other. Protection from 
 usurpation depends upon the commonplace 
 rule, "there shall be no departure." This 
 is a great bulwark against oppression. 
 Courts cannot begin with jurisdiction of 
 one thing, and, while proceeding with that, 
 substitute something else, and adjudicate 
 that ; for their shall be no departure. 
 From the ends of the conserving principles 
 of procedure the reason for the rule, 
 "there shall be no departure," is dis- 
 coverable. Further, that rule may be 
 traced from another one — that the gen- 
 eral demurrer searches the whole record 
 and attaches to the first fault ; also rules 
 relating to the functions of answers and 
 replies, and bills of exceptions. 
 
 It cannot be admitted that statutes can 
 abolish the rules in question. The con- 
 serving principles cannot be abrogated. 
 The Judicature Act of England expressly 
 provides against departures — variances. 
 
 Federal procedure denounces variances, 
 as may be deduced from Shutte: 291 and 
 those cases which hold that where there 
 Is no allegata there can be no probata. 
 A court is bound by its record ; it can 
 only hear and adjudicate the matter pre- 
 sented by the record, and the right record 
 made at the right time, by the right hand 
 
 Leading Cases. — 135. Bristow. 
 
 (division of state power), in the right 
 way. The theory of the case must be 
 within and be consistent with the plead- 
 ings ; these cannot be overridden and 
 abrogated by rules of construction. Saun- 
 derson (Wis.) ; Quod ab initia, etc. 
 Statutes cannot abolish variances. Frustra 
 probatur, etc. §§ 19-21 : Hughes' Proc. 
 Rushton : 5 : cases ; Shutte : 291 : cases. 
 One cannot allege a special contract and re- 
 cover upon an implied one. Davis v. 
 Cbase (1902), 159 Ind. 242, 95 Am. St. 
 294 ; Cutter : 308 ; Robertson. 18 Johns. 
 451. 
 
 Proof of ordinary negligence will not 
 support a charge of gross. King v. R. R. 
 205 ; Rideout ; Guedell : 74a. 
 
 When the same transaction involves 
 both a contract and a tort, then the plead- 
 ing upon neither one phase or the other 
 is sufficient. Kelley v. R. R. ( 1895) , 
 1 Q. B. L. R. 944. 
 136. EDDY CO. V. BLACKBUEN 
 (1895), 70 Fed. 949, 17 C. C. A. 532, 
 30 U. S. App. 571. 
 Cited, p. 30 ; §§ 8, 17, 19, 22, 29, 41, 78, 
 79, 186, 240, 245, 251, 260, 268, Hughes' 
 Proc. 
 Cited, §§ 113, 118, 119, 159, 205, 232, 278, 
 
 Gr. & Rud. 
 Eddy Co. stated: Allegata et probata must 
 correspond. Although under modern sys- 
 tems of pleadings, courts of law, where 
 their remedies are inadequate, may en- 
 force equitable rights, it is stringently 
 required that the proof must agree with 
 and support the pleadings. The rule of 
 the common law is essential for the con- 
 serving principles of procedure. Bristow. 
 And within the grounds alleged and relied 
 on to obtain it. Rushton ; Starbuck : 263 ; 
 Dovaston. Technicalities about allegata et 
 probata are essential. Actore, etc. 
 Codes do not abolish essential technicalities 
 — safeguards of the law. Eddy Co. Be 
 non apparentibus, etc. Frustra probatur. 
 Issues should be clear and defined. Gay. 
 A court is bound by its record. It can pass 
 on no subject not presented by the plead- 
 ings. Evidence will not do for pleadings; 
 these only confer power to adjudicate. 
 Gentry. Frustra probatur, etc. 
 136a. FEBB7 V. PORTER (1878), 124 
 Mass. 338-342. Criticised, 17 Green 
 Bag, 8 (Melville M.. Bigelow). §245, 
 Hughes' Proc. Cited, §§ 108, 118, 272, 
 278, Gr. & Rud. 
 Defamation; slander; Allegata et probata 
 must correspond. The words charged must 
 be proved as laid. Larceny is not decep- 
 tion and fraud ; proof of the latter words 
 will not sustain the charge of thief. 
 
 The charge that the words were spoken 
 to the trustees of a corporation to prevent 
 their support of plaintiff for an office, is 
 not supported by proof of communication 
 with one of those trustees, in the absence 
 of evidence showing they were spoken to 
 him as a trustee for such purpose. One 
 trustee is not all. 
 
 The wrong must be proved as laid. 124 
 Mass. 340 ; Bristow v. Wright ; Frustra 
 
DATUM POSTS. 
 
 73 
 
 Leading Cases. — 136a. Perry. 
 
 probatur, etc. ; Relevancy of evidence. 
 See Variance. 
 Allegata et probata must agree. Fish v. 
 Cleland (no allegata, no probata) ; Lloyd 
 v. Karnes (1867), 45 111. 62, 70: cases 
 (same at law and in equity) ; Heath v. 
 Hall (1871), 60 111. 344, 350: cases; 
 Adams v. Gill : cases ; Lockhart v. Leeds 
 (1904), 195 U. S. 427 (liberal rule) ; 
 contra cases cited id., p. 432 ; Harrison v. 
 Nixon, sub, Garland. 
 
 137. WABASH B. B. v. FRIEDMAN 
 (1892), 146 111. 583, 30 N. B. 353. S. P. 
 Bristow. Allegata et probata must corre- 
 spond. Instructive case. Eddy Co., 206 
 
 . 111. 488. 
 Cited, p. 30 ; Hughes' Proc. 
 Cited, §§ 113, 118, 143, 159, 205, 272, 278, 
 
 Gr. & Rud. 
 Variance is waived if not objected to. Dorn ; 
 
 Guedel. {Consensus tollit errorem.) 
 
 138. GAY V. WINTEB (1867), 34 Cal. 
 153. Courts should define issues and have 
 them made certain. See General Issue. 
 Bates: 225; P. v. Ryder (1855), 12 N. Y. 
 433. Kollock. See 32 Colo. 51. 
 
 Cited, §§ 12, 39, 41, 82, 95, 145, 251, 
 Hughes' Proc. ; § 272, Gr. & Rud. 
 
 In the proceedings before Festus and 
 Agrippa appears how the scribes and 
 Pharisees were instructed of the manner 
 of the Romans, and how the conclusion 
 of law was a nullity ; what must be al- 
 leged and what proof was required, and 
 that pleadings were to limit the issues and 
 to narrow the proofs. Kollock. A gov- 
 ernment of protection and of mercy could 
 be constructed. See p. 11, Gr. & Rud. 
 
 Bills of particulars may be ordered. Cryps. 
 
 Notice to produce a document need not be 
 given, if it is admitted. Consequently it is 
 important to know what is admitted. See 
 Admissions ; Denials ; Kollock. 
 
 139. WALDEN V. BODLEY (1840), 14 
 Pet. 156, 164 (10 L. ed. 398, 402). 
 
 Limitations of the right to amend. Amend- 
 ments cannot be made to affect the uses 
 of records for protection — for constructive 
 notice. Wooters, sub, Crepps ; Codington 
 v. Mott (1862), 1 McCarter (N. J.), 430, 
 82 Am. Dec. 258 ; Bliss, PI. 428-431 ; Sto. 
 PI. 892-905 ; Gentry. See Waiver. Limi- 
 tations of the right to amend indictments. 
 R. v. Naylor ; Owen v. Weston. 
 
 From the dominating principles of pro- 
 cedure the limitations of the right to 
 amend are discoverable. Gates, 117 Wis. 
 170; Francisco: id. 242 (Wisconsin rule 
 of limitation) ; 205 U. S. 141. 
 
 140. WHITE V. LYONS (1871), 42 Cal. 
 279. A prayer to a complaint limits the 
 recovery. Sub, Hood ; Russell v. Shurtleff. 
 Cited, §§ 268, 321, Hughes' Proc. 
 
 . general prayer sufficient. Fost. Fed. Prac. 
 83. Codes require a prayer — demand for 
 damages. The forms of the law are a 
 part of the law. However, the omission 
 of them may be waived, and if waived the 
 formal defect is cured. It is the state- 
 ment of the pleading that gives the court 
 authority — jurisdiction. See Jurisdiction. 
 Those cases holding that a jurisdiction 
 conferred by the statement is afterward 
 
 Leading Oases. — 140. White. 
 
 divested by the non action of a defendant, 
 because a prayer was omitted, concede too 
 much to statutes and codes. See 2 Suth. 
 Dam. 415 : cases ; Russell. Ad damnum. 
 
 141. HOOD T. SUDDEBTH (1892), 111 
 N. C. 215, 47 Alb. Law Jour. 91, 16 S. 
 Rep. 397; 4 Suth. Dam. 1282 (Seduc- 
 tion), id. 1281-1285. 
 
 Seduction. Adult woman may sue for, when 
 induced by fraud. Promise to marry and 
 solicitations to consent because the parties 
 were just the same as husband and wife, 
 and soon would be, is fraud. Hood. See 
 Hegarty; Volenti. Who may sue for. 4 
 Shutte Dam. 1282. 
 
 Prayer; remedy. Any remedy may be af- 
 forded consistent with the facts of a case, 
 whether demanded in the complaint — in 
 the prayer — or not. White ; Davidson, 
 143 111. 139, 36 Am. St. 367, n. ; Met- 
 calf v. Hart (1891), 3 Wyo. 513, 31 Am. 
 St. 122. • See Russell v. Shurtleff (Colo). 
 If a complaint is uncertain as to 
 whether in tort or contract, a plaintiff 
 may elect. Whitney : 112 ; Bliss, PI. 119, 
 n. ; Hood. 
 
 142. MABBT7BY v. MADISON (1803), 1 
 Cranch (U. S.), 137, 174, 1 Curtis, Dec. 
 368 (2 L. ed. 61), Boyd, Const. Cas. 17, 
 1 Thayer, Const. Cas. 107, McClain, Const. 
 Cas. 766-768, Brown, Jurisdic. ; § 8, also 
 Hughes' Conts. 8 Cyc. 726. 
 
 Cited, pp. 12, 20, 34; §§ 9, 28, 31, 33, 65, 
 66, 186, 213, Hughes' Proc. 
 
 Cited, §§ 12, 33, 60, 62, 79, 87, 96, 110, 
 147, 239, 240, 248, 261, 267-268, 279, 
 Gr. & Rud. 
 
 Judicial power vested by a constitution can- 
 not be divested oy lesser laws — statutes. 
 Blake. A notary public cannot punish for 
 contempt, not having judicial power. Hu- 
 ron, 58 Kan. ] 52, 62 Am. St. 614, n. ; 
 Flournoy ; P. v. Maynard ; Suth. Stat. 570. 
 
 Appellate jurisdiction vested by a constitu- 
 tion cannot be otherwise vested by a 
 statute. Allen, 122 Mich. 324, 80 Am. 
 St. 573, n. ; Haight, 8 Cal. 297, 68 Am. 
 Dec. 323 ; Canby, 167 111. 628 (when a 
 constitution vests jurisdiction, legislatures 
 cannot divest it. P. v. Hastings) ; U. S. 
 V. Shipp, 203 U. S. In prwsentia majoris 
 cessat potentia minoris; Expressio unius. 
 
 "Courts of appellate jurisdiction only" will 
 review only questions first passed upon by 
 a trial court. Lane v. Dorman. Green, 
 50 S. C. 514 (general demurrer not raised 
 in lower courts is waived), 62 Am. St. 
 846, note 63 Am. St. 910 ; O'Brien. 101 
 Iowa, 40, 63 Am. St. 368 ; Rushton ; 
 Campbell : 2a. 
 
 A question not raised at the trial will not be 
 considered for the first time on appeal, 
 Green, supra; Reich, 151 N. Y. 122, 56 
 Am. St. 607, n. ; Lough : 291 ; Zang, 25 
 Colo. 551, 71 Am. St. 145; Williamson, 
 54 S. C. 582, 71 Am. St. 822. 
 
 Cases will be reviewed by the appellate court 
 only upon points and theories presented to 
 the trial courts. Rivard, 109 Mich. 98, 
 63 Am. St. 566 ; Garland v. Wholebau ; 
 Lough ; 1 Black, Judg. 242. See Theory 
 op the Case. Consensus tollit errorem. 
 
74 
 
 DATUM POSTS. 
 
 Leading Cases. — 142. Marbury. 
 
 Courts are bound by their records. 
 Houston ; Horan ; Cohens ; Iverslie : 46. 
 Fabula non judicium. 
 
 Departures there cannot be. See Id. ; 
 Continuity ; Variance : Bristow. 
 
 There is no wrong without a remedy. Mar- 
 bury ; Ubi jus, etc. "The government of 
 the United States is a government of laws 
 and not of men." Marbury. 
 
 "The very essence of civil liberty certainly 
 consists in the right of every individual 
 to claim the protection of the laws when- 
 ever he receives an injury. One of the 
 first duties of government is to afford that 
 protection. In Great Britain the king 
 himself is sued in the respectful form of 
 a petition, and he never fails to comply 
 with the judgment of his court." 
 
 The constitution gave to the supreme 
 court original jurisdiction of ambassadors, 
 consuls, public ministers, and where states 
 are parties, and appellate jurisdiction in 
 all other cases. To this enumeration ap- 
 plies Expressio unius, etc. Therefore, con- 
 gress cannot augment the original juris- 
 diction by additions of other subject-mat- 
 ter. The constitutional enumeration is 
 exclusive. To this point Marbury is wide- 
 ly cited. Nor can its powers be dimin- 
 ished, U. S. v. Shipp, 203 U. S. 
 
 143. P. v. MATNAED (1S53), 14 111. 
 419, Brown, Jurisdic. 14 ; Mech. Pub. Off. 
 514 (jurisdiction vested by a constitution 
 is exclusive) ; Marbury ; Allen, 122 Mich. 
 324, 80 Am. St. 573, n. ; Suth. Stat. 
 395. See Hastings: 144. 
 
 Cited, §§ 31, 32, 186, Hughes' Proc. 
 Cited, §§ 60, 239, 240, 268, Gr. & Rud. 
 
 144. P. v. HASTINGS (1866), 29 Cal. 
 449, Brown, Jurisdic. Only the consti- 
 tutional officer, if so named, can assess. 
 Division of state power. Winona Case : 
 P. v. Maynard ; Expressio unius, etc. 
 Judicial functions cannot be delegated. 
 Van Slyke. Assessment must be bona fide 
 made, and by the proper officer. Tampa, 
 39 Pla. 683, 63 Am. St. 202, n. : cases. 
 See Welty on Assessments. 
 
 Cited, §§ 31, 151, 314, Hughes' Proc. 
 
 Official functions cannot be delegated 
 
 nor contracted away. See Ultka Vibes ; 
 
 P. v. Hastings ; Constitutionalism. 
 Cited, §§ 60, 135, 239, 240, 268, 274, Gr. & 
 
 Rud. 
 
 145. BENNETT, PETITIONER (1851), 
 32 Me. 508, 54 Am. Dec. 602-604, n. ; 
 Brown, Jurisdic. Cited, §§ 28, 31, 66 67 
 99, 101, 151, 166, 167, 186a, 191, 205 
 214a, 243, 304, Hughes' Proc. 
 
 Cited, §§ 48, 63, 96, 136, 177, 237, 238, 268 
 Gr: & Rud. 
 
 Division of state power. Nos. 47, 48, 66, 
 70, 73, 75, 78, 81, The Federalist; Flour- 
 noy : cases ; Merrill, 1 N. H. 199, 209, 8 
 Am. Dec. 52 ; Cool. Const. Lim. 109, n., 
 6th ed., Suth. Stat. 6, 11, 164, 206 ; Mis- 
 sissippi v. Johnson (1866), 4 Wall. 475, 
 (18 L. ed. 437, n.) ; Thayer, Const. Cas! 
 196 ; Suth. Stat. 2 ; Burton v. U. S. 
 
 Judges can exercise judicial power only. 
 Norwalk, 69 Conn. 576, 39 L. R. A. 794: 
 cases. 
 
 Judges cannot be made to discharge duties 
 foreign to their office. Board, etc., 97 Md 
 247, 62 L. R. A. 809. 
 
 Leading Cases. — 145. Dennett. 
 
 Officers of each department of state are 
 equally bound by demands for a record. 
 Requirements for records are mandatory 
 upon all alike. Starbuck: 263. See Con- 
 stitutionalism. A solicitor of the treas- 
 ury can issue an execution. Murray : 219 
 sub. 
 146. FLOUBNOY V. CITY OP JEP- 
 FERSONVILLE (1861), 17 Ind. 169 79 
 Am. Dec. 468-477, n. ; cited, Mech. 'ae 
 592, 1 Dill. Corp. 481, 2 id. 813 815 1 
 Beach, 208, 678 ; Payton v. MeQuown 
 (1895), 97 Ky. 757, 53 Am. St. 437. See 
 Division of State Poweh. Cited. Hughes' 
 Conts. Cited, §§ 70, 99, 100, 101, 151 
 152, 165, 167, 178, 186, 214a, 243, 304' 
 339, Hughes' Proc. 
 Cited, §§ 60, 96, 134, 136, 177, 268, Gr 
 
 & Rud. ' 
 
 Ministerial and judicial acts distinguished. 
 A ministerial act is one which a person 
 performs under a given state of facts, in 
 a prescribed manner, in obedience to the 
 mandate of legal authority, and without 
 regard to the exercise of his own judg- 
 ment upon the propriety of the act being 
 done. Flournoy ; Dennett ; Beach, Pub. 
 Corp. 260, 2 Bailey, Jurisdic. 901. 
 A statute giving a clerk of a court power to 
 fix the amount of bail is unconstitutional. 
 Gregory v. S. (1883), 94 Ind. 384, 48 
 Am. Rep. 162-166 ; Adams v. S. (1900), 
 156 Ind. 596 (statute cannot encroach on 
 the judiciary by making stenographer's 
 transcript a bill of exceptions). 
 Entering a judgment in vacation by a clerk 
 is judicial, and vitiates. Hall v. Marks 
 (1864), 34 HI. 358; De Chastellux; cited, 
 Brown, Jurisdic. ; Van Fleet, Coll. Att., 
 § 803. Judicial power cannot be dele- 
 gated. Van Slyke. But ministerial power 
 can be delegated. A constable may ap- 
 point a deputy. 
 Power to grant an injunction is judicial, and 
 a clerk empowered to grant cannot dele- 
 gate the act. Payton, supra. A clerk 
 cannot exercise judicial functions. Hall, 
 supra; Gregory; Van Fleet, Coll. Att. 803. 
 See P. v. Simon (1898), 176 111. 165, 68 
 Am. St. 175, n. 
 
 Rejection of a claim against a county 
 by a board of county commissioners is not 
 a judicial act, and is not res adjudicata. 
 Board of, 12 Ind. Ap. 315, 54 Am. St. 
 528, n. Authority of county commission- 
 ers. Jones, 57 O. St. 189, 63 Am. St. 
 710, n. 
 Political and executive questions; martial 
 law. See Constitutional Law ; Martin 
 v. Mott (1827), 12 Wheat. 19, Milligan, 4 
 Wall. 2, 2 Thayer, Const. Cas. 2376; 
 Johnson v. Jones' (1867), 44 111. 142, 92 
 Am. Dec. 159; Luther v. Borden (1849), 
 7 How. 1; 1 Thayer, Const. Cas. 191; 
 Mississippi Johnson, 4 Wall. 475. 
 Division of state power. Dennett : 145. 
 147. M'CUT,I.OCH V. IUBYLAN9 
 (1819), 4 Wheat. (U. S.), 316, 4 Curt. 
 415 (4 L. ed. 579), 199 U. S. 469. 201 
 V. S. 255. Gt. Opin. Gt. Judges, 267, 
 Marshall Const. Dec, Thaver, Const. Cas. 
 271, Boyd, Const. Law, 32-40, 308-323; 
 
DATUM POSTS. 
 
 75 
 
 Leading Cases. — 147. M'Culloch. 
 
 McClain, Const. Cas. 1-13, Brown, Juris- 
 dic. ; Overshiner v. S. (1901), 156 Ind. 
 187, 59 N. B. 468, 83 Am. St. 187 ; 
 Expressio eorum, etc. ; Martin v. Hunter's 
 Lessee ; Logan v. U. S. ; Neagle, In re. 
 Cited, Hughes" Conts., 190 U. S. 259. 
 
 Cited, pp. 8, 9, 20, 33, 34; §§ 1, 6, 9, 10, 
 12, 13, 16, 17, 20, 21, 26, 28, 45, 76, 100, 
 169a, 186a, 203, 206, 214a, 268, 271, 275, 
 278, 291, Hughes' Proc. 
 
 Cited, Preface; §§ 5, 33, 46-48, 78-80, 86, 
 116, 126, 137, 138, 147, 151, 207, 213, 
 263, 266-268, 297, Gr. & Rud. 
 
 M'Culloch is a truly great case upon con- 
 struction, and the application of the 
 maxim Expressio eorum, etc. Because of 
 this it is called a great constitutional 
 case. It is so often referred to it should 
 be well understood. 
 
 "The power to tax is the power to destroy." 
 
 M'Culloch stated: Maryland proceeded to tax 
 a branch bank of the U. S. within that 
 state. This tax was resisted by its man- 
 ager, M'Culloch ; and the question whether 
 or not a state could tax a federal agency 
 was carried before the highest tribunal, 
 where Marshall spoke for the court, hold- 
 ing that a principal thing carries its inci- 
 dents, and that upon incidental things a 
 principal thing depends; that the U. S. 
 can establish a bank as an incident of 
 the government, and that the power to 
 tax is the power to destroy ; and .that if 
 states can tax federal agencies, then they 
 can destroy them. M'Culloch should be 
 read with the Martin, Cohens, Tarble, 
 Collector, G-ibbons, Neagle, and Logan 
 cases. They are full and replete with 
 instruction of the polity of the federal 
 ■ government. 
 
 "Let the end be legitimate, let it be within 
 the scope of the constitution and all 
 means which are appropriate, which are 
 plainly adapted to that end, which are 
 not prohibited but consist with the 
 letter of the constitution are constitu- 
 tional." 
 
 A principal thing carries with it its inci- 
 dents. Suth. Stat. 340, 341. Expressio 
 eorum, etc., Max. No. 14, §§ 203-209, 
 Hughes' Proc. 
 
 Constitutions deal with general terms, not 
 codes and details. Murray's : 219. Lex 
 non exactej cujus est. 
 
 147a. rilBHAlT v. NICHOLS (1869), 8 
 Wall. (U. S.), 44 (19 L. ed. 370), 2 Fost. 
 Fed. Prac. 500 (writs of error to state 
 courts). 
 
 Cited, §§ 34, 175-177, Hughes' Proc. 
 
 The mandatory record must disclose a fed- 
 eral question. It is not sufficient that it 
 appears from the statutory record, or any 
 part of it, or by evidence aliunde, or from 
 dicta. 
 
 The mandatory record must disclose a fed- 
 eral question. L. & N. R., 166 U. S. 709 ; 
 Covington Turnpike Co. v. Sandford ; 
 Howard V. Fleming ; Carstairs v. Cochran 
 (1904), 193 U. S. 10. 
 
 Federal question : how it must be made to 
 appear. 2 Fost. Fed. Prac. 500 (p. 1186), 
 180 U. S. 187. See Federal. 
 
 Opinion of state court may be examined. 
 
 Leading Cases. — 147a. Furman. 
 
 Loeb, 179 U. S. 473; 2 Fost. Fed. Prac. 
 500 (p. 1186). But opinions cannot supply 
 facts that should appear in the mandatory 
 record. This kind of aider is not recog- 
 nized. Loeb, supra. 
 
 Where one could or might raise a fed- 
 eral question, he should, and also except: 
 also show these facts of record. 2 Fost. 
 Fed. Prac. 500 (p. 1186) : cases ; Winona 
 Case. 
 
 The mandatory record is essential for the 
 exercise of the appellate power of the 
 supreme court of the United States. For 
 this is an implication; it is required by 
 the supreme laws of the land; it cannot 
 be waived. §§ 10-12, Hughes' Proc. 
 
 For the exercise of principal powers, 
 essential incidents will be implied. For 
 these a liberal construction is recognized. 
 M'Culloch. The federal question or the 
 character of the defendant must appear 
 from the complaint. O. S. L. R. R. v. 
 Skottowe (1895), 162 U. S. 490, 494. See 
 Federal. 
 
 148. COLLECTOR V. DAT (1870), 11 
 Wall. (U. S.) 113 (20 L. ed. 122) : stated. 
 190 U. S. 256, Cool. Const. Lim. 592 ; 
 cited, 2 Dill. Corp. 775, 1 Cool. Tax. 
 133 ; 2 id. 1119 ; 199 U. S. 466. 
 
 The federal government cannot tax state 
 agencies. A United States revenue collec- 
 tor assessed Probate Judge Day, of Massa- 
 chusetts, $61.50 upon his salary for the 
 years 1866 and 1867. Day's salary was. 
 fixed by law and payable out of the treas- 
 ury of the state. He paid the tax under 
 protest and brought suit to recover it. 
 (U. P. R. R. v. Dodge Co.) ~J.eld, re- 
 coverable. The national government can- 
 not tax state agencies, and e converso. Mar- 
 shall's maxim in M'Culloch was that "the 
 power to tax involves the power to de- 
 stroy." 11 Wall. 127 ; 190 U. S. 259. 
 
 In Collector, M'Culloch, Weston v. 
 Charleston (1829), 2 Pet. 449, Dobbins, 16. 
 Pet., Veazie, 8 Wall. 533 (relating to- 
 taxation), are stated, reviewed and af- 
 firmed. 
 
 "The general government in the states, al- 
 though both exist within the same terri- 
 torial limits, are separate and distinct 
 sovereigns, acting separately and indepen- 
 dently of each other within their respec- 
 tive spheres. Ableman ; Cool. Const. 
 Lim. 11 ; Tarble's Case. The former in 
 its appropriate sphere is supreme ; but the- 
 states, within the limits of their powers, 
 if not granted, or, in the language of the 
 Tenth Amendment, 'reserved,' are as 
 independent of the general government 
 as that, government within its sphere is 
 independent of the states." Collector ; 
 Cruikshank ; Suth. Stat. 21 : cases. 
 
 The relations existing between the two* 
 governments. Ableman ; Lane County, 7 
 Wall. 71, 76 ; Tarble's Case ; Cohens ; 
 Martin. 
 
 Taxation. The United States cannot tax 
 state's agencies. "The power to tax is the- 
 power to destroy." M'Culloch ; 190 U. S. 
 256. Exemptions of governmental agen- 
 cies from taxation. 1 Cool. Tax. 129-134. 
 The polity of the federal government 
 
76 
 
 DATUM POSTS. 
 
 Leading Cases. — 148. Collector. 
 
 must be understood by the practitioner. 
 Cruiksbank, 232; §§ 10-12, Hughes' Proc. 
 
 149. B. V. GIBSON (1806), 8 Bast 
 (Eng.), 107, 111, 1 Lead. Crim. Cas. (B. 
 & H.) 272-276: stated, 4 Mews' B. C. L. 
 1758, 1771 ; 1 Bish. Cr. Proc. 739, Whart. 
 Cr. PI. & Pr. 429, 486. 
 
 Cited, §§ 15, 25, 195, 324, Hughes' Proc. 
 
 Pleas in abatement; misdemeanor; abate- 
 ment; Respondeat ouster; final judgment. 
 A defendant in an indictment for a mis- 
 demeanor cannot plead over to the charge, 
 after a plea in abatement for a misnomer 
 on which issue is taken and found against 
 him. R. v. Gibson: R. v. Duffy; Rice v. 
 Shute, 1 Sm. L. C. 1405-1417, omitted in 
 9th, 10th and 11th eds. ; Williams v. 
 Bankhead ; Myers. See Abatement. 
 
 150. MYERS V. EBWIH (1851), 20 
 Ohio 382, n. ; cited, 1 Encyc. PI. & Pr. 
 31 : cases ; Piquignot, 16 How. 104. See 
 Mexican R. R. 149 U. S. 194; R. v. 
 Shakespeare (1808), 10 East, 83; Marsh 
 v. Smith (1846), 18 N. H. 366. 
 
 Cited, §§ 18, 324, Hughes' Proc. 
 
 Pleading; Pleas of abatement. An issue of 
 fact joined on a plea of abatement, if de- 
 cided for plaintiff, the judgment is quod 
 recuperet. 1 Chitty PI. 466 ; Gould, PI. 
 300 ; Myers ; Boggs, 23 111. 66 ; 1 Encyc. 
 PI. & Pr. 31 ; Mineral Point R. R., 32 111. 
 19; Googan, 62 111. 66; Greer, 126 111. 
 184, 191 : cases. But see Steele, 20 Brad. 
 (111.) 366 ; Also Steph. PI. 392 (Tyl. ed.) ; 
 R. v. Gibson ; R. v. Duffy ; Rice v. Shute. 
 The judgment on a plea of abatement 
 is either : 
 
 1. That the writ of declaration be 
 quashed cassetur breve or narratio, or, 
 
 2. Respondeat ouster, or, 
 
 3. Final, quod recuperet. 120 111. 181, 
 cases justifying the common law conse- 
 quences. 1 Encyc. PI. & Pr. 31 ; R. v. 
 Gibson. See Abatement. 
 
 Judgment is rendered : 
 
 1. Without issue taken on the plea ; or, 
 
 2. With issue. 
 Issues are either : 
 
 1. Issues in law, or, 
 
 2. Issues in fact. 
 
 Issues on pleas in abatement are : 
 
 1. Such as must be tried by the court, 
 or, 
 
 2. Such as may be tried either by the 
 court or jury. 
 
 The kind or form of judgment rendered 
 on an issue upon a plea in abatement de- 
 pends upon the question whether the issue 
 be found : 
 
 1. For the plaintiff and against the 
 plea, or, 
 
 2. For the defendant and in favor of 
 the plea. 
 
 For distinctive results upon each of 
 these phases, see note to 20 Ohio Rep. 
 387-389 ; 2 Gr. Ev. 27 ; Bouv. Die. ; 
 Abatement. 
 The rule in Myers v. Erwin is most impor- 
 tant to be observed. It is conclusive in 
 its consequences, and should be remem- 
 bered. False and sham pleas were se- 
 
 Leading Cases. — 150. Myers. 
 
 verely punished at common law. Graver - 
 103. 
 
 The verification of pleas in abatement 
 are singularly strict and technical. See 
 Abatement, Hughes' Proc. 
 
 151. BONESTEEl v. OBVIS (1868), 23 
 Wis. 506, 99 Am. Dec. 201, 203, n. Freem 
 Judg. 230. 
 
 Dilatory motions, if all of the same degree, 
 must be presented at the same time. Kra- 
 ner : 299 ; R. v. Gibson. A party is not 
 permitted to divide up his objections or 
 claims for relief by several motions (Ex- 
 pressio unius, etc.) when complete relief 
 can be granted upon one, and all known 
 objections or claims for relief against the 
 irregularities not urged by the first mo- 
 tion are waived. Bonesteel. See Consen- 
 sus; Abatement. All that could or might 
 have been heard is concluded. Kingston's 
 Case; Aurora v. West (1883), 1 Whart. 
 Ev. 782-788, 840, Bigl. Estop. 100, 153. 
 See Res Adjudicata. 
 
 Res adjudicata; such 'motions are not, nor 
 are interlocutory motions in practice. 
 Chichester, sub, Res adjudicata; Freem. 
 Judg. 325 ; 1 Van Fleet, For. Adj. 14-20. 
 
 A final judgment upon the merits essential 
 for Res adjudicata. See Id. But motions 
 in practice may be renewed by leave of 
 court. Bonesteel ; Bennett, 39 Mo. 152, 
 90 Am. Dec. 457. Order of presenting 
 dilatory pleas; table showing, see Abate- 
 ment. 
 
 152. HABKNESS v. HYDE (1878), 98 
 U. S. 476 (26 L. ed. 237), 1 Fost. Fed. 
 Prac. 101 ; Brown, Jurisdic. ; 149 U. S. 
 209 (Mexican R. R. v. Pinkney). 
 
 One sued out of his jurisdiction may except, 
 
 and after answer, trial and defeat, may 
 
 have his abatement exception reviewed. 
 
 Harkness ; Lower, 9 So. Dak. 252, 62 Am. 
 
 St. 865, n. ; Jones, 108 N. Y. 415, 2 Am. 
 
 St. 447, 2 Encyc. PI. & Pr. 629, 630: 
 
 cases ; Brooks, 51 Fed. 138, stating and 
 
 limiting Harkness. 
 Generally abatement matters are waived if 
 
 the merits are pleaded to. See Abatement. 
 Non-resident party may admit service of 
 
 process in another state, and thus waive 
 
 objections. Jones, 113 Mich. 433, 67 Am. 
 
 St, 475, n. 
 
 If one removes his cause, participating 
 
 in a trial is no waiver. Herryford, 42 
 
 Mo. 148, citing Bro. Max. 102. 
 
 153. CLYDE MATTOX V. IT. S. (1892), 
 146 V. S. 140, 147. Cited, §87, Hughes' 
 Proc. ; Cited, § 256, Gr. & Rud. 
 
 Discretion; refusal to open a record and be 
 informed is ground for reversal, even of a 
 discretionary matter. Windsor. Abuse 
 of fundamental right violates high policies. 
 
 Abuse of power and denial of fundamental 
 right, although relating to waivable mat- 
 ter, is material error, and is a ground 
 of exception for review. 102 Am. St. 71. 
 
 154. WILSON v. U. S. (1893), 149 U. S. 
 60 (37 L. ed. 650). Cited, §253. 
 
 Any act of commission or omission may be 
 proved by a bill of exceptions, and it is 
 the duty of a judge to give such, and to 
 
DATUM POSTS. 
 
 77 
 
 Leading Cases. — 154. Wilson. 
 
 aid in making such correct and true. 
 Jelley, 50 Ind. 1. See Abatement. Any 
 and all acts, all things said and done, may 
 be made of record by bill of exceptions. 
 Wilson v. U. S. This is essential for the 
 guaranty of review. "Courts of appellate 
 jurisdiction only" should, and they some- 
 times do, protect this right. 
 
 155. VAIDEH v. C. (1856), 12 Gratt. 
 717, Horr. & Thomp. Cas. Self-defense, 
 222 (1 Crim. Def.) : Kerr, Horn. 167, 179. 
 
 Cited, §§ 12, 253, Hughes' Proc. 
 
 Vaiden stated: V. and his guest were at 
 V.'s house drinking and playing cards. 
 They fell out, and the latter started home, 
 but, being angry and confused, was slow 
 about this and was tarrying and swearing 
 in the yard. He also returned to get his 
 gun which he had left ; this was handed 
 him, and with it he started through the 
 yard fence, when V. appeared, following 
 him with his gun. This added coals to 
 the fire and the altercation was renewed. 
 V. was being clubbed with a gun when he 
 shot and killed the deceased. But his de- 
 fense ,was not perfect and he was con- 
 victed. P. v. Button (1895), 106 Cal. 628, 
 46 Am. St. 259, n. 
 
 Homicide; self-defense ; necessity produced 
 by slayer.. Justification for killing must 
 not arise out of prisoner's misconduct. The 
 slayer must be without fault. Volenti; 
 Nullus commodum. U. S. v. Holmes ; 
 Kerr, Horn. 179. Self-defense cases. Al- 
 drich (killing destructive animals) ; Bird 
 (defense against trespassers) ; C. v. Sel- 
 fridge (self-defense: cases). 
 
 probata must be sufficient, and be present in 
 a record to sustain a conviction. S. v. 
 Croteau; Ad qumstionem facti. 
 
 Bill of exceptions; Facts proved may be cer- 
 tified instead of evidence. Surplusagium 
 non nocet; Utile per inutile non vitiatur. 
 Prolixity is to be avoided in all pleadings, 
 even in bills of exception. R. R. v. Stew- 
 art : 290a. Vain and fruitless things the 
 law will compel no one to do : Lex ne- 
 minem cogit ad vana seu inutilia pera- 
 genda. And. Die. 616. 
 
 156. SMITH V. HODSOH (1791), 4 
 Term Rep. (D. & B.) 211, 2 Sm. L. C. 
 124-139, ext. n., 11th ed. (reviews Eng- 
 lish cases) ; Keener, Sel. Conts. 206, 2 
 Mews' E. C. L. 855, 858, 917, Herm. 
 Estop. ; Whart. Ag., Huffc, 36, Reinh. 
 112, Sto. 250, 259. See Election ; Alle- 
 gans, etc. 
 
 ■Cited, § 23, Hughes' Conts. 
 
 ■Cited, §| 181, 184, 307, 344, Hughes' Proc. 
 
 Election of remedies. Terry ; Kearney, 97 
 Iowa, 719, 50 Am. St. 434, n., Bliss, PI. 
 11-19, Thomas v. Joslin (1886), 36 Minn. 
 1, 1 Am. St. 624. 
 
 If once made, is final and conclusive. Smith. 
 
 Choice between courts is equally conclusive. 
 Field, 6 N. Dak. 424, 66 Am. St. 611; 
 Jones v. Hoar (1827), 5 Pick. 285, n., 
 stated in Terry ; Bliss, PI. 13 n., 154, 244. 
 
 One may waive a tort and sue in assumpsit, 
 where goods have been converted and sold, 
 was decided in Smith. Works on agency, 
 torts and procedure extendedly notice this 
 
 Leading Cases. — 156. Smith. 
 
 very important and instructive principle. 
 Terry presents it. 2 Page Conts. 840-848. 
 If a bankrupt on the eve of his bank- 
 ruptcy fraudulently deliver goods to one 
 of his creditors, the assignees may dis- 
 affirm the contract and recover the value 
 of the goods in trover ; but if they bring 
 assumpsit, they affirm the contract, and 
 then the creditor may set off his debt. 
 Smith. 
 
 Allegans contraria non est audiendus. One 
 cannot "blow hot and cold" at the same 
 time. Smith ; Terry ; Connihan v. Thomp- 
 son (1873), 111 Mass. 270: notes to 
 Smith, Smith Lead. Cas. ; Thomas, supra; 
 Bradley, 149 Mass. 141, 3 L. R. A. 507 ; 
 Kearney, supra; 7 Encyc. PI. & Prac. 
 360-375. 
 
 Remedies; pursuit of one remedy, when an 
 irrevocable election not to pursue an- 
 other. Thomas, supra; Fowler, 113 N. 
 Y. 450, 30 Am. St. 479-494, 4 L. R. A. 
 145 ext. n., Ha hi v. Sugo (a case that at- 
 tracts drastic mention). 
 
 Waiving torts. Webster, 5 Greenlf. (Me.) 
 319, 17 Am. 'Dec. 238-247, -ext. n. ; Jones 
 v. Hoar (goods must be sold — but see 
 Terry) ; Alderson, 45 111. 128, 8 Mor. Min. 
 Rep. 526 : cases, Pom. Rem. 110, 560 : 
 cases ; 1 Wat. Tres. 569, 607-611 : cases ; 
 Bish. Conts. 186 ; Downs, 58 Minn. 49 Am. 
 St. 488, n. ; Keener, Quasi Conts. 159- 
 214 ; 2 Conts. 647 : cases. 
 
 Commercial paper given for debt, if dishon- 
 ored, holder may produce or return it and 
 sue on original consideration. Sub, Tobey. 
 Property must be converted into money. 
 Jones ; Alderson, supra; 1 Wat. Tres. 569. 
 Contra: Terry, Pom. Rem. 569: cases; 
 Cool. Torts, 107 : cases ; Moak, Underh. 
 Torts, 619 : cases. 
 
 Common carrier may be sued upon contract 
 or tort for injury occasioned. Baltimore 
 Ry., 61 Md. 619, 48 Am. Rep. 134 ; Nevin, 
 106 111. 222 ; stated. Bur. Cas. Torts, 329 ; 
 Brown v. C, M. & St. P. R. R. ; Lough : 
 293; Bristow. Contra: Barker, 4 (largest 
 immunity for tort of carrier). See Brown 
 v. R. R. 
 
 Variance ; failure of proof arising from 
 suing in tort and proving in contract. 
 Bristow : 135 ; Brugger : 162 ; Miller v. 
 Hallock (1886), 9 Colo. 551. 
 
 Breach of contract, when a tort. If 
 antecedent duty existed, a subsequent or 
 cumulative contract does not make the 
 wrong any the less a tort ; otherwise if 
 the initial duty was a contract. Russell, 
 87 Iowa, 233, 43 Am. St. 381. 
 
 Amendments; ex delicto actions cannot be 
 changed to ex contractu. Neudecker, 81 
 N. Y. 296. See Pom. 110, 558, 560 ; Wal- 
 den ; Amendments. Election : actions ex 
 delicto and ex contractu. Pom. Rem. 567- 
 573, 2 Chit. Conts. 906. 
 
 An election once made is final and conclu- 
 sive. Smith ; 15 L. R. A. 693 ; 1 Add. 
 Torts, 52 ; note, 38 Am. St. 620 ; Fowler, 
 supra; Thomas, supra; Robb v. Voss, 155 
 U. S. 13 ; Connihan, supra. 
 
78 
 
 DATUM POSTS. 
 
 Leading Cases. — 156. Smith. 
 
 Commencing a suit with full knowledge of 
 all the facts is an election. Conrow V. 
 Little (1880), 115 N. Y. 387, 393, 5 L. 
 R. A. 693 ; stated, 13 L. R. A. 91 : cases ; 
 Crompton v. Beach (1892), 62 Conn. 25, 
 18 L. R. A. 187, n. ; Dash : 237a. 
 
 Concurrent remedies may be pursued. Cross- 
 man, 127 N. Y. 34, 13 L. R. A. 91, n. : 
 cases ; Union Cent. Life Ins. Co., 130 Ind. 
 214, 15 L. R. A. 89, n. ; Walden, 127 N. 
 Y. 34, 14 L. R. A. 211, n. But a cause 
 may be dismissed before a final judgment 
 and another be pursued. Johnson Co., 126 
 Mo. 344, 47 Am. St. 675, n. 
 
 Election of remedies. And. Steph. PI., pp. 
 52-60, 2 Van Fleet, For. Adj. 430-443 ; 1 
 Herm. Estop. 288, Bigl. Estop. 673-694 
 (5th ed.) ; Mills, 126 N. Y. 89, 13 L. R. A. 
 472, n. ; Barndt, 78 Wis. 1, 11 L. R. A. 
 199, n., 102 Am. St. 223-247. Concurrent 
 remedies. Robinson v. Hurley ; 1 Beach, 
 Eq. 444, 449. See Courts. Anotl\er ac- 
 tion pending. 1 Bncyc. PI. & Pr. 750- 
 776 ; McKyring : 33. 
 
 Election of remedies is a doctrine that has 
 its roots in* the conserving principles of 
 procedure. From one viewpoint it en- 
 forces Ignorantia excusat; from another, 
 Interest reipublicas ut sit finis litium — 
 principles of res adjudicata; from another, 
 constructive notice. One cannot begin one 
 kind of action and change it to another 
 by amendment. See Election. 
 
 The integrity of the doctrine depends on 
 accurate, definite and certain pleadings — 
 pleadings that define one certain thing, 
 and kind of a thing. Expressio unius. 
 There shall be no variance or departure. 
 Bristow ; Phillips, PI. 273 ; Maxw. PI. 
 559 ; 1 Chit. PI. 644 ; Bliss, PI. 396. C. 
 v. Roby; R. v. Waters: 70-74. 
 
 Smith is an important case in contract, 
 agency, torts (1 Kinkead, Torts, 4, 5) ; 
 estoppel, procedure, amendments. See 
 Election. Bish. Conts. 777-808 ; 2 Herm. 
 Estop. 1028-1058 ; Bigl. Estop. ; Allegans 
 contraria, etc. ; to stand by demurrer, Bis- 
 sell : 42. Equitable election. Streatfleld. 
 
 157. INSURANCE CO. V. FOLSOH 
 (1873), 18 Wall. 237 (21 L. ed. 827). 
 
 Cited, §§ 12, 78, 79, Hughes' Proc. ; § 119, 
 Gr. & Rud. 
 
 "Courts of appellate jurisdiction only" are 
 bound strictly by the record presented to 
 them — by the record. Insurance Co. (pp. 
 249-259) ; Houston; Horan ; Hall, 8 Colo. 
 103 ; Harney : 32. 
 
 Nothing, therefore, is open to re-exami- 
 nation in this case except such of the 
 rulings of the court made in the progress 
 of the trial as are duly presented by the 
 bill of exceptions (statutory record), p. 
 249, citing Tancred, 12 Mees. & W. 316 ; 
 Campbell v. Porter ; Garland ; Windsor. 
 
 Waivable error must be made to appear by 
 the statutory record, and be duly excepted 
 to. Grand Trunk R. R. But error ap- 
 pearing from the mandatory record needs 
 no exception. Garland : 60 ; Windsor : 
 Hubbard, 115 Mich. 406, 69 Am. St. 580. 
 n. : cases. 
 
 Leading Oases. — 157. Ins. Co. 
 
 One claiming a right or error must make it 
 affirmatively appear. Horan : 85, 99 • 
 Williamson v. Berry : 65 ; Actore. See 
 Appellate Procedure. 
 
 The right to a review in the supreme 
 court of the United States from a state 
 court depends on an exception. Winona 
 Case ; Howard v. Fleming. 
 
 158. HABBIS v. S. (1900), 155 Ind. 15. 
 A motion in arrest of judgment must appear 
 
 from the mandatory record. It will not be 
 noticed if it appears in the statutory rec- 
 ord. 
 
 Cited, § 30, Hughes' Proc. Cited, § 237 
 Gr. & Rud. 
 
 Every presumption is against a pleader. 
 This rule was applied to one moving in 
 arrest of judgment, his motion not prop- 
 erly appearing. It was presumed it stated 
 no ground for arresting the judgment. 
 Verba fortius, etc. 
 
 Bills of exceptions are strictly judged. Hake. 
 What should appear in the record prop- 
 er will not be noticed if it appear in the 
 bill of exceptions nor e converso. Planing. 
 
 159. IANGE v. BENEDICT (1878), 73 
 N. Y. 12, 29, Am. Rep. 80-97, n., Mech. 
 Pub. Off., Throop, Pub. Off., Cool. Torts, 
 Brown, Jurisdic. §§ 88, 241, 296, Gr. & 
 Rud. 
 
 Judicial officers, their liability. See Lit- 
 erature : Hughes' Conts. ; Crepps ; Piper : 
 113-114 ; 2 Bailey, Jurisdic. 896-910 ; 
 Taylor: 219a; Cool. Const. Lim. 432, 6th 
 ed. ; Hazeldine v. Grove (1842), 3 Q. B. 
 997, 3 G. & D. 210 (43 E. C. L. R.), 15 
 Rul. Cas. 215, n., 11 Mews' E. C. L. 11; 
 Busteed v. Parsons (1875), 54 Ala. 393, 
 25 Am. Rep. 688, n. ; Robertson, 99 Wis. 
 652, 67 Am. St. 889, n. (judges rarely 
 liable) ; Bailey, Jurisdic. 905. Void pro- 
 ceedings afford no protection for. Trues- 
 dell, 33 O. St. 186, Bailey, Jurisdic, 1086 ; 
 Vaughn v. Congdon (1883), 56 Vt. Ill 
 (void warrants ; void records ; arresting 
 for outlawed offense). See Jurisdiction. 
 Gardner v. Lynch, 137 Mich. 358, 109 Am. 
 St. 624, n. (justice not liable for void 
 proceedings). Pooler, 75 Me. 488 (war- 
 rant void on its face), Wasson, 6 Blackf. 
 406 ; Bro. Max. 188, Throop, Pub. Off. 
 720-736; Tillman v. Beard (1899), 121 
 Mich. 475, 46 L. R. A. 215, n. (liable for 
 illegal arrest and detention) ; Londegan, 
 30 la. 508 (void proceedings a defense) ; 
 Ferguson v. Kinnoull (Auchterarder case) 
 (1843), 9 Clark & F. 251, 311, 8 Eng. 
 Reprint, 412 (liable for ministerial acts) ; 
 Bro. Max. 90; Stewart f. Case (1893), 53 
 Minn. 62, 39 Am. St. 575, n., Throop, 
 Pub. Off. 709, 724, Kinkead, Torts. 
 
 Liability of judicial officers for usurpation 
 and abuse of power is one of the most un- 
 settled questions of the law. However, 
 upon principle they are liable for con- 
 spiracy and corrupt acts, like all other of- 
 ficers. Stewart v. Cooley (1877), 23 
 Minn. 347, 23 Am. Rep. 690, Cool. Torts, 
 412, Mech. Ag. 584 ; Mitchell v. Galen 
 (1901), 1 Alas. 339; Webb, 109 Tenn. 
 
DATUM POSTS. 
 
 79 
 
 Leading Cases. — 159. Lange. 
 
 701, 97 Am. St. 863 (superior judges not 
 liable for malicious and corrupt acts). 
 
 It has truthfully been said of judicial 
 officers, that they can break down the di- 
 vision of state power, abolish the safe- 
 guards of protection, convert the highest 
 guarantees into a mockery, frustrate the 
 ends of government, and against their 
 flagitious wrongs there is no available or 
 adequate civil remedy. John Marshall 
 proclaimed loudly against the insidious 
 attacks of an ignorant, a corrupt and a 
 dependent judiciary. Plainly, "they must 
 not do wrong, unless they choose to," most 
 nearly expresses the law. They deny that 
 legislatures can impair the obligation of 
 contracts, but declare for themselves that 
 power. Hanford : 86 ; Dash : 237a. See 
 Breeze ; Cujus est instituere, etc. 
 No jurisdiction no judge. Fabula; Factum; 
 Piper: 114. 
 
 It has long been said that judges may 
 be Vicegerents of the Prince of Eternal 
 Peace, or they may be ministers of hell. 
 Governments go up or down with Juris- 
 prudence, which may be destroyed by 
 judges. A good government cannot come 
 from a bad judiciary. All history shows 
 that a government that gives bad judges 
 shares the fate of him who "offends little 
 ones." High judges are all powerful and 
 they make laws of immunity for them- 
 selves. And they have made a law that 
 those who offend them or their class will 
 he prosecuted through the forms of the 
 law, and viciously and maliciously. Ex- 
 amples of this may be found in the history 
 and the personnel of the judges in our 
 largest cities. The Tweed Ring of New 
 York required dependent and obsequious 
 judges. In some of the cities judges have 
 no following among lawyers as lawyers ; 
 in many cases they are notoriously igno- 
 rant of law, and are only wise in politi- 
 cal trimming, and securing the appoint- 
 ment which- was made to- please the con- 
 gressional leaders of the party in their 
 state, or to win the support of some jour- 
 nal or favorite, or other political instru- 
 mentality. The ignorant judge is a curse 
 broad and deep enough, but the affliction 
 is more inflammatory when judges are 
 donees of private gifts, like cars from 
 corporations, and of automobiles that are 
 custodia legis in the hands of favorites 
 who have been appointed receivers. The 
 ignorant, political and peculating judge is 
 pointed to in metropolitan centers, where 
 juridical disorders are abundant and are 
 sought and held out to feed the cause of 
 the enemies of law and order. 
 
 The opinions of the ignorant judge are 
 destructive of the ends for which opinions 
 are required and published. In too many 
 -cases they are written to conceal the real 
 facts of the case. But it is the litigant 
 'who knows best that the grounds upon 
 -which he counted were neither correctly 
 mentioned nor considered. He is easily 
 convinced that an ignorant and a corrupt 
 
 Leading Cases. — 159. Lange. 
 
 judiciary is a contaminating influence in 
 government. The Yorkists and Tudor sov- 
 ereigns tyrannized upon the assumption 
 that they were above the law. But the 
 Stuarts met the reaction pf an abused and 
 aroused people. Bex non potest peccare 
 had limitations after the revolution. From 
 the Roman and Norman laws, .from the 
 writings of Bracton and the Earl of Pem- 
 broke were found much to support the 
 theory that those who set themselves above 
 the law commit crimes in the name of law 
 and order. What has happened in a score 
 of American jurisdictions is clearly re- 
 flected from the reports of judicial opin- 
 ions. See Windsor : 1 ; S. v. Baughman : 
 268 ; Weltmer v. Bishop : 268a. 
 
 The conflict of national and state courts 
 as to their respective jurisdictions, may be 
 gathered from such eases as M'Culloch v. 
 Maryland ; Martin v. Hunter's Lessee, 
 Cohens v. Virginia, Tarble's Case, Buck 
 v. Colbath ; Freeman v. Hows, Ableman 
 v. Booth, Neagle's Case, and the con- 
 flicts in Missouri and North Carolina as 
 to the validity of state legislation regu- 
 lating railway fares. Another line of con- 
 flict relates to what is a federal question. 
 For the defense of judges this is broad 
 and includes anything the federal court 
 declares. For the protection of title to 
 property (205 U. S. 170), of condemnation 
 for contempt (Patterson's Case), or from 
 applications of estoppel, or from sham and 
 mock proceedings, when these are clearly 
 usurpation, having the effect to establish 
 obligations that must operate in condem- 
 nation and confiscation, the private citi- 
 zen is 'told that due process of law does 
 not extend to his complaints ; or that he 
 has a right, but that it is without rem- 
 edy. Pettibone. 
 
 The condition from the cases justifies 
 the observation that American jurispru- 
 dence is lost in a vast marsh formed by 
 the silt of case law not founded on sound 
 principles. Wherever the philosophy of 
 the law is lost, there the law is lost. See 
 Observations under the title Equity. What 
 is called "American law" has grown be- 
 yond human capacity ; its literature is a 
 vast and universally foreboding mass, and 
 such as was viewed by Justinian. Also 
 one thousand years later by Bacon as he 
 looked over the wreck of the Year Book 
 system. The judges of the highest court 
 cannot agree as to what due process of 
 law is, as their opinions show. 
 
 The state courts no longer have respect 
 for each other, nor are they respected by 
 many of the federal courts ; these permit 
 the state courts to act on such cases as is 
 deemed expedient from case to case. See 
 Genessee Chief (1851). The encroach- 
 ments of the federal judiciary are constant 
 and are rapidly wearing away state lines, 
 which sooner or later must be abandoned 
 agreeably to the maxims : In prcesentia 
 majoris, cessat potentia minoris and Cujus 
 est instituere ejus est abrogare. 
 
80 
 
 DATUM POSTS. 
 
 Leading Oases.— 159. Lange. 
 
 Stability of law can only come from a 
 properly selected federal judiciary. In its 
 selection the Bar Association, or the judg- 
 ment of lawyers, must pass oh those from 
 whom selections are made. Lawyers, not 
 special and political interests, should nom- 
 inate eligibles from which appointees are 
 named. 
 
 It was Saint Paul who placed most con- 
 fidence in King Agrippa because he had 
 been among the apostles' accusers so long 
 and knew their manners and customs so 
 well. 
 
 Procedure partakes of government ; if 
 government is constantly changing then so 
 is procedure ; if so, then all branches of 
 the law dependent thereon are unsettled. 
 There are those who believe that Con- 
 stitutions and Acts of Congress can make 
 a citizenship out of the peoples of Africa 
 and of Asia equal to the Caucasian of 
 Europe ; that femininity can likewise be 
 made equal for all purposes to masculini- 
 ty ; that classes from luxury and refined 
 amusements without any stability or fixed- 
 ness of purpose can govern a great em- 
 pire and its remote and turbulent prov- 
 inces ; that the owner of a mind trained 
 only for war would nevertheless make a 
 good doctor, or e converso; that the po- 
 litical favorite and trimmer ignorant of 
 legal fundamentals or the datum posts of 
 the law can nevertheless make a good 
 judge. 
 
 The drift of American jurisprudence is 
 indicated in Windsor : 1, and following 
 cases. The attempt to write, to teach and 
 to administer it without regard to the 
 fundamental principles, its datum posts, 
 must soon demand attention from construc- 
 tive statesmen. 
 
 160. HASTINGS V. LTJSK (1839), 22 
 Wend. 410, 34 Am. Dec. 330-340, n. ; 
 Bigl. L. C. Torts, 121, ext. n. (attorney 
 liable for malice). 
 
 Privilege of counsel in argument; liability 
 for defamation. Hastings. Have abso- 
 lute immunity in England. Munster v. 
 Lamb (1884), 11 Q. B. Div. 588, 7 Kill. 
 Cas. 714-731, 23 Am. Law Reg. (N. S.) 
 12-25, n. ; Burdick, Torts, 233, Ames, 
 430 ; Tiede. Pol. Power ; Harrison. 
 
 Scandal and impertinence in pleading. 
 Rosen : 92. Remedy for. Sto. PI. 266- 
 270, 867. 
 
 Is not actionable. Gore v. Condon (1898), 
 87 Md. 368, 67 Am. St. 352, n., 40 L. R. 
 A. 382. See Randall v. Hamilton (1893), 
 45 La. Ann. 1184, 22 L. R. A. 649, n. ; 
 Sherwood v. Powell (1895), 61 Minn. 
 479, 52 Am. St. 614, n. ; Rice i. Coolidge 
 (1876), 121 Mass. 393, 23 Am. Rep. 279; 
 Whitney v. Allen (1871), 62 111. 472. See 
 Malicious Acts. 
 
 Privilege of witnesses. Allen v. Crofoot 
 (1829), 2 Wend. 515, 20 Am. Dec. 647; 
 cited, Cool. Torts, 1 Kinkead, Torts. See 
 Defamation. 
 
 Attorney acting bona fide under orders 
 of court not liable for contempt. 190 
 V. S. 1. 
 
 Leading Cases. — 
 
 161. BBOWH V. SWINEFORD (1876) 
 44 Wis. 282, 26 Am. Rep. 580, 7 Cent' 
 L. J. 268, 158 N. Y. 546, 46 L. R a' 
 650, 21 Colo. 338 ; 11 Am. Cr. Rep. 115 • 
 West Chicago R. R., 165 111. 302: cases-' 
 North Chicago R. R., 165 111. 494; Par- 
 ker, 20 R. I. 378, 78 Am. St. 878, n. 
 (defamatory opening statement) ; S v 
 Irwin (1903), 9 Idaho 35, 60 L. R. A 
 716; P. v. Fielding (1899), 158 N. Y. 
 542, 70 Am. St. 495, 46 L. R. A. 641- 
 672, ext. n., 11 Am. Cr. Rep. 88-124- 
 White, 87 Miss. 564, 112 Am. St. 460. ' 
 Argument; irrelevant and abusive argument 
 should be restrained. Brown ; Martin v. 
 S. (1886), 3 Miss. 505, 56 Am.. Rep. 812- 
 824, n. ; Hall v. U. S. (1893), 150 U. S. 
 76 (37 L. ed. 1008, n.) ; Graves v. U. S., 
 id. 118, 1021: cases; 1 Bish. Cr. Proc. 
 311, 9 Crim. Law. Mag. 741-774, Cool. 
 Const. Lim. 408-411 ; P. v. Fielding ; Ran- 
 chau, 71 Vt. 142, 76 Am. St. 761, n.; 
 Haupt, 108 Ga. 53, 76 Am. St. 19, n. ; Mc- 
 Donald, 126 111. 130, 9 Am. St. 559-570, 
 ext. n. ; Blackman, 108 La. 121, 92 Am. 
 St. 377, n. : cases ; 12 Am. Crim. Rep. 170, 
 583, 256 (court should restrain). 
 Prompt exceptions to, necessary. West Chi- 
 cago, etc. R. R. (extremely strict rule held 
 to apply). See 46 L. R. A. 644; Gutzman, 
 114 Wis. 589, 58 L. R. A. 744 ; S. v. Ty- 
 son (1903), 133 N. C. 692 (objection — 
 exception must be prompt before verdict. 
 Dissenting opinions). 
 Objection, ruling and an exception, must all 
 be noted. 165 111. 302, 304 (complainant 
 held responsible if court fails or refuses 
 to rule). Lex non cogit ad impossibilia 
 does not apply here. One has the right to 
 object. West Chicago R. R., supra; 2 
 Encyc. PI. & Pr. 750, 1st ed. 
 Ruling of court essential. Murray, 167 111. 
 368, 374 ; North Chicago v. Southwick 
 (objection, ruling and exception must ap- 
 pear) ; Warder v. Leary (1891), 137 111. 
 319; Elgin R. R. v. Fletcher (1889), 128 
 111. 619 (attention of the judge must be 
 aroused and even demanded). Arbitrary 
 conduct of a judge can defeat a review 
 under these two strict decisions. On prin- 
 ciple, the review should be favored, and 
 for reasons found in the rule that judicial 
 action induced upon sham and groundless 
 suggestions is a contempt. Graver : 103. 
 Mode of objecting to the style of argument 
 of counsel. C. v. Goldstein (1902), 180 
 Mass. 374, 91 Am. St. 311. Exception to 
 improper argument is sufficient. 
 Need not ask for instruction to court to dis- 
 regard it. W. U. Tel. Co., 95 Tex. 645. 
 648: cases. See C. v. Worcester (1886), 
 141 Mass. 58 ; Lunsford v. Dietrich 
 (1890), 93 Ala. 565, 30 Am. St 86 (in- 
 struction should have been asked). 
 Failure to testify; comments relating to is 
 a oross impropriety. Dunn, 118 Wis. 82 ; 
 Wilson: 154; Hall v. U. S. (1893), 150 
 U. S. 76. 
 163. BSDGGEB V. STATE INVEST- 
 MENT CO. (1878), 5 Sawyer (U. S.) 304; 
 4 Fed. Cas. 473 ; Fost. Fed. Prac. 11, 74 
 (multifariousness) . 
 Cited, § 138, Hughes' Proc. ; § 40, Gr. & Rud. 
 
DATUM POSTS. 
 
 81 
 
 Leading Cases. — 162. Brugger. 
 
 Joinder of causes under codes. A contract 
 may be reformed and a remedy afforded 
 upon it in the same action. Brugger ; 
 Miller, S3 Ala. 274, 3 Am. St. 722 ; 1 
 Pom. Eq. 353-357 ; Butler, 60 Conn. 170, 
 12 L. R. A. 273 n. ; Barnes, 75 la. 11, 9 
 Am. St. 450, n. ; 1 Encyc. PI. & Pr. 183 ; 
 65 Am. St. 484-485 : cases ; Bliss. PI. 116 ; 
 Beronio, 129 Cal. 232, 61 Pa. 958, 79 Am. 
 St. 118 ; Christian, 6 Idaho 87, 53 Pa. 
 211, 96 Am. St. 256 n. (mortgage re- 
 formed and foreclosed) ; Cryps. 
 Equity attaching for one purpose attaches 
 for all. Middleton Bk., 3 Conn. 135, 6 Am. 
 Dec. 164-168, n. ; Ferguson : 264 ; Hazen, 
 65 Kans. 38, 93 Am. St. 276, n. ; Dickin- 
 son : 77 Ark. 570, 113 Am. St. 170 ; 201 U. 
 S. 245. 
 
 Owners of property may appear in fed- 
 eral courts and claim it without regard to 
 citizenship. Freeman : 287 ; Buck, § 53 ; 
 convenience. See Intervention. 
 
 A transaction, a breach of contract and 
 also a tort causing damage may be joined 
 in one count. Maisenbacker (1899), 71 
 Conn. 369, 71 Am. St. 213, n. ; King v. 
 C. M. R. R. ; Emerson v. Nash ; King v. 
 Baldwin, 17, 8 Am. Dec. 415-428 ; Smith- 
 son v. Smithson (1893), 37 Neb. 533, 40 
 Am. St. 504, n. ; Bliss, PI. 11, 96, 97 ;' 1 
 Pom. Eq. 114, 179, 181, 182, 223-242, n., 
 275. 
 Creditor may sue debtor and his several, 
 distinct, fraudulent grantees. Fellows v. 
 Fellows (1825), 4 Cow. (N. Y.) 682, 15 
 Am. Dec. 412 ; McGowan v. Remington 
 (1849), 12 Pa. 56, 51 Am. Dec. 584-590, 
 est. n. 
 Ex contractu and ex delicto counts may be 
 joined, when. Woodbury v. Deloss (1873), 
 65 Bost. (N. T.) 501, 12 Mor. Min. Rep. 
 114 ; 1 Encyc. PI. & Pr. 110-210 ; Louis- 
 ville, etc. R. R. v. Gaines (1896), 99 Ky. 
 411, 59 Am. St. 465, n. ; Garland v. Davis. 
 See Recoupment. 
 Criminal procedure; joinder of counts; can- 
 not join, distinct felonies, but may misde- 
 meanors. Ben v. S. (1853), 22 Ala. 9, 58 
 Am. Dec. 234-250, ext. n. ; C. v. Shutte 
 (1889), 130 Pa. 272, 17 Am. St. 773, n. ; 
 S. v. Fitzsimmons (1893), 18 R. I. 236, 
 49 Am. St. 766; 1 Bish. Cr. Proc. 421- 
 431, 443-453 : cases, 1 Encyc. PI. & Pr. 
 163-180; P. v. Sullivan (1903), 173 N. 
 Y. 122, 93 Am. St. 582, n. 
 The same crime may be charged in different 
 forms and words in different counts. La- 
 Salles v. S. (1892), 90 Ga. 347, 35 Am. 
 St. 216, n. ; 93 Am. St. 582, n. Contra in 
 civil cases. Sturges : 111. Joinder of ac- 
 tions. 1 Chit. PI. 221-229. 
 163. STETSON V. XEMFTON (1816), 13 
 Mass. 272, 7 Am. Dec. 145 ; stated, Tyler 
 v. Pomeroy, 1 Wat. Tres. 504, 6 Rob. 
 Prac. 727, Throop, Pub. Off. 740 ; cited, 
 1 Wat. Tres. 504, 505, 511, Shear. Neg. 
 137, Burr. Tax. 13, 301, 370, Blackw. Tax. 
 Tit. q.v. Cool. Tax. q.v., 2 Desty, Tax. 
 644, 1123, 1105, Dill. Corp., Beach, q.v. 
 Cited, §§ 27, 186, 239, Hughes' Proc. 
 Stetson stated: Officers; when liable in 
 
 6 
 
 Leading Cases. — 163. Stetson. 
 
 trespass. In 1814, British forces were 
 ravaging the coast of Massachusetts, 
 and Fairhaven was subject to attack. At 
 a town meeting $1,200 was voted, "for the 
 payment of additional wages allowed the 
 drafted and enlisted militia of said town 
 and other expenses of defense." S. was 
 not present at the meeting. His chaise 
 and harness were levied upon and sold to 
 pay his share of the tax. He sued the 
 collector in trespass, and recovered. 
 
 Under a statute, "Providing for the 
 poor, for schools, for the support of public 
 worship and other necessary charges," a 
 town cannot render itself liable to do what 
 is expressly the duty of the national gov- 
 ernment ; it must raise, equip and main- 
 tain militia, and defend the land from in- 
 vasion. "Necessary charges" in the above 
 statute is no authority for a town to do 
 what is imposed on other governments and 
 functions of government. Tyler v. Pome- 
 roy ; Stetson ; Expressio unius, etc. Coun- 
 ty commissioners cannot lease county 
 property without statutory authority. S. 
 ex rel. Scott v. Hart, 144 Ind. 107, 33 L. 
 R. A. 118-122, ext. n. 
 Assessors are liable for levying taxes upon 
 void items in the assessment, although 
 there are valid items also. Stetson ; Eames, 
 sub, Savacool : 164 ; Six Carpenters' ; Lib- 
 by v. Burnham, 15 Mass. 144 ; stated, 1 
 Wat. Tres. 505 ; Drew ; Atwell v. Zeluft 
 (1872), 26 Mich. 118.; Cool. Tax. 800, 
 2d ed. 
 Setting a wrongful thing in motion and caus- 
 ing injury is actionable. Stetson ; Ashby ; 
 "Squib Case" ; Thomas (Drug) ; Burr. 
 Tax. 300; Cool. Tax. 790 (2d ed. 213); 
 Wall v. Trumbull, 16 Mich. 228: cases; 
 Drew; Nachtrieb v. Stoner, 1 Colo. 429. 
 Taxation. Taxation must be authorized by 
 valid legislation. Stetson ; Loan Ass'n ; 1 
 Wat. Tres. 504, 505 ; Burr. Tax. 13 ; Wel- 
 ty on Assessments, 220-229. And the 
 power is strictly construed. Stetson ; Law- 
 rence : 132 ; Welty, Assess. 
 Collectors of taxes, their liability. Savacool ; 
 1 Wat. Tres. 504-514; Pennock v. Coun- 
 ty ; Herm. Ex. 418 ; 2 Desty, Tax. 756- 
 762. See Taxation. 
 Vitro- vires acts of officers do not bind cor- 
 poration. Shear. Neg. 137 ; Hill v. Bos- 
 ton : cases. Tyler. 
 Assessors are liable for laying an illegal tax 
 and thus causing injury. Stetson ; "Squib 
 Case"; Inglee v. Bosworth (1828), 5 Pick. 
 493, 16 Am. Dec. 419, Cool. Tax. 790, 2d 
 ed. : cases; Dickinson v. Billings (1855), 
 4 Gray, 42; Judd v. Thompson (1878). 
 135 Mass. 553 ; Nachtrieb ; Herm. Ex. 418 r 
 Williams v. Brace (1824), 5 Conn. 190 
 (instructive case). Or for acting mali- 
 ciously and corruptly. Sub, Lange : 159. 
 Assessments must be made within the time 
 specified. Welty, Assess. 224 ; Thames 
 Co., 7 Conn. 550 (assessments must be 
 within the time specified) ; FJetcher : 18 ; 
 Cool. Tax. 415 ; Westfall, 49 N. Y. 349 ; 
 1 Desty, Tax. 607 (must be within time 
 
82 
 
 DATUM POSTS. 
 
 Leading Cases. — 163. Stetson. 
 
 fixed for assessing) ; Freeman, 15 Pick. 
 44; P. v. Moore (1877), 1 Idaho, 666- 
 670 ; Magna Charta ; Drew, supra; Wall 
 v. Trumbull (1867), 16 Mich. 245. A 
 court or tribunal must act at terms speci- 
 fied. Sub, Owen v. Weston ; Wirthington, 
 7 Pick. 106; Gage v. Currier (1826), 4 
 Pick. 399 ; Little, 10 Pick. 543. 
 
 Towns cannot tax for objects for which the 
 state should tax. Stetson : 163 ; Loan 
 Ass'n ; Cool. Tax. 140-163. 
 
 Selectmen are liable for levying an illegal 
 tax. Drew, supra; Cool. Tax. 554 ; Kirk- 
 wood v. Miller ; Westfall ; Van Rensselaer 
 v. Witbeck, 3 Seld. (N. Y.) 577; Thames 
 Mfg. Co. 
 
 JPart of taxes legal and part illegal. Since 
 the authority is statutory, if any part is 
 illegal, all is. Burrough, Tax. 301 ; Mc- 
 Pike v. Pen (1872), 51 Mo. 63 ; Kirkwood, 
 6 Mass. 54,0 ; 2 Desty, Tax. 11 : cases. 
 (A tax can not be valid in part and void 
 in part.) A trespass cannot be appor- 
 tioned. Burr. Tax. 301. Six Carpenters'. 
 
 Joint trespassers. Kirkwood ; Stetson ; St. 
 Helen's Smelting Co. v. Tipping. 
 
 3.64. SATACOOL V. BOUGHTEN (1830), 
 5 Wend. 170, 21 Am. Dec. 181-209, ext. 
 n., Bigl. L. C. Torts, 241-285, ext. n., Pat- 
 tee, Cas. Torts, 327 ; Brwin, Cas. 257 ; 
 Connor : 104 U. S. 228, 238 ; Aid. Jud. 
 Writs, § 106, n., 168 Mass. 193, 60 Am. 
 St. 379, 1 Wat. Tres. 465, n., 1 Freem. 
 Ex. 100, 101, 81 111. 329, Mech., Throop, 
 Pub. Off., Mech._Ag., Cool. Torts, Bish., 1 
 Wat. Tres., Herm. Ex. 151-153 : cases ; 2 
 Desty, Tax. 761 ; 1 Kinkead, Torts, 177 : 
 cases ; S. v. Weed. 
 
 Cited, p. 13; §§ 27, 42, 49, 85, 98, 101, 
 Hughes' Proc. ; §§ 99, 122, Gr. 6 Rud. 
 
 Officers are bound to obey process. Where a 
 person does an act by command of one 
 exercising Judicial authority, the law does 
 not suppose that he acted from any 
 wrongful or improper motive, because it 
 was his bounden duty to obey. Qui jussu 
 judicis, etc. Bro. Max. 93. The law will 
 not punish what it commands. Necessitas 
 quod cogit defendit. 
 
 Regular process will always protect an officer 
 executing it. Savacool ; Cool. Tax. 798 ; 
 Mech. Pub. Off. 689-694; cases; 2 Smith, 
 Lead. Cas. 1042, 9th ed. ; Crepps v.-Towns- 
 ly-Myrick Co., 58 Ark. 181, 41 Am. St. 
 97, n., Henline v. Reese (1896), 54 Ohio 
 St. 599, 56 Am. St. 736 (officer not bound 
 to execute, but if he does it is an absolute 
 protection if pleaded in defense) ; Housh 
 v. P. (1874), 75 111. 487, 2 Am. Crim. 
 R. 487 ; Rice, 70 Tex. 613, 8 Am. St. 
 630, n. 
 
 Officer knowing judgment is void is not pro- 
 tected. If the officer knows the court is- 
 suing the process has no jurisdiction, 
 then he is not protected ; e. g., if a con- 
 stable learns that he is to arrest or in- 
 terfere with an ambassador or consul upon 
 process Issued by a state court, then he is 
 not protected. Tellefsen v. Fee (1897), 
 168 Mass. 188, 60 Am. St. 379 : cases, 45 
 L. R. A. 481, n. (jurisdiction and power 
 of consuls) ; Grace v. Mitchell (officer must 
 
 Leading Gases. — 164. Savacool. 
 
 act bona fide) ; 1 Kinkead, Torts, 179 : 
 cases (when officer has knowledge dehors 
 the writ) ; Bish. Torts, 795 ; Sprague 1 
 Wis. 387 ; Mitchell, 13 How. 115 (military 
 orders must be legal) ; Riggs v. S. (1866) 
 3 Cold. 85, 91 Am. Dec. 272, 3 Crim. Def! 
 257 (soldiers must obey orders if legal) ; 
 Leachman : 81 111. 324 (officer cannot 
 tamper with his process and then defend 
 under it). 
 
 Void judgment is no protection, as where 
 there was no jurisdiction of a defendant. 
 Chetelat, 7 Colo. Ap. 68 ; Borden. 
 
 What is regular process. Void items com- 
 mingled with valid ones are not. Barnes 
 v. Johnson (1862), 4 Allen, 382, Shear. 
 Neg. 171 ; cases ; Leachman, supra. Omis- 
 sion of essential name vitiates process. 
 Capps v. Leachman (1897), 90 Tex. 499, 
 59 Am. St. 830 ; Douglas v. Whiting (pro- 
 ceedings collaterally attacked) ; St. Louis 
 Co., 138 Mo. 533, 60 Am. St. 565, n. (is 
 the defense of the officer and not of a 
 third person). 
 
 Burden of proof is on officer to show legal 
 process. See J'Anson : 91 ; Virginia Cou- 
 pon Cases : 285a ; Piper : 114. He 
 must allege it. De non apparentibus, 
 etc. ; an authority must be pleaded. 
 J'Anson ; Res adjudicata ; and he must 
 prove it. Actore, etc. : 2 Gr. Ev. 629. One 
 of the purposes of a record is to afford 
 protection to officers acting under it 
 J'Anson ; Rushton : cases ; Howard v. S. ; 
 Nixon ; Six Carpenters' : cases. See 
 LiTEEATtTEE, Hughes' Conts. 
 
 Defective plea aided by waiver. Deitsch. 
 
 Judicial power; immunity of, from liability. 
 Lange : 159 ; Rex non potest peccare. Of 
 governmental agencies. Hill v. Boston. 
 Officers; their liability. 1 Kinkead, Torts, 
 170-181 : cases. 
 
 Justification defenses must be pleaded. 
 See Justification ; J'Anson : 91. 
 
 165. SIX CAEPENTEES' CASE (Van* 
 v. Newman) (1611), 8 Coke, 146, 1 Sm. 
 Lead. Cas. 257-267, 8th ed. ; 11th ed. (re- 
 views English cases) ; Chase, Torts, 155, 
 Ames, Torts, 270, Wat, Tres. 493, 2 id. 
 790-791, Bro. Max. 126, 301, 302, 121 
 Ind. 233, 6 L. R. A. 736 Cool., Bish., 1 
 Add. Torts, 476, 730, 2 Gr. Ev.. q.v. 
 Freem. Ex., Herm. Ex. ; Boston, 85 Me. 
 462, 35 Am. St. 379, n. ; Allen v. Crofoot 
 (1830), 5 Wend. 506, Erwin, Torts, 481 
 (when entry is unlawful). 
 
 Cited, p. 33, Hughes' Proc. ; § 67, Gr. & Rud. 
 The law gives the public the right to 
 enter an inn. Calye's Case : Exercising 
 this right and license six carpenters en- 
 tered an inn and called for drink, which 
 they paid for. Afterward they called for 
 more, for which they refused to pay. 
 Held; they were trespassers ab initio. 
 Acta exteriora. 
 
 Trespassers ab initio. Malcom v. Spoor 
 (1845), 12 Met. 279, 46 Am. Dec. 675, 
 Bigl. Lead Cas. Torts, 328, n. ; Aid. Jud. 
 Writs, 179 (entrusting a drunken person 
 with goods levied upon constitutes the 
 officer a trespasser ab initio) ; Barrett v. 
 White (1825), 3 N. H. 210, 14 Am. Dec. 
 
DATUM POSTS. 
 
 83 
 
 Leading Cases. — 165. Six Grp'trs. 
 
 352 n. (reviewing Six C. Case. Officer 
 abusing chattel levied upon) ; Lamb v. 
 Day (1836), 8 Vt. 30 Am. Dec. 479 
 (abuse of power by an officer). S. P., 
 Cressy v. Parks (1883), 75 Me. 387, 46 
 Am. Rep. 406; Dehm v. Hinman (1888), 
 56 Conn. 320, 322, 1 L. R. A. 374, Ander- 
 son v. Cowles (1899), 72 Conn. 335, 77 
 Am. St. 310 (failure to return process 
 renders officer liable). S. P., Buller, N. 
 P. 23 ; 6 Bac. Abr. Trespass, B. 
 
 One exercising an authority given by law 
 and abusing it, is a trespasser ab initio; 
 Malcom ; Six Carpenters' Case ; Barrett ; 
 Lamb. Officers executing process are gov- 
 erned by the principle in the Six Car- 
 penters' Case. Dehm : cases. S. P. ; Bar- 
 rett ; Anderson : cases ; Lamb. 
 
 Officers must return process, else they are 
 not protected under it. Tubbs v. Tukey 
 (1849), 3 Cush. 438 J 50 Am. Dec. 744; 
 Munroe v. Merrill (1856), 6 Gray 236 
 irationale of rule stated) ; Wiggin v. At- 
 kins (1884), 136 Mass. 292 (officer liable 
 in an attachment case). Paine v. Farr 
 (1874), 118 Mass. 74; Wright v. Marvin 
 (1887), 59 Vt. 437; Oystead v. Shed 
 (1815), 12 Mass. 505 ; Williams v. Ives 
 (1857), 25 Conn. 568 (Six Carpenters' 
 'Case ; stated and applied in an attach- 
 ment case) ; Monarch v. Bird (1879), 63 
 Ala. 500 ; Dehm ; Anderson. A return of 
 process is essential for a plea of justifica- 
 tion. 6 Bac. Abr., Trespass, B., quoted in 
 77 Am. St. 310. 
 
 .Process must issue for protection of the offi- 
 cer. Blair: 170. And it must be suffi- 
 cient. Howard v. S. ; Savacool. 
 
 Proceedings for failing to make a return. 
 Swenson, 10 So. Dak. 188, 66 Am. St. 
 712, n. (plaintiff's remedies). 
 
 Officers who abuse their powers can make 
 no defense of justification. Crepps : 113. 
 See Lange. The importance of the record 
 for protection also appears from the above. 
 Savacool cases ; J'Anson ; Tarble : 247 ; 
 those who have no respect for the law can 
 take no advantage under the law. Armory. 
 166. HOWARD v. S. (1899), 121 Ala. 21, 
 25 So. 1000, 11 Am. Crim. Rep. 664. 
 
 Cited, §§ 21, 22, 28, 38, 49, 70, Hughes' Proc. 
 
 ■One may resist a void warrant; this, if rest- 
 ing on a conclusion of law, is void, and 
 will not protect an officer executing it. 
 A warrant which as a cause for arrest, re- 
 cites : "Complaint, on oath, having been 
 made before me that the offense of threat- 
 ening breach of the peace has been com- 
 mitted," does not state a crime, is not 
 a sufficient peace warrant and is void. 
 Crepps : 113. 
 
 An order granting a new trial, based 
 solely on the legal conclusion that a 
 special verdict is inconsistent and evasive, 
 is not an order made in the exercise of 
 the court's discretion. Miller v. Casco 
 (1903), 116 Wis. 510. 
 
 A sufficient record necessary to protect 
 officers executing process is one of the 
 conserving principles of procedure. See 
 Conclusions of Law. U. S. v. Cruik- 
 
 Leading Cases. — 166. Howard. 
 
 shank: 232; J'Anson: 91; Tarble's Case: 
 
 247 ; Six Carpenters : 165. 
 It is not a crime to resist one who endeavors 
 
 to make an arrest under a void warrant. 
 
 See Abbest ; Noles v. S. ; Housh, 75 111. 
 
 487, 2 Am. Crim. Rep. 487. 
 
 Warrants ; process must be sufficient to 
 
 constitute regular process. Savacool : 164 ; 
 
 Housh. 
 Sufficient allegations requisite to confer juris- 
 diction to protect officers. Semayne's C. ; 
 
 Fisher, sub, Rushton. 
 
 167. ALLEN V. WRIGHT (1838), 8 Car. 
 & P. 522 (34 B. C. L. R.), Bigl. L. C. 
 Torts, 265, 285, ext. n., Erwin, Cas 280, 1 
 Wat. Tres. 315 : cases, 4 Mews' E. C. L. 
 1925, citing Price v. Seely, Fox v. Gaunt, 
 Timothy v. Simpson, R. v. Sherlock, R. v. 
 Cumpton, 9 Mews' E. C. L. 710, citing 
 Brown v. Chapman, West v. Smallwood. 
 
 Cited, § 19, Hughes' Proc. ; §§ 152, 294- 
 296, Gr. & Rud. 
 
 Arrests; law of. Allen: 167; Tiede, Pol. 
 Power, note 61 Am. Dec. 151-164 ; 1 Bish. 
 Crim. Proc. 155-218; 177 U. S. 538: 
 cases ; Bouv. Die. 
 
 Private person may arrest for a felony and 
 take the accused before a judicial officer. 
 Burk, 179 Pa. 539, 57 Am. St. 607. 
 
 With and without a warrant. Palmer R. R. 
 92 Me. 399, 69 Am. St. 513 ; S. v. Lewis 
 (1893), 50 Ohio St. 179, 9 Am. Cr. Rep. 
 49-62 ext. n. 
 
 What information should be imparted at the 
 time. S. v. Taylor (1893), 70 Vt. 1, 42 
 L. R. A. 673-684, ext. n., 67 Am. St. 647 ; 
 Semayne's; Fleetwood v. C. (1882), 80 
 Ky. 1, 4 Am. Cr. Rep. 36, n. (officer 
 should disclose his identity if possible and 
 show his warrant unless the charge is 
 felony) . 
 
 Bight to resist an unlawful arrest. S. v. 
 Davis, 53 S. C. 150, 69 Am. St. 845 ; 
 John Bad Elk, 177 U. S. 529 ; Howard v. 
 S. : 166. 
 
 Bight to break and enter doors. Semayne's ; 
 Domus sua. 
 
 Privilege from arrest. Dunlap. Members of 
 legislature. Tucker, Const. 206. 
 
 Things taken from accused persons; admissi- 
 bility in evidence. Counselman : 178. 
 Adams v. New York (are competent). 
 
 Arrest in civil suits. 1 Fost. Fed. Prac. 22, 
 370. 
 
 Injunction to restrain illegal arrest. Id. 
 215. Arrest of persons upon a second 
 warrant pending hearing upon return to a 
 writ of habeas corpus. Id. 367. 
 
 False imprisonment ; restraint of per- 
 sons for the peace, security or health of 
 the community ; malicious abuse of proc- 
 ess. 1 Kinkead, Torts, 212-235. 
 
 168. DUNLAP v. CODY (1871), 31 Iowa 
 260, 7 Am. Rep. 129-136, n. ; Brown, 
 Jurisdic. 
 
 Cited, §§ 147, 151, 325, Hughes' Proc. 
 Acquisition of jurisdiction by fraud, will 
 
 vitiate. Dunlap ; 1 Bailey, Juris. 163. 
 
 Executio juris non habet injuriam; Ex 
 
 dolo malo, etc. 
 Process served by fraud will be set aside. 
 
 Dunlap; Holker, 141 Mo. 527, 64 Am. 
 
84 
 
 DATUM POSTS. 
 
 Leading Oases.— 168. Dunlap. 
 
 St. 524, n. See Bro. Max. 439 ; Ex dolo 
 malo, etc. 
 
 Parties, attorneys and witnesses attending 
 court are exempt from service of process. 
 Fries; Cole v. Hawkins (1738), And. 275, 
 Stra. 1098, Aid. Jud. Writs, 116 ; U. S. v. 
 Edme, 9 Ser. & R. 147 ; stated. Aid. Jud. 
 Writs, 116 Contra eases ; Hoffman, 113 
 Mich. 109, 67 Am. St. 458, n. ; Murray, 
 122 Iowa 188, 64 L. R. A. 534 : cases. 
 
 Witnesses cannot be arrested or served with 
 process while attending court. 1 Gr. Ev. 
 316. Nor while voluntarily attending. 
 Malloy v. Brewer (1895), 7 S. Dak. 587, 
 58 Am. St. 856 : cases ; Ela, 68 N. H. 
 312; Kaufman v. Kennedy (1885), 25 
 Fed. Rep. 785. 
 
 Members of the legislature and other per- 
 sons are not privileged. Berlet, 67 Neb. 
 75, 60 L. R. A. 609, n., 108 Am. St. 616. 
 n., 1 Tucker, Const. 206 (members of 
 congress privileged). 
 
 Non-resident parties; when they may be 
 served. Parker, 136 N. Y. 685, 32 Am. St. 
 770, a. ; 20 L. R. A. 45, n. ; Sweet, 166 
 Mass. 332, 55 Am. St. 406, n. ; 42 Cent. 
 L. J. 307 (cannot be). Contra: Baisley, 
 113 Mo. 544, 33 Am. St. 726, n. ; Holyoke 
 Co., 55 Fed. Rep. 593, 21 L. R. A. 319, 
 n. ; Brooks, 4 Fed. Rep. 166. See Aid. 
 Jud. Writs. 
 
 Exemption from service of process. Worth, 
 56 S. C. 56, 76 Am. St. 524-543, ext. n., 
 64 L. R. A. 534 : cases. 
 
 A legal act cannot be done by illegal 
 means. Ilsley ; Quando jus, etc. ; Rut- 
 land's (Countess of) Case, 6 Rep. 53 ; 
 stated, Bro. Max. 
 
 The due administration of justice is 
 respected and vindicated by courts. See 
 Pettibone. 
 
 169. HSLEY v. NICHOLS (1831), 12 
 Pick. (Mass.), 270, 275, 22 Am. Dec. 425, 
 n., Aid. Jud. Writs, 175; 11 Rul. Cas. 
 643 ; 203 U. S. 
 
 Quando aliquid prohibitur, etc. A legal act 
 cannot be done by illegal means. Bro. 
 Max. 488 ; Webb v. Ins. Co. ; Six Car- 
 penters' ; Blair : 170. A trespasser can- 
 not set off with the benefits of his tres- 
 pass. Bull ; Id tantum, etc. 
 
 Property cannot be seized upon the 
 person. Salus populi, etc. See Arrest ; 
 Search ; Green : 90 ; Duress ; Watkins 
 v. Baird ; Sasportas v. Jennings ; Executio 
 juris non habet injuriam. 
 
 If documents are illegally seized and 
 offered in evidence the court will only 
 consider their competency. 1 Gr. Ev. 
 254a ; Nemo tenetur, etc. ; Adams v. N. Y. 
 If doors are broken to illegally serve 
 process, this will not vitiate the service, 
 but is a ground of liability against the 
 sheriff. Bro. Max. 438. Contra: Ilsley; 
 Semayne's. 
 
 What cannot be done directly cannot be 
 done indirectly. Ex parte Miller (1900), 
 124 Ala. 130, 30 So. 611, 87 Am. St. 49 
 (enjoined person cannot by subterfuge 
 violate it) ; 192 U. S. 305 ; Webb ; 
 Graham v. Folsom. See Pettibone. 
 
 Leading Cases. — 
 
 170. BLAIR v. READING (1881), 99 HL 
 
 600. Galpin v. Page. Cited, § 333, 
 
 Hughes' Proc. ; §§ 61, 99, Gr. & Rud. 
 Powers of judges in vacation. All tribunals 
 
 ■must act at time and place provided for. 
 
 Fletcher v. Trewalla ; Drew v. Davis. See 
 
 Terms of Court ; Filley v. Cody (1878) 
 
 4 Colo. 109. 
 Process must issue to protect an officer. 
 
 Blair ; Savacool. Sale without process is 
 
 void. Benton. 
 A lawful act cannot be done in an unlawful 
 
 way, e. g., carrying concealed weapons will 
 
 not authorize an unlawful arrest and 
 
 search. Pickett V. S. (1896), 99 Ga. 12, 
 
 59 Am. St. 226, n. ; Ilsley. 
 
 One of the requirements of due process 
 
 of law is a court that can convene, hear 
 
 and determine. Murray: 219. 
 Courts must act at time and place specified. 
 
 Blair ; Freem. Judg. 121 ; Bond v. Pachico 
 
 (1866) , 30 Cal. 530 ; Stetson : 163. 
 Courts must proceed judicially. Blair ; 170 ; 
 
 Windsor : 1 ; Munday : 79. 
 
 171. B.T.KEYN (1876), 2 Ex. D. 63, 13 
 Cox, C. C. 403, Snow, Cas. Int Law, 551: 
 stated, Gould, Wat. 11 ; 8 Rul. Cas. 11 : 
 cited, 1 Bish. C. L. 104, Gould, Wat. 1- 
 16, 27, 49, 64, 148. 
 
 Jurisdiction ; admiralty ; concurrent jurisdic- 
 tion with common-law courts; foreigners 
 on foreign ships. C. v. Manchester 
 (1890), 152 Mass. 230, 23 Am. St. 820- 
 841, n. (jurisdiction over tide waters ; 
 fisheries). 
 
 Admiralty and common-law jurisdiction 
 in maritime cases. Ror. Int. Law, 396- 
 404 ; Mostyn : 274. Jurisdiction over ad- 
 joining seas. 1 Kent, 26-31. 
 
 Maritime law, 3 Kent, 1-21. 
 
 172. C. v. MACLOON (1869), 101 Mass. 
 1, 100 Am. Dec. 89-110, n. ; Clark, Crim. 
 Cas. 440, 1 Bish. C. L. 115, 8th ed. ; 42 
 Ga. 43, 44 Am. St. 77, Brown, Jurisdic. 
 
 Cited, § 294, Gr. & Rud. 
 
 Venue; jurisdiction. One who does a crim- 
 inal act in one county or state may be held 
 liable for its continuous operation in an- 
 other. This is extendedly discussed i<i 
 relation to larceny. 
 
 C. v. Macloon ; R. v. Lewis ; C. v. Up- 
 richard; McNeeley, 36 W. Va. 84, 15 L. 
 R. A. 226, n. ; S. v. Hall, 114 N. C. 909, 
 41 Am. St. 822 ; citing Macloon and U. S. 
 v. Guiteau (penal and criminal laws are 
 local) ; Simpson v. S., 92 Ga. 41, 44 Am. 
 St. 75-84, ext. n. 
 
 Homicide; definition of: cases. Defendant 
 not guilty unless he did all of the acts 
 occasioning death, or aided or abetted. 
 Macloon. 
 
 Crimes committed partly in one state and 
 partly in another. Ror. Interstate Law, 
 310, 320-327 ; citing Macloon ; Brown, 
 Juris. 35 ; Mostyn ; R. v. Lewis ; Clark, 
 Crim. Cas. 431-452 ; 1 Bish. C. L. 115-117 ; 
 U. S. v. Guiteau, 1 Mackey, 498, 47 Am. 
 Rep. 247, 3 Crim. Law Mag. 680, 10 Fed. 
 161, Clark, Crim. Cas. 36: cited, 1 Bish- 
 C. L. 112, 115, Ror. Inter. Law, 321, 1 
 Crim. Law Mag. 689-716, 2 Crim. Def- 
 
DATUM POSTS. 
 
 85 
 
 Leading Cases. — 172. Macloon. 
 
 358; E. v. Brisao (1803), 4 East, 164-172, 
 7 R. R. 551, 8 Rul. Cas. 138; Bish. Cr. 
 Proc. ; Whart. Cr. PI. & Prac, Clark, Cr. 
 Proc. Hargis (1905), 27 Ky. Law Rep. 
 441, 69 L. R. A. 270-276 : cases (wound 
 in one county and death in another). 
 
 Shipboard ; high seas ; crimes com- 
 mitted on. Jurisdiction Macloon ; 1 Bish. 
 C. L. 117 ; R. v. Lewis ; 8 Rul. Cas. 1-15. 
 Homicide, felonious. 1 Bish. C. L. 613- 
 745. 
 
 Statutory division of murder into de- 
 degrees. Whitford v. C. (1828), 6 Rand. 
 (Va.) 721, 18 Am. Dec. 771-787, ext. n. 
 Crimes; jurisdiction of crimes as between 
 the U. S. and foreign nations. 1 Bish. 
 C. L. 99-144 ; 1 Bish. Cr. Proc. ; Whart. 
 Cr. PI. & Pr. ; Clark Cr. Proc. Jurisdic- 
 tion of the U. S. within state limits. 1 
 Bish. C. L. 156-181 ; Tarble's Case. Na- 
 tional jurisdiction outside the states. 1 
 Bish. C. L. 182-188. Locality of crimes 
 committed through the mails. S. v. Hud- 
 son (1893), 13 Mont. 112, 19 L. R. A. 
 775, n. 
 Venue in crime. 8 Rul. Cas. 138-149, n. 
 
 Crimen trahit personam. 
 Jurisdiction has many elements to be con- 
 sidered. A leading one is place of the 
 wrong or deliction of subject-matter. See 
 Jurisdiction ; Munday ; Mostyn : 274 ; 
 territorial jurisdiction. Milligan's ; Mos- 
 tyn (location of land) ; Windsor: 1. 
 173. R. v. LEWIS (1857), Dearsly & 
 Bell C. C. (Bng.), 182, 2 L. C. C. (B. & 
 H.) 298-303, n., 7 Cox, C. C. 277; Clark, 
 C. C. 451, 8 Rul. Cas. 4, 1 Bish. C. L. 
 112, 121. 
 Cited, § 169, Gr. & Rud. 
 Lewis stated; Manslaughter; death from in- 
 juries inflicted on high seas; foreigners; 
 jurisdiction; venue. Lewis was a French- 
 man by birth, but a naturalized citizen' of 
 the United States, and not of England. The 
 deceased, George, was a German, not a 
 subject of England. Both were sailors 
 and were serving as such on the Guy 
 Mannering, an American vessel com- 
 manded by an American master, and 
 sailed from New York for Liverpool under 
 the United States flag. During this voy- 
 age G. was subjected to much cruelty from 
 L. and others. Four days before arriving 
 at Liverpool, while yet upon the high seas 
 west of Cape Clear, in Ireland, the last 
 act of cruelty was inflicted by L. upon 
 G., from which he died in the hospital 
 upon the afternoon of the day they ar- 
 rived at Liverpool. L. was convicted of 
 manslaughter. Held, that the offense was 
 not cognizable by the law of England, 
 and that the conviction was wrong. R. v. 
 Lewis ; C. v. Macloon ; Mostyn : 274 ; R. 
 V. Anderson (1868), L. R. 1 C. C. R. 161, 
 11 Cox. C C. 198, 8 Rul. Cas. 1-15, n. 
 
 Mortal wounds given by one foreigner to 
 another upon a foreign ship, upon the high 
 seas, are not cognizable in England. 
 Lewis, venue in crime. 1 Bish. Crim. 
 Proc. 45-67 ; sub, Mostyn : 274. 
 
 Leading Oases. — 
 
 174. S. v. CONWEIl (1902), 96 Me. 172, 
 
 51 Atl. 873, 90 Am. St. 332, n. 
 Cited, p. 35; §§ 37, 42, Hughes' Proc. 
 Search warrants — issue on Sunday. The fact 
 that a search and seizure warrant is is- 
 sued on Sunday does not render it in- 
 valid. 
 Judicial and ministerial acts; distinctions. 
 Act of magistrate in issuing search war- 
 rant is ministerial and not judicial. 
 Dies Dominicus, etc., has no reference to 
 ministerial acts, but only to judicial acts. 
 By the common law, Sunday is Dies non 
 juridicus and all judicial proceedings upon 
 that day are void, but ministerial acts 
 could always be performed upon that day. 
 Heisen, 138 Cal. 216, 94 Am. St. 39; 
 Pearce, 13 Mass. 324 (arrests allowed on 
 Sunday for felony and breach of the 
 peace) ; Johnson, 34 Mass. (17 Pick.) 106 
 (limitations of Dies Dominicus, etc.) ; S. 
 v. Conwell; Mackally's Case (1613), 9 
 Coke, 65 cited, 15 Rul. Cas. (the law of 
 arrest) ; Van Vetchen : 12 Johns. 178 
 (issuing process is a judicial act). See 
 Dies Dominicus, etc. ; Hauswirth : 51 ; 
 Sunday. 
 Expressio unius, etc. Statute forbidding 
 service of process in civil cases does not 
 apply to criminal cases. S. v. Conwell. 
 Sunday laws are strictly construed. Crepps : 
 113. Without a statute there is no Sun- 
 day, except Dies non, etc. See Sunday ; 
 Hughes' Proc. 
 Service of process on Sunday is absolutely 
 void, and is not waived by a general ap- 
 pearance and asking to plead. Taylor, 3 
 East. 155, 6 R. R. 575, 13 Mews' E. C. L. 
 1970. 
 174a. LANGABIER v. FAIRBTJRY, 
 etc., R. R. (1872), 64 III. 343, 13 Am. 
 Law. Reg. (N. S.), 747, n., 16 Am. Rep. 
 550. 
 Cited, §§ 28, 51, Gr. & Rud. 
 Process may be served on Sunday, if neces- 
 sitous. Hauswirth ; Conwell ; Dies non. 
 175. WHITE v. PORT (1824), 3 Hawks 
 (N. C), 251, 1 Lead. Crim. Cas. (B. & 
 H.), 34, n. 
 Cited, §§ 120, 136, 222, 324, 325, Hughes' 
 
 Proc. ; cited, §§ 294, 296, Gr. & Rud. 
 Merger of the civil into the public wrong. 
 White, 1 Bish. C. L. 271, 267, 970 ; 1 
 Chit. PI. 130 (145, 16th Am. ed.) ; Whit- 
 ford v. S. (1887), 24 Tex. Ap. 489, 5 Am. 
 St. 896-901, n; Hamilton v. Whitridge. 
 A bigamist is liable in an action for se- 
 duction. Borden : 267. 
 Merger in civil cases. Upon this, a widely 
 cited case is Forbes v. Moffatt (1S11), 
 18 Vesey, Jr. 384, 34 Eng. R. 362, 17 
 Rul. Cas. 364-392 : cited, 2 Wash. R. P. 
 195, 517 ; 2 Kent. 2 Pom. Eq. 768-800 ; 
 1 Beach, Eq. 450 ; 2 Sto. Eq. 1036, n. ; 
 Fowler v. Fay, 62 111. 375 ; Jones, Mort. 
 848-873; James v. Morey (1823), 2 Cow. 
 246, 14 Am. Dec. 475-514, u., 3 Dev. 
 Deeds, 1318-1346. 
 Merger from Res adjudicata. C. v. Roby ; 
 R. v. Westbeer ; Bendernagle, sub, Res 
 adjudicata. 
 
86 
 
 DATUM POSTS. 
 
 Leading Cases. — 
 
 176. DIMES v. PROPRIETORS OF THE 
 
 GRAND JUNCTION CANAL (1852), 3 H. 
 Ld. Cas. 759, 16 Bng. Law & Eq. 63, Zinn, 
 L. C. Trusts, 458, 12 Beavan, 63, 2 Mac. 
 & G. 285, 2 Hall & T. 92. Newcombe v. 
 Light, 58 Tex. 141, 44 Am. Rep. 604 
 (former attorney for a party cannot sit 
 as judge). 
 
 Cited, pp. 33 ; § 5, 56, 51, 52, 147, 150, 159, 
 160, 162, 165, 166, 167, 178, 203, Hughes' 
 Proc. 
 
 Cited, §§ 46, 63, 70, 119, 134, 137, 263, Gr. 
 & Rud. 
 
 Nemo debet esse judex, etc. : No man can 
 be judge of his own dispute. Meyer, 121 
 Cal. 102, 65 Am. St. 22 : cases, 41 L. 
 R. A. 762; S. v. Board, 19 Wa'sh. 8, 67 
 Am. St. 706-722, 43 L. R. A. 317 (prohibi- 
 tion to protect) ; Oakley : 222 ; Cool. 
 Torts, 492-496 ; Const. Lim. 506-509, 6th 
 ed. ; S. v. Call (1899), 41 Pla. 442, 20 
 So. 1014, 79 Am. St. 189, n. (liberal 
 rule) ; S. v. Wall (1899), 41 Fla. 463, 
 79 Am. St. 195-205, ext. n., Brown, Juris- 
 dic. Crook, 124 Ala. 479, 82 Am. St. 190 
 (judge should refuse to sit, even if par- 
 ties consent) ; Hilton, 64 S. C. 201, 92 
 Am. St. 800, n. (parties may consent) ; 
 Perez, 41 Pla. 463, 49 L. R. A. 548, n. 
 (disqualification of judge for relationship 
 to party) ; Robert, 115 Ga. 259, 90 Am. 
 St. 108 (degree of relationship consid- 
 ered). 
 
 177. VAN SLTKE V. TREMPEALEAU 
 COUNTY INS. CO. (1876), 39 Wis. 390, 
 20 Am. Rep. 50J And. Die. 335, Suth. Stat. 
 395. 
 
 Cited, § 101, Hughes' Proc. 
 Judicial power cannot be delegated. Those 
 invested with judicial power must exercise 
 it throughout a trial. Ellerbee, 75 Miss. 
 522, 41 L. R. A. 569, n. (absence of, 
 vitiates a conviction) ; P. v. Tupper, 122 
 Cal. 424, 68 Am. St. 44 (absence of judge 
 vitiates). Judice judex delegatus, etc. 
 Presence of judge required throughout, 32 
 Colo. 127. 
 
 Official functions not a subject of con- 
 tract. See Ultra vires; P. v. Hastings: 
 144. See also cases, sub, Dimes Case. 
 
 Executive functions can be delegated. 
 A constable, however, can appoint a 
 deputy. Taylor (Cal.). But judicial 
 functions can not be delegated. Runkle : 
 120. 
 
 Failure of judge to take an oath may be 
 waived. First Nat'l Bk., 28 Wash. 239, 
 92 Am. St. 828. 
 
 Division of state power. Dennett : 145, 
 146 (clerks can not act for judges). 
 
 178. COTTNSEI.MAN V. HITCHCOCK: 
 (1802), 142 U. S. 547 (35 L. ed. 1110), 
 12 Sup. Ct. Rep. 195, Thayer, Cas. Ev. 
 1130, 3 Inter-State Com. Rep. 816, Mc- 
 clain, Const. Law, 990 ; 161 U. S. 600 ; 
 Evans, 174 Mass. 287, 75 Am. St. 316- 
 347, ext. n., Tucker, Const. 332 (first ten 
 amendments) ; Fost. Fed. Prac. 275, 366 
 (Habeas Corpus) ; 117 Wis. 388. 
 
 Cited, §§ 349, 350-352, Hughes' Proc. 
 Cited, §§ 262, 269, 271, 272, 292, 294, Gr. & 
 
 Rud. 
 Nemo tenetur seipsum accusare: No man 
 
 can be compelled to criminate himself. 
 
 Leading Cases. — 178. Counselman. 
 
 Counselman. Inter-State v. Brimson; 
 Cohen, 104 Cal. 43 Am. St. 127, 26 L. R. 
 A. 423, citing Counselman ; Emery's Case 
 107 Mass. 172, 9 Am. Rep. 22-30; Cullen 
 v. O., 24 Grat. (Va.) 624 ; Nemo tenetur 
 etc. ; U. S. v. James, 60 Fed. Rep 257' 
 26 L. R. A. 418-423 (Cohen Case denied) : 
 Gould, 99 Cal. 362. 
 
 Privilege of witness from self-crimination. 
 Fries, sub, Nemo tenetur, etc., 75 Am! 
 St. 331 ; Clark, Crim. Proc. 223. Hale v.' 
 Henkle. 
 
 Ballman, 200 U. S. 186 (not bound to 
 produce books) Jack v. Kansas, S. C. 69 
 Kan. 387, 1 L. R. A. N. S. 167-176 ext. n. 
 
 Admissibility in evidence of things taken 
 from accused persons. S. v. Edward 51 
 W. Va. 220, 59 L. R. A. 465-477, ext. n. 
 See Arrest; Allen: 167. Nemo tenetur, 
 etc. ; Adams v. New York (are .admissi- 
 ble) ; 117 Wis. 338. 
 
 179. CAROTTI v. S. (1868), 42 Miss 
 344, 97 Am. Dec. 465-472, n. 
 
 Continuity; doctrine of. When a condition 
 or state of being is once shown to exist, 
 this is presumed to continue until the 
 contrary is shown. 1 Gr. Ev. 41, 42, 
 4 Wigm. Ev. 2530. Bell v. T. ; McNagh- 
 ten ; Friend v. Ward. 
 
 In constructive notice this is an important 
 rule. Ransom: 122; Ricketson, 59 (serv- 
 ice by publication) ; Welty, Assess. 223 J 
 1 Cool. Tax. 481-487. 
 
 180. ARMORY V. DELAMIBE (or DEL- 
 AMIRIE) (1742), 1 Strange (Eng.), 504, 
 1 Smith L. C. 679-713, 11th ed. (reviews 
 English cases) ; Bigl. L. C. Torts, 88, 89, 
 1 Gray, Cas. Prop. 368, Beale L. C. 10 
 Mor. Min. Rep. 66 ; Chase, Cas. Torts, 201 ; 
 1 Gr. Ev. 34, 37, 2 Best, 11-13, Ell. 94 117, 
 227 ; Wells, Cobbey, Replev. ; Suth. Dam. ; 
 Sedgk. Dam. ; 2 Kent ; Cool., Bisn., Add., 
 Torts ; Bigl. L. C. Torts ; 2 Chit. Conts. 
 1333 ; 2 Whart. Ev. 1264, 1266 ; Rule 25, 
 Moak, Underh. Torts, id. 590; 18 Am. 
 Dec. 55-58 ; Godd. Easements, 443 (Benn. 
 ed.) ; Jones. Ev. 16, 17; Mews' E. C. L. 
 597 ; Lupton, 15 Vesey, 432, 33 Eng. Re- 
 print, 817, 10 R. R. 94 ; Suth. Dam. (cites 
 and approves Armory) ; Orser, 9 Cow. 
 687, 18 Am. Dec. 543-560, ext. n. ; Wood- 
 man, 49 N. H. 387, 6 Am. Rep. 526 (pos- 
 session is sufficient against a wrongdoer) ; 
 Hay v. Peterson (1896), 6 Wyo. 419, 34 
 L. R. A. 581-593. 
 
 Cited, p. 42 ; §§ 27, 129, 154, 155, 315, 315a, 
 326, 327, 330, Hughes' Proc. See Omnia 
 prwsumuntur contra. 
 
 Armory stated: Omnia prtBsumuntur con- 
 tra spoliatorem. A chimney sweep found 
 a diamond ring, and, to learn its value, 
 delivered it to a jeweler, who removed 
 the stone and then returned the ring 
 and offered a trifle for the stone, which 
 was refused, and suit was brought for its 
 value, but its production was withheld, 
 and of course wrongfully. Accordingly, 
 the jury was instructed to return the value 
 of a diamond of the first water that would 
 fit the socket. Res ipsa loquitur. Here 
 is a useful evidence phase, including the 
 rule that possession is sufficient against 
 a wrongdoer, a leading rule in ejectment, 
 
DATUM POSTS. 
 
 87 
 
 Leading Cases. — 180. Armory. 
 
 trover and replevin, and it is often con- 
 sidered in trespass and larceny. The case 
 is very useful in procedure. In many 
 relations it is applicable. At all events, 
 possession is a right which constitutes a 
 subject of sale of conveyance. 
 
 Presumptions from spoliation, fabrication 
 or suppression of evidence. Jones, Bv. 16, 
 19, 289, 578, 579. 
 
 In all relations its leading idea, namely, 
 he who does not obey the law can claim 
 no protection from the law, applies. Frus- 
 tra legis auxilium quwrit qui in legem 
 committit. 
 
 Value of goods. When a person has wrong- 
 fully converted property it will be as- 
 sumed as against him, if he will not pro- 
 duce it, to have been of the best descrip- 
 tion. "Every presumption is against a 
 wrongdoer." Armory. The thing speaks 
 for itself. Kearney : 211. 
 
 One should produce the best evidence pos- 
 sible. The best evidence is required. 
 Blatch, Cowp. 3; RunMe, 153 U. S. 216; 
 Dimond v. Henderson, 47 Wis. 172 ; Ivers- 
 lie : 46 ; C. v. Kane : 184. 
 
 Possession is sufficient against a wrongdoer, 
 is an important rule in ejectment, replevin, 
 conversion and trover. This rule should 
 be well understood. 1 Smith, L. C. 358, 
 11th ed. ; Rice v. Travis. 
 
 181. LAHFEAB V. MESTIEH, (1866), 18 
 La. Ann. 497, 89 Am. Dec. 658-697, ext. 
 n. ; cited, 179 U. S. 367. 
 
 Cited, §§ 6, 69, 78, 92, Hughes' Proc. 
 
 Cited, §§ 11, 19, 272, 281, 309, Gr. & Rud. 
 
 Judicial notice; takes the place of proof. 
 S. v. Main (1897), 69 Conn. 123, 61 Am. 
 St. 30; Brown v. Piper (1875), 91 U. S. 
 37, 42 ; Thayer, Cas. Bv. 91 ; Grimes v. 
 Eddy (1804), 126 Mo. 168, 47 Am. St. 
 653-668. That the World's Fair was at 
 Chicago. McCoy v. World's Colum. Ex. 
 (1900), 186 111. 356, 78 Am. St. 288. La- 
 batt, Mas. & Ser. 834. That oleomargarine 
 is an article of commerce. Shellenberger 
 v. Pa. (1897), 71 U. S. 1. Austin v. S. 
 (that cigarettes are wholly bad, and bad 
 only). See Conclusions. 
 
 183. OLIVE V. S. (1889), 8 Ala. 88, 5 S. 
 Rep. 653, 4 L. R. A. 33-44, ext. n. ; 1 Gr. 
 Ev. 4-6 ; Suth. Stat. Construe. 293-305 : 
 cases; Sto. Wade PI. 24, Notice, 1403- 
 1417. 
 
 Cited, §§ 6, 78, Hughes' Proc. ; §§ 272, 309, 
 Gr. & Rud. 
 
 Judicial notice. Suth. Stat. 293-305. 
 See Lanfear ; also, Judicial Notice ; Pro- 
 batis extremis prtesumuntur media; Res 
 ipsa loquitur. Pleading matter of Judi- 
 cial notice is forbidden. Bliss, PL 177- 
 179. Matters of law need not be pleaded. 
 Green: 90. 
 
 183. C. V. KANE (1871), 108 Mass. 423. 
 11 Am. Rep. 373-375. Cited, §§ 53, 272, 
 Gr. & Rud. Rules of evidence are often 
 affected by convenience and necessity. Re- 
 quirements for expedition and economy es- 
 tablish many rules. See § 53, Gr. & Rud. 
 
 Cited, §§ 110, 199, Hughes' Proc. 
 
 A primary rule of evidence is, that, the best 
 evidence of which a case in its nature is 
 
 Leading Cases. — 183. C. v. Kane. 
 
 susceptible must be produced. Iverslie : 
 46. 1 Gr. Ev. 82-97; 1 Whart. Ev. 60- 
 76; Whart. Crim. Ev. 152-218; 1 Bish. 
 Crim. Proc. 1080-1087 ; Queen's Case ; 53a. 
 A part of this rule is : What ought to be 
 of record, must be proved by record and 
 by the right record ; § 104 Gr. & Rud. 
 Planing Mill Co. See Okal Evidence. 
 
 A general method of proof is sometimes per- 
 missible where great prolixity is thereby 
 avoided. C. v. Kane ; King : 205 ; Par- 
 nam : 97. The presumptions of regularity 
 (Omnia prmsumuntur rite, etc.) and of 
 continuity (Carotti: 179) contribute in 
 many ways to avoid prolixity and tedious 
 delays. When it is sought to prove official 
 action in a collateral way, and the right 
 to hold the office is not the gravamen of 
 the issue, then it is sufficient to show 
 that the person acted as such officer with- 
 out showing his eligibility, election, cer- 
 tificate, oath and bond and all the details 
 of his qualifying and accepting the posi- 
 tion. 1 Gr. Ev. 41, n., 83, 92, 105 ; 1 
 Dill. Corp. 238 ; .S. v. Roberts, 52 N. H. 
 492, 1 Green, Crim. Rep. 157. 
 
 General reputation is sufficient to prove offi- 
 cial action. McCoy, 9 Wend. 17, 24 Am. 
 Dec. 113 ; C. v. Gannett : 213^ ; notes, 2 
 L. ed. (U. S. Rep.) 101. This rule is 
 well expressed in S v. McNally, 34 Me. 
 210, 56 Am. Dec. 650, n. ; 1 Bish. Crim. 
 Proc. 1130, 2 id. 1130, 1131 ; 1 Dill. Corp. 
 238, 276, n. ; Cobbey, Replev. 1008. 
 
 Assumed character of an officer or one acting 
 * in a certain capacity is an admission that 
 he is' such, and he is estopped from deny- 
 ing this. 1 Gr. Ev. 195 ; 2 Whart. Ev. 
 1152-1153 ; 1 Dill. Presumption of ap- 
 pointment. 1 Dill. Munic. Corp. 213, 
 238. " Allegans, etc. 
 
 Prolixity is objectionable in pleadings. Stur- 
 ges ; Cryps ; also in appellate procedure ; 
 R. R. v. Stewart : 290a ; and also in evi- 
 dence, as above illustrated in C. v. Kane. 
 To charge one, as husband, for necessaries 
 furnished the wife, it is sufficient to show 
 she was held out and treated as a wife, 
 and that the creditor acted upon these 
 appearances ; but in a divorce proceeding 
 all of the facts relating to the marriage 
 must be established. 
 
 Unlawfully withholding a thing in ques- 
 tion raises presumptions against the 
 wrongdoer. Armory : 180. 
 
 In appellate procedure, the best evidence 
 to prove a matter is that expressly pro- 
 vided for, and agreeably to the maxim, 
 Expressio unius est exclusio alterius, e. g., 
 what must be proved relating to due pro- 
 cess of law must appear from the man- 
 datory record, while matter of less dig- 
 nity, not imperative or mandatory, must 
 be proved by the statutory record (bill 
 of exceptions). Relating to these records 
 the rule is strictly applied that, "what 
 ought to be of record must be proved by 
 record and by the right record." Else- 
 where we dwell upon the importance and 
 
88 
 
 DATUM POSTS. 
 
 Leading Cases.— 183. 0. v. Kane. 
 
 distinctions and independent and exclusive 
 functions of these records. §§ 83-123, Gr. ' 
 & Rud. Relating to these are masses of 
 conflicting cases. This fact indicates their 
 importance. 
 
 General mode of pleading is sometimes per- 
 mitted to avoid prolixity. Cryps. See 
 Prolixity ; Sto. PI. 253. But conclusions 
 of law are not permitted. Cruikshank; 
 J'Anson ; De non apparentibus, etc. ; Rush- 
 ton : 5. 
 
 Necessity lies at the base of the exception 
 to the rule requiring the best evidence. 
 Necessitas inducit privilegium quoad jura 
 privata; 1 Gr. Bv. 83 ; 1 Wh. Bv. 77-85. 
 It influences many rules of pleading, evi- 
 dence and procedure. 1 Bish. Cr. Proc. 7, 
 493-498 ; Res ipsa loquitur; Calye's. 
 
 All evidence possible on a point is not re- 
 quired; more than is required is surplus- 
 age; nor are weaker degrees of evidence 
 excluded. Wright v. T. ; U. S. v. Gooding ; 
 1 Gr. Ev. 82 ; Lex neminem cogit ad 
 vana seu inutilia peragenda; "Things 
 equal to the same thing are equal to each 
 other." 
 
 Appointment of a public officer; may be 
 proved generally by showing he has acted 
 as such. C. v. Kane ; Omnia prwsumuntur 
 rite, etc., applies ; 1 Gr. Ev. 83-92 ; 2 Best, 
 Bv. 356, 489 ; 1 Wh. Ev. 653 ; 2 Bish. 
 Cr. Proc. 1130, 1131. 
 
 That one made and delivered a note by im- 
 plication avers its regularity and suffi- 
 ciency. Campbell, 10 Wall. 421. Prolixity 
 should be avoided. Sturges : 111. 
 
 Exceptions to rule requiring the best evi- 
 dence; written appointment to office. C. 
 v. Kane. Public Books. 1 Gr. Ev. 91 ; 
 1 Wh. Ev. 77-127. Collateral writings ; 
 may be proved orally. 1 Gr. Ev. 89. 
 
 Exceptions to rule rejecting hearsay. See 
 Hearsay ; Doe v. Didsbury. 
 
 Examined and sworn copies of public rec- 
 ords; admissible wherever official copies 
 are, for "things equal to the same thing 
 are equal to each other." Cheatham, 113 
 N. C. 161, 37 Am. St. 617, n. ; 536. See 
 Sworn Copy, post. 
 
 "Voluminous facts. 1 Gr. Ev. 93 ; 1 Wh. Bv. 80. 
 
 Lost documents; secondary evidence admis- 
 sible to prove, after diligent search. 1 
 Gr. Ev. 558 ; 1 Wh. Ev. 129-151 ; 2 Best, 
 Ev. 472-491 ; Bagley, 9 Cal. 430, note, 
 64 Am. Dec. 687; 61 Am. Dec. 299. 
 
 Production of documents; original telegrams 
 must be produced. Sub, R. v. Gibson. 
 Telegrams ; production of. 15 Fed. 725. 
 
 Preliminary proofs requisite. Bagley, supra; 
 Fletcher, 23 Vt. 581, 56 Am. Dec. 98 ; 
 Galbraith, 3 Cold. (Tenn.) 267, 91 Am. 
 Dec. 281. Order of court upon applica- 
 tion, essential. Galbraith, supra. 
 
 Pleadings; records upon proof, discretionary 
 with court. Cook v. Burnley (1867), 11 
 Wall. (U. S.) 672 (but it would be abuse 
 of discretion to deny). Must be supplied: 
 Campbell v. Greer ; a lost indictment may 
 be supplied. Sub, Owen v. Weston. 
 
 Leading Cases. — 183. C. v. Kane. 
 
 Commercial paper; if lost, recovery on may 
 still be had. Bridgeford, 34 Conn. 546, 91 
 Am. Dec. 744, n. ; 2 Pom. Bq. 831. 
 
 Lost documents; relief in equity, concerning. 
 Bisph. Eq. 177 ; 1 Pom. 71 ; 1 Story' 
 81-89. 
 
 Records; judicial writings; official certifi- 
 cates. 1 Gr. Bv. 470-498. 
 
 Public and private writings; classification 
 1 G:-. Ev. 470; Wh. Ev. 89. 
 
 Inspection of public documents. Ferry, 12 
 Vroom. (N. J.) 332, 32 Am. Rep. 219, 
 n. ; Webber, 43 Mich. 534, 39 Am. Rep. 
 213, 29 Am. Law Reg. 60 ; 1 Gr. Ev. 471. 
 Copies when admissible to prove. 1 Wh. 
 Bv. 89 ; 2 Dill. Corp. 303. 
 
 Right to inspect public records; Caswell, 
 18 R. I. 835, 49 Am. St. 814, 27 L. R. A. 
 82-85, n. ; Upton, 17 Colo. 546, 17 L. R. 
 A. 282, n. ; Bett, 73 Md. 289, 10 L. R. A. 
 212, n. Records of United States courts, 
 how proved. See Authentication. 
 
 Inferior courts; distinctive rule. 1 Gr. Bv. 
 473. 
 
 Inspection; when a court will order. Res 
 ipsa loquitur. 1 Wh. Ev. 742-756 ; 
 Townsd. Libel, 269; 1 Gr. Ev. 477, 478; 
 17 Cyc. 290-295. 
 
 Oyer and profert; practice relating to. And. 
 Steph. PI. 159 ; 1 Chit. PI. 446-450. Codes 
 generally provide for inspection of prem- 
 ises and of documents, books, papers, etc. 
 
 Order to produce books; power of court to 
 compel party to produce books and papers 
 as evidence, or for the examination of his 
 adversary. Lester, 150 111. 408, 41 Am. 
 St. 375-396, ext. n. ; 1 Gr. Ev. 559 ; 1 
 Wh. Ev. 750. 
 
 Examination before trial; discovery; right 
 to knowledge dehors the record to prepare 
 for trial. 8 Encyc. PI. & Pr. 36-59. 
 
 Quasi public record; corporation books. 
 These are for members of corporation 
 only. 1 Gr. Ev. 474; 1 Wh. Ev. 661. 
 
 Corporation books are for its members, 
 not strangers. Legendre, 45 La. 669, 6 
 Am. R. R. & Corp. Rep. 392-395, ext. n. 
 See Byers, 13 Colo. 22, 25, Corporations; 
 1 Gr. Ev. 474. 
 
 Entries in corporation books ; not evi- 
 dence against strangers. Expressio unius, 
 etc. C. v. Kane: 1 Wh. Ev. 661-663; 2 
 Dill. Corp. 300, 301. 
 
 What ought to be of record must be proved 
 by record and by the right record. Ivers- 
 lie : 46 : cases ; Wright : 28 ; Expressio 
 unius, etc. ; Indianapolis v. Imberry, 17 
 Ind. 175, 179 ; Co. Comm'rs, 8 Ind. 504- 
 507 ; Trustees, 9 Ind. 458 ; Jordan v. 
 School District (1854), 38 Me. 164; 1 
 Beach, Pub. Corp. 377, 378 ; Munday : 79 ; 
 cases ; School District, 115 Pa. 559 ; 1 
 Dill. Munic. Corp. 301 ; Planing Mill Co. : 
 2d ; Campbell v. Greer, 2a. 
 
 Public corporations must comply with the 
 law. This is mandatory. School District, 
 supra; Hunt v. Wimbledon Local Board 
 (1878), 3 C. P. D. 208-215, 4 C. P. D. 
 48-62, 16 Rul. Cas. 237; Young V. The 
 
DATUM POSTS. 
 
 89 
 
 Leading Cases. — 183. C. v. Kane. 
 
 Mayor, 8 Ayp. Cas. 517-529, 16 Rul. Cas. 
 654, n. Counties; quasi-municipal cor- 
 porations; must strictly comply with the 
 law. Note, 68 Am. Deo. 292, n. ; Hunt, 
 supra. 
 
 Proceedings in taxation must he of record 
 and so proved. Lawrence : 132 ; Marx : 
 126 ; Moser ; Iverslie : 46 : cases ; RusLin 
 (Colo.) : 134. 
 
 Judicial records; functions and purposes of; 
 are exclusive in their domain. "Windsor : 
 1 ; Russell : 27 ; Kingston's Case ; Wright ; 
 Lea ; Ransom : 122. 
 
 Historical works. 1 Gr. Bv. 497 ; 1 Wh. Ev. 
 664. 
 
 Legislative acts; statutes. 1 Gr. Bv. 480; 
 1 Wh. Bv. 288, 635 (statutes often reg- 
 ulate this). Legislative journals. Union 
 Bank of Richmond, 119 N. C. 214, 34 
 L. ed. 487, 93 Cas. cited; 1 Gr. Ev. 
 482, 491 ; 1 Wh. Ev. 637. Are not con- 
 clusive. See Due Process of Law ; 
 Construction. 
 
 Are disputable. See Omnia prcesumun- 
 tur rite, etc. ; Cessante, etc. 
 
 Certificates of officers; include no fact not 
 designated by law. Expressio unius, etc. 
 1 Gr. Bv. 498 ; 2 Wh. Bv. 841. 
 
 Official registers; need not be designated by 
 law as such ; it is sufficient if they were 
 kept as such. 1 Gr. Ev. 496, 485. 
 
 Records; force and effect of. 1 Gr. Ev. 483, 
 485, 496 r 1 Wh. Bv. 639, 648. Registers 
 of official character. 1 Gr. Ev. 485, 496 ; 
 1 Wh. Bv. 644. Statutes; how proved. 
 
 I Gr. Bv. 500; 2 Wh. Ev. 758-841. 
 Exemplifications of patent; grants ; records ; 
 
 surveys ; plats ; maps, etc. See Copies. 
 
 Judicial writings; judgments. 1 Gr. Ev. 
 499-556 ; 1 Wh. Ev. 98-128 ; 2 id. 758- 
 841 ; Mills v. Duryea : 57. 
 
 Returns of officers. Hauswirth : 51 ; Mc- 
 Donald, 31 Mo. 29, 77 Am. Dec. 631. 
 
 Pleadings; their relation to evidence. Out- 
 ram : 25 ; Bissell : 42 ; -See Boileau : 43 ; 
 Dickson : 34. Admissions. 
 
 A party is estopped by the allegations of 
 his own pleadings. Stearns, 88 Va. 992, 
 29 Am. St. 758, n. ; Knoop, 102 Mo. 291, 
 22 Am. St. 777; Wilcoxen, 27 Cal. 228, 
 87 Am. Dec. 66 ; Bailey : 44 ; Terry. 
 
 Admissions in pleadings. Bissell : 42. 
 
 Lost records; may be proved like any other 
 document. Eakin, 10 Sm. & M. 770, 48 
 Am. Dec. 770, n. ; 1 Gr. Ev. 509 ; 1 Wh. 
 Ev. 129 ; 2 Best, Ev. 472-491. Executions, 
 if lost, may be substituted. Herm. Ex. 87. 
 Or a lost judgment. 1 Freem. Ex. 18. 
 Lost wills, also. Brown, 27 L. J. Q. B. 
 173-180 ; 8 El. & Bl. 876, 92 E. C. L. R., 
 
 II Rul. Cas. 491. Evidence to establish 
 lost or destroyed wills. Clark, 50 Neb. 
 290, 38 L. L. A. 432-458, ext. n. Lost 
 pleadings may be substituted. 1 Encyc. 
 PI. & Pr. 508; Campbell v. Greer, 2o; 
 Owen v. Weston. 
 
 Judgments; admissibility and effect of a ju- 
 dicial record. Marrott ; 1 Gr. Ev. 522; 2 
 Wh. Bv. 758-841 ; Wagner : 290. 
 
 Leading Cases. — 183. C. v. Kane. 
 
 Res adjudicata; conclusiveness of judgments 
 generally recognized, except in cases in 
 rem. Audi; Kingston's Case : 76 ; 1 Gr. 
 Ev. 525 ; 2 Wh. Ev. 814. See Res Adjudi- 
 cata. 
 Parties to judgments; are both nominal and 
 real. Bauerman: 48; Kingston's Case; 1 
 Gr. Ev. 523, 535 ; 2 Wh. Ev. 758. 
 Res inter alios acta. Privity ; what is. 1 
 Gr. Ev. 536 ; 1 Wh. Ev. 750. Estoppels 
 must be mutual ; both sides are bound, 
 or neither. Kingston's ; 1 Gr. Ev. 524. 
 Public acts of state; laws, how proved. 
 
 1 Gr. Ev. 479 ; 1 Wh. Ev. 287, 635. 
 Judicial notice. Lanfear : 181. Almanac; 
 admissibility to prove hour of moonrise. 
 Res inter alios, etc. Federal government 
 and states : Judicial notice. 1 Gr. Ev. 490. 
 Records; copies; when admissible. 1 Gr. Ev. 
 479 ; 1 Wh. Ev. 287, 635. Sworn copy 
 sufficient. Lynch, 3 Salk. (Eng.) 154, 11 
 Rul. Cas. 450, n. (document, must be 
 public) ; Doe d. Gilbert v. Ross (1840), 
 7 M. & W. 102-125, 11 Rul. Cas. 472, 
 n. (there are no degrees of secondary 
 evidence). See "Things equal to the same 
 thing are equal to each other." 1 Wh. 
 Ev. 94 ; 1 Gr. Ev. 485, 498, 507, 508. See 
 Examined and Sworn Copy, supra. 
 Office copy; proof by attested copy not ex- 
 clusive. "Things equal to the same thing 
 are equal to each other." 1 Gr. Ev. 495, 
 498, 507-508 ; Stark. Ev. 257-272. 
 Foreign laws; how proved. 1 Gr. Ev. 486 ; 
 1 Wh. Ev. 300-308; 2 Phil. Bv. 416-437. 
 Sister states statutes. May be proved by 
 lawyers or by deposition. Mills : 57 ; Bies- 
 enthall, 1 Duvall, 329, 85 Am. Dec. 629. 
 Records of sister states. Modes of attesta- 
 tion. Mills : 57 ; 1 Gr. Ev. 506 ; Stark. 
 Ev. 257-272. Authentication. 
 Proofs of records. 1 Gr. Ev. 501 ; 1 Wh. 
 Ev. 94. When record itself is admissible. 
 1 Gr. Ev. 502, 91. 
 Records of the courts of sister states. Mills: 
 57 ; 1 Gr. Ev. 504 ; 2 Wh. Ev. 801-809 ; 
 Wilcox 1, 96 Minn. 219, 5 L. R. A. N. S. 
 938-984 ext. n. 
 Private writings; general discussion of. 1 
 
 Gr. Ev. 557-584; 1 Wh. Ev. 614-756. 
 
 Attesting witnesses must be called, when. 
 
 Garrett, 53 Ohio, 582, 35 L. R. A. 321- 
 
 352, ext. n. ; 1 Gr. Ev. 569-576 ; 1 Wh. 
 
 Ev. 723-740. 
 
 Lost documents; requisite proof to show. 
 
 1 Gr. Ev. 558; 1 Wh. Bv. 129; 11 Rul. 
 
 Cas. 455-457. Presumed stamped until 
 
 contrary is shown. 11 Rul. Cas. 459-472. 
 
 Lost wills; what proof of required. 1 Tay. 
 
 Ev. 406. 
 Lost records; production; how secured. 1 
 Gr. Ev. 559 ; 1 Wh. Bv. 152-163. Court 
 may order an inspection. 1 Gr. Ev. 559 ; 
 1 Wh. Ev. 750. 
 Production ; inspection of documents ; profert 
 and oyer. By bill of discovery. 2 Tay. 
 Ev. 1586-1611 ; 2 Best, Ev. 624-630 ; 2 
 Wh. Ev. 724-756 ; 6 Encye. PI. & Pr. 
 730-818. View of premises. Res ipsa 
 
90 
 
 DATUM POSTS. 
 
 Leading Cases.— 183. C. v. Kane. 
 
 loquitur. When witness is not bound to 
 produce. 1 Tay. Ev. 428-430. 
 
 Notice should be served on party, or his 
 attorney, before trial. 1 Gr. Ev. 562 ; 15 
 Fed. Rep. 721. And it would seem that 
 twenty-four hours notice should be given ; 
 this time is given tor a subpoena duces 
 tecum. Papers may be called for at the 
 hearing and not before; generally their 
 admission is compulsory. 1 Gr. Ev. 563 ; 
 1 Tay. Ev. 1614. 
 
 Documents possessed by adverse side, produc- 
 tion of. R. v. Elworthy, sub, Production. 
 1 Gr. Ev. 560-563 ; 2 Tay. Ev. 410, 1613, 
 1615 ; 1 Wh. Ev. 737. 
 
 Notice to produce papers. 1 Gr. Ev. 561. 
 
 Unnecessary in three cases: 1. When the 
 instrument is a duplicate ; 2. When the 
 action is itself a notice; 3. When the 
 pleadings charge the defendant with pos- 
 session. R. v. Elworthy; 1 Gr. Ev. 561 ; 
 15 Fed. Rep. 721. 
 
 Seven cases; Exceptions in. 1 Tay. Ev. 
 419-426. 
 
 Admission of party will dispense with. 1 
 Gr. Ev. 96-97 ; Queen's Case : 53a. 
 
 Production of documents; Lowenstein, 12 
 Fed. Rep. 811 n. ; §724 R. S. U. S. 
 Wertheim, 15 Fed. 716-730, ext. u. cas. 
 Adams Eq. 135. 
 
 Right of party producing upon notice to use 
 and control. Smith, 131 N. Y. 169, 15 
 L. R. A. 138 n. Discovery; bills of. 
 Sub, Ubi jus, etc. 6 Encyc. PI. & Pr. 
 730-818. 
 
 Alterations ; 'Explanations of to be 
 made. Master v. Miller; 1 Gr. Ev. 564 ; 
 
 I Wh. Ev. 621-632. 
 
 Alterations; holder of document must ex- 
 plain, because such facts lie peculiarly 
 within his knowledge. Master : cases. 
 
 Immaterial alterations. De minimis non 
 curat lex. 1 Gr. Ev. 567 ; 1 Wh. Ev. 
 623, 627. 
 
 Alterations by consent. Master. Nihil tarn 
 conveniens. 1 Gr. Ev. 568a; 1 Wh. Ev. 624. 
 
 Filling blanks in deeds, Hibblewhite ; 1 Gr. 
 Ev. 568a. In commercial paper, Angle. 
 
 Proof of documents : By subscribing wit- 
 nesses, 1 Gr. Ev. 569-582 ; 1 Wh. Ev. 
 723-740. 
 
 Ancient instruments; Prove themselves. 1 
 6r. Ev. 570, 20-21: 1 Wh. Ev. 631. 
 
 Ancient deeds; their admissibility. David- 
 son, 86 Ky. 397, 9 Am. St. 295-304, ext. 
 n. ; Marsh, 2 Esp. 665-666, 5 R. R. 763, 
 
 II Rul. Cas. 508a. See Ancient Instru- 
 ments. 
 
 Handwriting ; how proved. 1 Gr. Ev. 573a- 
 582. 
 Knowledge of handwriting is gained, 
 
 1. By seeing the person write ; 
 
 2. By corresponding with him ; 1 Gr. 
 Ev. 577-578 ; 1 Tay. Ev. 1661 ; 
 
 3. Knowledge by comparison ; Hanley : 
 204 ; 1 Gr. Ev. 579. 
 
 Handwriting, proof of by comparison. 1 Gr. 
 576 ; 1 Wh. Ev. 705-722. 
 
 Leading Cases. — 
 
 184. XcCAUSHET V. SCHT7ETTE 
 (1897), 117 Cal. 223, 59 Am. St. 176, n. 
 
 Evidence should not be pleaded. Green : 90. 
 Matter of evidence should not be pleaded. 
 See Judicial Notice. Exceptions to this 
 rule are found in applications for ex parte 
 or mandatory injunctions, speciSc per- 
 formance, res adjudicata and abatement 
 pleas. 
 
 185. BONHEIL v. WILDER (1873), 67 
 111. 327. See Cothran ; Nepean ; Burden 
 of Proof ; Actore. 
 
 Cited, §§ 21, 103, 112, 155, 209, 319, 350, 
 Hughes' Proc. 
 
 Cited, §§ 224, 270a, 271, 272, Gr. & Rud. 
 
 Evidence; Burden of proof. One witness 
 unimpeached is sufficient to prove a fact, 
 and such a witness and a presumption 
 cannot be overcome by one witness only. 
 Bonnell ; C. v. McKie : 187 ; Dunlap ; 105 
 Mo. Ap. (one witness standing fair 
 proves a fact). A preponderance is suffi- 
 cient and jury must accept it. Willis, 90 
 Tex. 617, 59 Am. St. 42, n. Presumption 
 in one's favor is wholly overcome if 
 contradicted by one witness ; so held in 
 Pullman, etc. Co., 3 Colo. App. 540, 544 
 (extreme case). 
 
 Court finds and controls issues when there is 
 either no evidence or insufficient evidence 
 to submit to them. McDermott v. Severe ; 
 Citizens' Ry. : 186 ; Brown, 81 N. C. 245, 
 Huff. & W. Conts. 395 ; Schuermann, 161 
 111. 437, 52 Am. St. 377, n. ; Klein v. S. 
 (1894), 9 Ind. App. 365, 53 Am. St. 354; 
 S. v. Waller (1879), 80 N. C. 401; S. v. 
 Patterson (1878), 78 N. C. 470; Sutton, 
 2 Jones (N. C.) 320; Cobb, 23 N. C. (1 
 Ire.) 440 ; Dant v. S. ; 212. 
 
 Directing a verdict is a duty, where there is 
 no evidence or it is inconsequential, and 
 where no recovery can possibly follow. 
 Hodges, 104 Fed. 745. And if this is 
 error, it is harmless in such cases. 
 JDe minimis, etc. Lex neminem cogit 
 ad vana, etc. ;.2 Encyc. PI. £ Pr. 587; 
 6 Encyc. PI. & Pr. 668-705 (general 
 resume; Merchants' Bk. (citing Ryder v. 
 Wombwell) ; Wheelton v. Hardisty ; Mc- 
 Afee v. Reynolds. 
 
 Where a civil action is being tried by 
 a jury, although there may be evidence 
 to go to the jury, yet if the proof is such 
 that the jury could not reasonably give a 
 verdict for the plaintiff, the -judge may 
 withdraw the case from the jury and 
 direct a nonsuit ; or according to modern 
 practice, give judgment for the defendant. 
 McDermott; Hiddle, A. C. 372-376, 65 
 L. C. P. C. 24, 15 Rul. Cas. 64, n, 11 
 Mews' E. C. L. 470 : cases ; Wheelton, 
 8 El. & B. 252 ; 92 E. C. L. R., stated, 
 15 Rul. Cas. 68, 8 Mews' 4 ; Southern Ry. 
 Co., 86 Fed. 292, 40 L. R. A. 746. 
 Where there is no evidence to sustain a fact 
 the court should say so; it should not 
 assume there is. Bynon v. S. (1897), 
 117 Ala. SO, 67 Am. St. 163; Merchants' 
 Bank ; Citizens R. R. 
 
 Nonsuit. 6 Encyc. PI. & Pr. 823-1004. 
 
DATUM POSTS. 
 
 91 
 
 Leading Cases. — 185. Bonnell. 
 
 Directing a verdict. Coughlan, 164 U. S. 
 301-311 (44 L. ed. 442: cases). Ordering 
 a nonsuit and directing a verdict are in 
 substance the same. Oscanyan : 41. 
 Courts should order nonsuits and direct 
 verdicts ; in civil cases it is their duty. 
 Ad quwstionem. 
 Commercial paper; possession of'; evidence 
 of title. Res ipsa loquitur (the thing 
 speaks for itself) ; 1 Best, Bv. 196, 214, 
 2 id. 293-471 ; Pettee v. Prout, 3 Gray 
 (Mass.), 502, Redf. & Bigl. Lead. Cas. N. 
 & B. 217, 63 Am. Dec. 778. Bona fide 
 holder of bill or note. Pettee, supra, 
 Clark, 61 Kan. 526, 78 Am. St. 337. 
 Possession of cash or of a bill or note is 
 prima facie proof of ownership. Berney, 
 108 Ala. Ill, 54 Am. St. 144, n. And 
 that a bill or note is unpaid. Bonnell ; 
 Pettee, supra; Dunlap, 105 Mo. Ap. 1. 
 Possession of real estate gives' notice of 
 occupant's rights. Williamson v. Brown ; 
 Fair v. Stevenot. It -is presumed 
 when a bill or note is paid, that it is 
 surrendered. 3 Rand. Com. Pap. 1415 ; 
 Robertson, 28 111. 161, 81 Am. Dec. 267- 
 270, n. : cases (an unimpeached and un- 
 contradicted witness cannot be disre- 
 garded). A juror is bound by the evidence 
 introduced and cannot act upon his per- 
 sonal knowledge and beliefs. S. v. Gay- 
 non (1895), 44 S. C. 333, 31 L. R. A. 
 489-497, ext. n. ; Ad quwstionem facti, 
 etc. ; §§ 89-103, Hughes' Proc. See Kil- 
 patrick, 6 Colo. App. 407. 
 Possession by the maker of commercial paper 
 is prima facie proof that he has paid it. 
 Cassem, 201 111. 208, 94 Am. St. 160: 
 cases. 
 If there is sufficient evidence to place the 
 case within the province of the jury, then 
 their findings are conclusive. Warner, 
 113 Cal. 105, 54 Am. St. 327, n. ; City 
 Ry., 194 U. S. 201. 
 A presumption in one's favor is sufficient to 
 found a recovery upon. S. v. McNally 
 (1852), 34 Me. 210, 56 Am. Dec. 650, 
 652 (more than enough should not be re- 
 quired). And this right is important. 
 Presumptions of guilt, innocence, contin- 
 uity, failure to testify as to facts within 
 knowledge are all to be considered, 
 weighed and acted upon. R. v. Almon ; 
 New Orleans, 10 Pet. 662, 771 ; Nepean 
 v. Doe (limitations) ; .Smith v. Burrus. 
 "The doctrine of presumption is as fully rec- 
 ognized in the civil as it is in the com- 
 mon law. It is a principle which no en- 
 lightened tribunal, in the search of truth 
 and in applying facts to human affairs, 
 can disregard." New Orleans v. U. S. 
 supra; U. S. v. Chaves (1895), 159 U. S. 
 463; Fletcher v. Fuller (1886), 120 V. S. 
 534 ; 97 U. S. 268 : cases. 
 Life, liberty and property often depend on 
 no more than a presumption. This should 
 be well comprehended. Carefully con- 
 sider Rushton, Moore v. C, Dovaston, 
 Ransom, Harvey, Hannah, Bonnell. Verba 
 fortius, etc. 
 Refusal to find facts from requisite allega- 
 
 Leading Cases. — 185. Bonnell. 
 
 tions and proofs is error. McLaughlin ; 
 Farmers', 150 N. Y. 410, 34 L. R. A. 
 76 ; Callanan, 107 N. Y. 360 (court, if 
 requested, will state its findings). A 
 recovery must follow pleadings and proofs. 
 Kingston's: 76; Ashby, 1 Rul. Cas. 521 
 (Action; right of; 2 id. 521). Ubi jus, 
 Bro. Max. 191-211; Winsmore ; Lumley ; 
 Sasportas ; 1 Wat. Tres. 13, n., Cool. 
 Torts, 71 ; Windsor : 1 ; Sto. PI. 849. See 
 Cothran. 
 
 Number of witnesses and amount of testi- 
 mony required to prove certain issues. 
 1 Gr. Bv., §§ 255-274 ; 1 Wh. Ev. 414- 
 416 ; 2 Tay. Bv. 869-891 ; 17 Cyc. 754- 
 781. 
 
 Nine witnesses against one, and a signature, 
 prevail. Ad quwstionem, etc. Handwrit- 
 ing; its force and effect as evidence; 
 right of jury to compare, weigh and pass 
 upon. Hanley ; Ad quwstionem, etc. ; Ar- 
 nold v. Cost (1831), 3 Gill & John. (Md.) 
 219, 22 Am. Dec. 302-321, ext. u. ; C. v. 
 Kane. 
 
 Treason and perjury have distinctive rules. 
 1 Gr. Ev. 256-257; S. v. Shupe (perjury). 
 
 Equity; positive denials in sworn answer, 
 not overcome by one single uncorroborated 
 witness. Cook, sub, U. S. v. Drew ; 1 
 Fost. Fed. Prac. 82, 84 (important rule. 
 See Denials). Vigel, 104 U. S. 441; 
 Ropes ,v. Jenerson. 
 
 Number required in equity. 1 Encyc. PI. & 
 Prac. 939 ; Boileau : 43. 
 
 Equity — causes ; findings of jury not 
 conclusive as at law. Green, sub, Mar- 
 bury; Miller, 135 111. 190, 10 L. R. A. 
 292. 
 
 Reasonable doubt in criminal cases. 11. 
 Crim. Law Mag. 1-46 ; C. v. McKie : 187 ; 
 Billard v. S. : 189; Hodge v. S. (1892), 
 97 Ala. 37, 38 Am. St. 145; Carlton v. 
 P. (1894), 150 HI. 181, 41 Am. St. 346. 
 n. ; Burt v. S. (1894), 72 Miss. 408, 48 
 Am. St. 563-579, ext. n. ; S. v. Gleim 
 (1895), 17 Mont. 17, 52 Am. St. 655: 
 cases; C. v. Webster (1850), 5 Cush. 
 (Mass.) 295, 818, 324, 52 Am. Dec. 711- 
 739 ; stated, 1 Best, Ev. 201, 2 id. 297. 
 4 Wigm. Ev. 2497, 17 Mont. 31, 52 Am. 
 St. 664 ; cited, 3 Gr. Ev. 14, 25, 29, 130, 
 144, 1 Gr. Ev. 49, 56, 72, 446, 718, 2 id. 
 1263, 1 Best, Bv. 201, 2 id. 297, Kerr, 
 Horn., q.v., Burr, 96, 2 Green, Crim. 
 Rep. 434, cited, §§ 272, 294, Gr. & Rud. 
 May v. P. (1871), 60 111. 119, 2 Green, 
 Crim. Rep. 555, Whart. Crim. Bv. 1 : 
 Bachman v. P. (1885), 8 Colo. 472; Hipp 
 v. S. (1839), 5 Blackf. 148, 33 Am. Dec. 
 463 ; And. Die. (Doubt) ; 12 Cyc. 491 ; 
 4 Wigm. 2497-2498. 
 High degrees of reasonable doubt required 
 in criminal cases, and also in a few civil 
 cases. Clear and convincing proof is re- 
 quired in specific performance also. Equit- 
 able exceptions to statute of frauds in 
 those cases proved by "act and operation 
 of law."' Lyon, 13 Mees. & Wels. 385, 3 
 Gray, Cas. Prop. 254. Possession under 
 
92 
 
 DATUM POSTS. 
 
 Leading Cases. — 185. Bonnell. 
 
 statute of frauds. Twyne's Case. Or 
 when wife permits husband to use her 
 property as his own and thus gain credit 
 upon, she then claiming against such 
 creditors. Stanton, 6 Wis. 338. That an 
 absolute deed is a mortgage. Sub, Pym : 
 452 ; Davies, 17 C. B. 625 ; Purness v. 
 Meek (1857), 27 L. J. Exch. 34. 
 Preliminary examinations; rule of reason- 
 able doubt does not apply to. Marks, 8 
 Utah, 406, 26 L. R. A. 590. 
 
 Innocence is presumed until contrary is 
 proved. Coffin v. U. S., 156 U. S. 432 ; 2 
 Bish. Crim. Proc. 1103-1106 ; 4 Crim. Law. 
 Mag. 643-661, 845-864 ; C. v. Gerade 
 (1891), 145 Pa. 289, 27 Am. St. 689, n. ; 
 Fisher v. McGirr. Evil is not presumed. 
 Actore 3 etc. ; Semper prassumitur pro ne- 
 gante. 
 
 Crime must be laid. Cruikshank; Moore V. 
 C. ; Burton v. U. S. And proved. Fisher 
 v. McGirr, supra; C. v. McKie : 187 ; 1 
 Bish. Cr. Proc. 1103-1108. 
 
 Negligence is not presumed. McCully : 206 ; 
 Kearney : 211, sub, Res ipsa loquitur. 
 
 Burden of proof devolves upon the party 
 wlio holds the affirmative. Adore; Sem- 
 per prwsumitur; Nepean v. Doe ; 1 Gr. Ev. 
 74-81 ; City Ft. Smith, 51 Ark. 447, 13 
 Am. St. 62, n. ; Boulden, 119 Ind. 574, 12 
 Am. St. 453, n. ; Hazell, 95 Mo. 60, 6 
 Am. St. 22, n. ; Bliss, 393, 395, 3d ed. 
 
 In an action to quiet title a plaintiff 
 must allege that he is in possession and 
 claims as owner. A defendant must do 
 more than deny these jurisdictional aver- 
 ments, else they will be presumed true. 
 Wall. 17 Colo. 476. (Singular). 
 
 Burden, of proof generally. 1 Gr. Ev. 74- 
 91 ; 1 Ell. Ev. 128-142 ; 1 Wh. Ev. 353- 
 371 ; 4 Wigm. Ev. 2483-2539 ; Citizens' 
 Ry. : 186. 
 
 In criminal cases. C. v. McKie ; 1 Wh. Ev. 
 357 ; And Steph. PI. 175 : cases. See 
 Negative Averments. 
 
 When facts lie peculiarly within one's 
 knowledge, he must adduce his proofs, as 
 that a holder of a suspicious document 
 must explain an alteration. If fraud is 
 shown in the inception of a bill or note, 
 then the holder must prove he is innocent, 
 a bona fide holder. Lake, 61 Minn. 96, 
 52 Am. St. 538, n. 
 
 Corpus delicti must be proved in felonies. 
 Matthews v. S. : 193 ; Bish. Cr. Proc. 
 1056-1060 ; 4 Wigm. Ev. 2072-2074. 
 
 Evidence may be admitted after arguments 
 are commenced. Burt v. S. (1897), 38 
 Tex. Crim. Rep. 397, 39 L. R. A. 305 ; 
 Wells, Quest. Law, 792. See Discretion; 
 De minimis, etc. 
 
 Order of proof is in discretion of court 
 reasonably exercised. 1 Gr. Ev. 51a; Res 
 inter alios, etc. ; Village, 23 Neb. 662, 8 
 Am. St. 144, n. ; Consensus; 8 Encyc. PI. 
 & Pr. 156-302 ; 1 Bish. Cr. Proc. 966. 
 Court can not dictate order of proof. 
 Lewis, 95 Mo. 26, 3 Am. St. 511 ; C. v. 
 
 Leading Oases. — 185. Bonnell. 
 
 Hunt; C. V. Eastman. See order in Pi- 
 per: 114; 4 Wigm. Ev. 1866-1900. 
 Right to begin argument follows same order 
 as proof. Viele, 20 Iowa 9, 96 Am. Dec. 
 83, n. Argument follows same rights as 
 burden of proof. Elwell, 31 N. Y. 611 • 
 Fry, 28 N. Y. 324; R. v. Berens, 4 F. & 
 F. 842-; R. v. Barns, 16 Cox C. C. 195- 
 1 Ell. Ev. 130. 
 Right to begin; to open and close a case. 
 Generally this devolves on the party who 
 must in the first instance give evidence 
 before he can recover. Actore. 1 Whart. 
 Ev. 357; Amos v. Hughes (1835), 1 
 Moody & Rob. 464; 1 Gr. & Ev. 74, n., 
 269, n. ; Preston, 26 Iowa, 205, 96 Am! 
 Dec. 140, n. ; 3 Sedgk. Dam. 1286. Re- 
 fusal of rights is error. But may be im- 
 material. Note, 82 Am. Dec. 139 ; j) e 
 minimis, etc. (the law does not concern 
 itself about trifles) ; Bro. Max. 142, 147 ; 
 14 Ir. L. T. 258 ; And. Die, 615 ; 1 Bish' 
 C. L. 212-215. 
 In criminal cases burden of proof always de- 
 volves upon the prosecution. C. v. McKie- 
 187. 
 Insanity. See Insanity. S. v. Marler: 
 188; P. v. Rogers: 198; C. v. Rogers: 
 199. 
 Civil and criminal cases; distinctions as to 
 proof required. See Preponderance of 
 Evidence ; Reasonable Doubt. 
 Forgery; civil case. Clear and convincing 
 proof required. Oliver, 119 111. 532; af- 
 firmed, 110 III. 119, 123. See First Na- 
 tional Bk., 30 Neb. 104. 
 Preponderance of evidence is sufficient in a 
 civil case although a criminal act is in 
 issue. Kurz v. Doerr, 180 N. Y. 88, 105 
 Am. St. 716, n. ; Contra, Cases. 
 Negative allegations. Who must prove. See 
 Negative Allegations ; 1 Gr. Ev. 79 ; 
 Pom. Rem. §671; 1 Whart. Ev. 356-358. 
 One averring fraud against an officer must 
 prove it. Ex dolo; Colorado Co., 123 U. 
 S. 307. 
 Negative and positive proof; respective 
 value of. Moak, Underh. Torts, 321, 
 322 : cases ; Bates, 47 Vt. 2 ; City of 
 Greenville, 78 111. 150 ; Bradley, 45 N. Y. 
 422; Unius testis; 17 Cyc. 808, 809. 
 Province of court and jury; in passing upon 
 fact. Ad quwstionem, etc. ; S. v. Cro- 
 teau: 271; S. v. Burpee (1892), 63 Vt 
 134, 36 Am. St. 775-802, 19 L. R. A. 
 145-157, n. Overrules S. v. Croteau ; 156 
 U. S. 86. Directing a verdict is often the 
 peremptory duty of a court. Ad quas- 
 tionem, etc. ; Consensus, etc. ; 6 Encyc. 
 PI. & Pr. 667-707. 
 Facts admitted ; courts must pass on as if an 
 agreed statement of facts. Bank, 20 Mont 
 379, 63 Am. St. 628 : cases ; Hopper : 4 ; 
 Hughes' Conts. 5 ; Dickson : 34 : cases. 
 Cancellation for fraud; it must be proved 
 fully, clearly and explicitly. Rupert, 1 
 Rich. (31 S. C.) 101. See Reformation; 
 Rescission. 
 Issues properly joined; Burden on affirma- 
 
DATUM POSTS. 
 
 93 
 
 Leading Gases. — 185. Bonnell. 
 
 tive. Simonton, 5 Pet, 141, 149 8 L. ed. 
 75. See Bueden of Proof ; Nepean v. 
 Doe ; Actore, etc. 
 186. CITIZENS' STREET B. R. V. 
 
 STOCKDELL (1902;, 159 Ind. 25. 
 Cited, §§ 19, 27, Hughes' Proc. 
 Cited, §§ 144, 158, 202, 205, 232, Gr. & Rud. 
 Probatis extremis prwsumuntur media; Lim- 
 itations of. In an action against the rail- 
 road for negligence causing personal in- 
 jury, the statement of claim showed 
 plaintiff was a passenger on defendant's 
 car on Senate Avenue. Every material 
 allegation was denied. Claimant intro- 
 duced in evidence a map showing tracks 
 on that avenue, marked "Citizen's Street 
 R. R." and a witness testified he was a 
 motorman, and at the time of the accident 
 was running a car on Senate Avenue. 
 Held, on appeal that the evidence was in- 
 sufficient to support the verdict. From 
 these facts, the court would not presume, 
 that all tracks and all cars on that street 
 were the defendant's. Actore, etc. Had- 
 ley, J., dissents. 
 Actore, etc. ; Hannah : 128 ; S. v. Dant. 
 Rules of the supreme court must ~be followed 
 to secure a review. The action of the 
 court in giving or refusing to give certain 
 instructions will not be reviewed upon 
 appeal, where neither the pages and lines 
 of the record where instructions may be 
 found, nor the substance of any of the 
 instructions, are given, as required by the 
 rules of the supreme court. § 53, Gr. & 
 Rud. 
 Waiver; by failure to discuss error. Ex- 
 ceptions to the decision of the court upon 
 the motion of the appellant for an order 
 of court requiring the jury to make fur- 
 ther answers to certain interrogations are 
 waived by failure of appellants counsel to 
 discuss them. Consensus, etc. 
 Mules of evidence are no less strict in civil 
 cases than in criminal. 1 Gr. Ev. 65. See 
 Reasonable Doubt. Hardeman, 12 Tex. 
 Ap. 350 ; Bristow : 135. 
 Pleadings are strictly construed against the 
 pleader. Verba fortius; 190 U. S. 546 
 (intimates that pleadings are more strictly 
 construed than is evidence). Such views 
 lead to bewilderment. 
 187. O. V. M'KIE (1854), 1 Gray 
 (Mass.), 61, 1 Lead. Crim. Cas. (B. & H.) 
 295-310, ext. n., 61 Am. Dec. 410 ; stated, 
 3 Gr. Ev. 24, 2 Crim. Def. 394 ; cited, 1 
 Best, Ev. 213, 1 Bish. Cr. Proc. 1049 ; 
 Lilienthals, 106 U. S. 237, 268. § 294, 
 Gr. & Rud. 
 Burden of proof; reasonable doubt. Burden 
 of proof in criminal case's rests on the 
 prosecution, even of affirmative defenses ; 
 but otherwise in civil cases. McKyring : 
 331 ; Bonnell : 185 ; 17 Am. Law. Rev. 892 ; 
 Loeffner v. S. ; C. v. York ; 1 Bish. Cr. 
 Proc. 1048-1051, 1103-1106. 
 Test of burden of proof; plea of not guilty; 
 right to open and close. 2 Crim. Def. 432- 
 532 : cases ; Bonnell ; 1 Bish. Crim. Proc. 
 1048, 1091-1095. 
 
 Leading Cases. — 
 
 188. S. V. MABLEE (1841), 2 Ala. 43, 
 36 Am. Dec. 398-411, ext. n. ; 2 Crim. 
 Def. 346 : cited, 2 Crim. Def. 1 Bish. Cr. 
 Proc. 1108, 1141, 1170 ; 1195, 2 id. 629, 
 666 (insanity). Marler v. S. (1880), 67 
 Ala. 55, 68 Ala. 580 ; McClain, Crim. 
 Law, 416-418 (motive for homicide). § 
 294, Gr. & Rud. 
 
 Insanity as a defense; insanity must be 
 shown by clear and convincing proof. Jury 
 must be satisfied beyond a reasonable 
 doubt, of the defendant's sanity, or they 
 should acquit. C. v. Rogers ; P. v. Rogers ; 
 R. v. Oxford. 
 
 Witnesses ; impeachment; impeachment of 
 witnesses by proving contradictory state- 
 ments. Foundation must be laid by ask- 
 ing whether or not, at a certain time and 
 place named, the contradictory statement 
 was made. S. v. Marler ; Falsus in uno. 
 Note, 73 Am. Dec. 764; 1 Gr. Ev. 462. 
 
 189. BIL1AKD v. S. (1867), 30 Tex. 367, 
 94 Am. Dec. 317, n. Cited, § 294, Gr. & 
 Rud. 
 
 Larceny. Property must be taken with felon- 
 ious intent to permanently .deprive owner 
 of it. Billard ; S. v. Homes. General or 
 special ownership is sufficient, if either is 
 averred or shown. Billard v. S. 
 
 Reasonable doubt. Evidence in criminal cases 
 must justify .jury beyond reasonable 
 doubt ; preponderance of evidence, however 
 great, is insufficient ; unless clear and 
 convincing it will seldom suffice. Billard ; 
 1 Gr. Ev. 34, n. Burt v. S., 72 Miss. 408, 
 48 Am. St. 563-579, ext. n. ; Lovett v. S., 
 30 Fla. 152, 17 L. R. A. 705, n. ; 1 
 Bish. Cr. Proc. 1091-1095. 
 
 Venue. Proof of, by a preponderance of evi- 
 dence, sufficient. 1 Bish. Cr. Proc. 383 ; 
 Wilson v. S. (1896), 62 Ark. 497, 54 
 Am. St. 303, n. 
 
 190. B. V. PARTRIDGE (1836), 7 C. 
 & P. 551 (32 C. E. L. R.) ; 2 Best, Ev. 
 211, 311, 1 Gr. Ev. 34, n., 3 id. 32, 2 
 Bish. Cr. Proc. 738-754, 1227, 2 id. 744, 
 Wharf. Crim. Ev., 2 Bouv. Die. 843-844 
 (recent possession, etc.). 101 Am. St. 
 474-524, ext. n. Cited, § 334, Hughes' 
 Proc; §§ 293, 294. 
 
 Presumptions; circumstantial eviderief. Re- 
 cent possession of the fruits of crime is 
 prima facie evidence of guilt. Possession 
 two months after commission of event, 
 sufficient to convict. Note, 38 Am. St. 
 894, 2 Best, Ev. 211 : cases ; S. v. Frahm, 
 73 Iowa 355, 7 Am. Cr. R. 132, n. (bur- 
 glary) ; P. v. Flynn, 73 Cal. 511, 7 Am. 
 Cr. R. 126, 5 Crim. Def. 523-534, 581- 
 583 : cases ; Wilson v. U. S., 162 U. S. 
 613 ; Res ipsa loquitur; Williams v. S., 
 40 Fla. 480, 74 Am. St. 154, n. U. S. 
 v. King: 192. See Huggins v. P (1890), 
 135 111. 243, 25 Am. St. 357-362, n. ; 
 Robb v. S. (1892), 35 Neb. 285; Blaker 
 v. S. (1891), 130 Ind. 203, 2 Bouv. Die. 
 843, 844. 
 
 191. PHELPS V. RACEY (1875), 60 
 N. Y. 10, 19 Am. Rep. 140, 7 Crim. Law 
 Mag. 227 ; 9 L. R. A. 139, 8 Am. C. E. 
 311 ; 1 Ell. Ev. 86, 87. 
 
 Cited, §§ 293, 295, Gr. & Rud. 
 
94 
 
 DATUM POSTS. 
 
 Leading Cases.— 191. Phelps. 
 
 Statutory crime. Possesson of game during 
 the closed /season is. Dickhaut v. S., 85 
 Md. 451, 36 L. R. A. 765, 60 Am. St. 332, 
 n., 7 Crim. Law Mag. 213-230 ; Maier, 103 
 Cal. 476, 42 Am. St. 129-141, ext. n. ; S. 
 v. Schuman, 36 Oreg. 16, 78 Am. St. 754. 
 Contra: C. v. Hall, 128 Mass. 410, 35 
 Am. Rep. 387 ; S. v. McGuire, 24 Oreg. 
 366, 21 L. R. A. 478: oases; P. v. O'Neil, 
 71 Micji. 325, 8 Am. Cr. R. 302. 
 
 Such statutes are no interference with com- 
 merce. Geer v! S., 161 U. S. 519. And 
 transportation of game may be prohibited. 
 American, 133 111. 649, 9 L. R. A. 138 ; 
 P. v. Buffalo Fish Co., 164 N. Y. 93, 79 
 Am. St. 622 (possession is only prima 
 facie evidence). 
 
 Possession of certain property may be made 
 criminal. Haggerty, 133 Mo. 238, 40 L. 
 R. A. 151 ; e. g., opium. Mon Luck, 29 
 Oreg. 221, 54 Am. St. 804, n. : S. v. 
 Thomas : 257 ; S. v. Beach : 258 ; Adams 
 v. New York, sub, Nemo tenetur, etc. ; 98 
 Am. St. 675. Intent immaterial in statu- 
 tory offense. P. v. Robey. 
 
 192. TJ. S. V. KING (1851), 5 McLean 
 (U. S.), 208, 4 Crim. Def. 163, Laws. 
 Lead. Crim. Cas. 109, 3 Gr. Et. 103, 111. 
 
 Cited, § 294, Gr. & Rud. 
 
 King stated: K. made spurious coin to use 
 in magical ' performances and not to cir- 
 culate as money. Held, not guilty of 
 counterfeiting. Intent is an essential ele- 
 ment. Actus, etc. ; P. V. Robey. 
 
 Recent possession of fruits of crime. R. v. 
 Partridge, supra; and of tools to make 
 counterfeits, and of such sufficient. King ; 
 S. y. Weston (1833), 9 Conn. 27, 25 Am. 
 Dec. 40 ; Res ipsa loquitur; Res inter 
 alios, etc. 
 
 193. MATTHEWS V. S. (1876), 55 Ala. 
 187, 28 Am. Rep. 698-704. Cited, §§ 272, 
 294, Gr. & Rud. 
 
 Confessions. Corpus delicti must be proved 
 in felonies ; confession without this is in- 
 sufficient. Cool. Const. Lim. 381. The 
 corpus delicti can not be proved by a 
 confession alone. See Nemo tenetur. 3 
 Gr.,Ev. 19, 30, 131, 2 Best, Ev. 353, 439- 
 451', 553, 8 Rud. Cas. 104 ; Bradford v. U. 
 S., 104 Ala. 68, 53 Am. St. 24, n. ; Dunn 
 v. S., 34 Tex. Cr. Rep. 257, 53 Am. St. 
 714, n. The corpus delicti in larceny 
 must be proved. R. v. Dredge, 1 Cox, 
 C. C. 235. 
 
 Certainty of evidence essential. In em- 
 bezzlement, proof of a general deficiency 
 insufficient. Sub, R. v. Negus. Ad 
 qu&stionem, etc. ; Citizens' Ry. : 186. 
 
 Death proved by circumstantial evidence : 
 Hickory: 194. 
 
 Personal identity; identifying victims; un- 
 certainties of. 2 Crim. Law Mag. 287- 
 318. 
 
 Homicide; identity must be proved in. Ru- 
 loff, 18 N. Y. 179, 5 Crim. Def. 939; S. 
 v. German, 54 Mo. 526, 14 Am. Rep. 481, 
 5 Crim. Def. 953, note, Id. 1142-1155 ; 
 Campbell v. P., 159 111. 9, 50 Am. St. 134. 
 
 Infanticide. It must be shown child was 
 
 Leading Oases. — 193. Matthews. 
 
 murdered, and also that the mother did it. 
 Harris v. S., 28 Tex. Ap. 308, 19 Am. 
 St. 837, n. ; R. v. Waters (certainty re- 
 quired). 
 
 Generally. See S. v. Williams, 7 Jones, Law 
 (N. C), 446, 78 Am. Dec. 248-259, ext. 
 n. ; Carlton v. P., 150 111. 181, 41 Am. St. 
 346 ; Willard v. S., 27 Tex. Ap. 386, 11 
 Am. St. 197; P. v. Palmer, 109 N. Y 
 110, 4 Am. St. 423; 1 Bish. Crim. Proc! 
 1056-1059. Conspirators: agents; confes- 
 sions of. U. S. v. Gooding. 
 
 194. HICKORY v. TT. S. (1894), 151 
 U. S. 303, 317, 38 L. ed. 170, 160 U. S. 
 408, 40 L. ed. 474. 
 
 Cited, §§ 272, 294, Gr. & Rud. 
 
 Hickory stated: Sam Downing, alias Sam 
 Hickory, with other Cherokee Indians, 
 were indicted for murder of .Joseph Wilson, 
 a United States deputy marshal. H. 
 alone was convicted. He claimed he 
 killed Wilson in self-defense, but the evi- 
 dence was weighty, showing that H. only 
 wounded W. and that he was afterwards 
 killed either by H. or by one Shade, with 
 an axe, and this belief was greatly 
 strengthened by a letter H. wrote to 
 Ollie Hickory, alias Williams. H. denied 
 the genuineness of this letter. For com- 
 parisons of handwriting other documents 
 were introduced. The name of Snell, a 
 witness, was not indorsed on the back of 
 the indictment, as required under § 
 1033, R. S., but to this exception was 
 not promptly taken. Johnson, a witness 
 for H., *gave damaging testimony, and it 
 was sought to show that he had made 
 contrary statements out of court. Ex- 
 ceptions were taken to the court's criti- 
 cism on circumstantial evidence — "de- 
 nouncing persons who are shown to act on 
 circumstantial evidence as fools and 
 knaves." Held : 
 
 1. That papers shown to be genuine could 
 not be introduced in evidence solely for 
 the purpose of comparison, and stating ex- 
 ceptions (Hanley) ; that writings specially 
 prepared for comparison are inadmissible. 
 (As to this an exceptional rule exists in 
 federal courts.) 
 
 2. That objection that the name of a witness 
 is not on the back of an indictment must 
 be aptly made. 
 
 3. That exceptions must be taken before the 
 jury retires — before the mischief is 
 wrought. Notice must be given, that the 
 court can promptly correct, and correct its 
 errors, where these are waivable in char- 
 acter. "He who does not speak when he 
 ought, should not be heard when he de- 
 sires to apeak." (Montgomery : 292 ; 
 Consensus. 
 
 4. Exceptions to instructions must be taken 
 before the jury retires, to enable the 
 judge to correct error, and that the ap- 
 pellate tribunal may pass upon the pre- 
 cise question raised without being com- 
 pelled to search the records to ascertain 
 it. Consensus. § 53, Gr. & Rud. 
 
DATUM POSTS. 
 
 95 
 
 Leading Cases. — 194. Hickory. 
 
 5. Exceptions must be several, distinct and 
 certain. Miller : 296. Consensus ; Ex- 
 pressio unius, etc. 
 
 6. That u party vouches for his witness, 
 and that at common law he cannot con- 
 tradict his statements, except by leave of 
 court. Allegans. See 1 Gr. Bv. 462. 
 
 1. Circumstantial evidence is high and satis- 
 factory, and is sufficient to sustain a con- 
 viction of murder. Hickory ; Dant S. ; 
 S. v. Halleck, 65 Wis. 147, 7 Crim. Law 
 Mag. 643 ; Peltzner's Case, 4 Crim. Law 
 Mag. 157-171. 
 
 Circumstantial evidence solely will be 
 admitted to prove the contract in some 
 civil causes, e. g., the equitable exceptions 
 to the Statute of Frauds. Lester. Here 
 it is recognized as the highest of evidence. 
 
 Death may be proved by circumstantial evi- 
 dence. Starr v. U. S., 164 U. S. 627 ; 
 Matthews v. S. 
 
 8. Self-defense can be exercised only out of 
 necessity. The actor 
 
 "must not forget that he is judge, jury 
 and executioner when he is sitting in that 
 tribunal out in the woods or country. He 
 is therefore required to comprehend what 
 this law is. He is required to know what 
 the facts are that confront him, and to 
 make a correct application of that law 
 to these facts, and if he does not do that 
 when he might do it, he makes a mistake 
 in that regard, and he would be guilty of 
 manslaughter." Every man is presumed 
 to know the law. U. S. v. Holmes ; Ne- 
 cessitas inducit privilegium, etc. 
 
 9. Premeditation in homicide may exist for 
 an instant only — "in the twinkling of an 
 eye." C. v. York; Durant v. P., sub., 
 Malice. 
 
 Instructions of judges must not be set out 
 in hcec verba in bills of exceptions (statu- 
 tory record). 150 U. S. 118; B. R. v. 
 Stewart, 290a. Proxility is to be avoided. 
 
 A charge must not magnify and distort the 
 proved facts. 160 U. S. 408. Limitations 
 of power to comment. S. v. Whit (1858), 
 
 5 Jones' Law (N. C), 224, 72 Am. Dec. 
 533-549. Reasons for this rule are found 
 in S. v. Croteau : 271. 
 
 195. M'NAGHTEN'S (or M'NATJGH- 
 TEN'S) CASE (1843), 10 Clark & Fin. 
 200, 8 Eng. Rep. 718, 1 C. & K., 130 Me., 
 47 E. C. L. R. 130, 8 Scott, N. R. 505, 
 21 Cyc. 665. Beale, Crim. Cas. 45, 7 
 Crim. Law Mag. 567, 2 Crim. Def. 150, 
 Law. Insan. Cas. 150, Am. Die. 551, Clark, 
 Crim. Cas. 95; Parsons v. S. (1887), 81 
 Ala. 577, 60 Am. Rep. 193, 9 Crim. Law 
 Mag. 826 ; 160 U. S. 470 ; 8 Rul. Cas. 
 29 41-2 Bish. Crim. Proc. 671, 685 ; 
 (j§ '44-47, Hughes' Proc. ; §§ 293, 294, Gr. 
 
 6 Rud - . .„ , „ 
 M'Naghten's Case stated: M. killed Drum- 
 
 mond and was acquitted for insanity. 
 
 Great interest was taken in the case and 
 
 Parliament asked the judges of the law, 
 
 and they answered three leading questions 
 
 propounded. A leading one of these was 
 
 that experts attending the trial and thus 
 
 learning of the case may give their 
 
 opinion of the prisoner (Cuilibet in sua, 
 
 etc.) 
 
 Leading Cases — 195 M'Naghten's 
 
 Procedure. Insanity at or after trial. 2 
 Crim. Def. 881-919 ; cases ; Baughn v. S., 
 100 Ga. 554, 38 L. R. A. 577-591, ext. u. 
 (after commission of crime). 
 
 Theory of culpability. Actus non facit 
 reum, etc. 10 Crim. Law Mag. 641-661, 
 805-862 ("Irresistible impulse"; "Moral 
 insanity" ; "Emotional insanity" ; "Right 
 and wrong test"). 
 
 The defense of insanity. 2 Bish. Cr. Proc. 
 664-687, n., 7 Crim. Law Mag. 431-464, 
 567-600, 12 id. 1-12 (insanity and crim- 
 inal responsibility) ; Davis v. U. S-, 160 
 U. S. 469 ; P. v. Hubert, 119 Cal. 216, 
 63 Am. St. 72-108, n., 2 Crim. Def. 
 1-919, n. See C. v. Rogers : cases ; 1 
 Bish. C. L. 374-398a (liability of in- 
 sane persons) ; Knights v. S., 58 Neb. 
 225, 76 Am. St. 78-97 ext. n. 
 
 Presumption of sanity until the contrary is 
 shown. Bro. Max. 15. See S. v. Marler : 
 cases ; C. v. Rogers ; C. v. McKie : cases ; 
 Loeffner v. S., 10 Ohio St. 598, 2 Crim. 
 Def. 432, Laws. Insan. Cas. 832 ; cited, 2 
 Crim. Def. Hor. & Thomp. Cas. Self- 
 Def., 2 Gr. Ev. 373. 
 
 Continuity. Condition once shown is pre- 
 sumed to continue until the contrary is 
 shown. Carotti : 179 ; 1 Gr. Ev. 41, 42 ; Ford 
 v. S. (1896), 73 Miss. 734, 35 L. R. A. 
 117-124, ext. n. Evidence of temperament 
 and disposition and condition of mind of 
 defendant inadmissible unless insanity is 
 pleaded. Jacobs v. C, 121 Pa. 586, 6 Am. 
 St. 802. R. v. Oxford; 1 Bish. C. L. 
 384, 387, 396, 758 (intent essential for 
 a crime; sanity presumed). 
 
 Leading cases: V. S. v. Drew; C. v. Rogers; 
 P. v. Rogers; S. v. Marler (burden of 
 proof) ; R. v. Oxford. 
 
 Contract law; assent essential. Contract of 
 insane persons. Molton v. Camroux ; 413. 
 
 196. LOEITNER v. S. (1857), 10 Ohio 
 St. 598, 2 Crim. Def. 432 ; stated, Laws. 
 Insan. Cas. Simp. 832 ; cited, 2 Crim. Def. 
 2 Gr. Ev. 373 ; McClain, C. L. q.v. 
 
 Loeffner stated: L. killed H. and his de- 
 fense was insanity, which he failed to 
 prove. He insisted the State must affirma- 
 tively prove his sanity, but the court laid 
 down the law that all men are presumed 
 sane until the contrary appears. So L. 
 was found guilty and hanged. C. v. York. 
 
 Homicide; insanity. Burden of proof of 
 sanity. C. v. Rogers ; S. v. Marler ; 2 
 Crim. Def. 533-768 : cases ; 2 Gr. Ev. 373. 
 
 197. C. v. YORK (1845), 9 Met. (Mass.) 
 93, 1 Lead. Crim. Cas. 322-362, ext. n., 
 43 Am. Dec. 373-396, n. ; stated, 3 Gr. 
 Ev. 14, 2 Crim. Def. 488 ; cited, 1 Wat. 
 Tres. 281, 1 Gr. Ev. 34, n., 2 Crim. Def. 
 488, 489, 493, 497, 862, 3 Gr. Ev. 14, 1 
 Best, Ev. 393, 394, Kerr, Horn., 164 U. 
 S. 497, 41 L. ed. 529 ; McClain, Crim. 
 Law. 
 
 Cited, § 343, Hughes' Proc. ; § 294, Gr. & 
 Rud. 
 
 York stated: Y. killed Norton at night by 
 stabbing him with a dirk through the 
 heart. Great importance was attached by 
 the defense upon the absence of proof as 
 
96 
 
 DATUM POSTS. 
 
 Leading Cases. — 197. York. 
 
 to malice, but Shaw, C. J. said : "A sane 
 man, a voluntary agent, acting upon mo- 
 tives must be presumed to contemplate and 
 intend the necessary, natural, direct and 
 probable consequences of his acts." "Squib 
 Case." 
 
 Sullivan v. S. (1893), 102 Ala. 135, 
 48 Am. St. 22, n. ; 2 Bish. Cr. Proc. 303 ; 
 Allen v. U. S., 164 U. S. 492 (41 L. ed. 
 492) ; Acers v. U. S., 164 U. S. 388 (41 
 L. ed. 481, ext. n.). 
 198. P. v. ROGERS (1858), 18 N T. 9, 
 72 Am. Dec. 484-493, ext. n., Laws. In- 
 san. Cas. 624, Beale, Crim. Cas. 61, 2 
 Crim. Def. 624 ; stated, 8 Ap. D. C. 20, 
 36 L. R. A. 484, Clark, Crim. Cas. 116 ; 
 cited, Bish. C. L., 3 Gr. Ev. 6, 148 ; Mc- 
 Clain, Crim. Law. 
 Cited, §§ 272, 294, Gr. & Rud. 
 Rogers stated: R. and two revelers became 
 drunk, and meeting Swanston and wife 
 "bumped" up against the latter and 
 pushed her against her husband. High 
 words followed. But they all passed on, 
 when R. retraced his steps and overtook S. 
 and wife and stabbed and killed him. 
 R. then hurried home, and was helplessly 
 drunk ; and this was his defense, but it 
 failed. One cannot make himself a demon 
 and then have the defense of the insane. 
 Drunkenness is itself a crime, and so ag- 
 gravates. Nullus commodum, etc. ; Volen- 
 ti, etc. ; Pirtle v. S. 
 Drunkenness; when a defense. U. S. v. 
 Drew ; Pirtle v. S. ; C. v. Rogers ; 3 Gr. 
 Ev. 6. It is no defense. 3 Gr. Ev. 148. 
 Insanity as an element in criminal cases. 
 C. v. Rogers ; S. v. Marler ; Actus non 
 facit. 1 Bish. C. L. 374-396a; 3 Gr. Ev. 5. 
 Burden of -proof ; authorities are in conflict. 
 It generally rests on the prosecution. S. 
 v. Marler, n. ; C. v. Rogers ; C. v. Gerade, 
 145 Pa. 289, 27 Am. St. 689, n. (state 
 must prove). 
 199. C. v. ROGERS (1844), 7 Met 
 (Mass.) 500, 1 Lead. Crim. Cas. (B. & 
 H.) 94, 145, ext. n.. 41 Am. Dec. 458, 
 Redf. Am. C. Wills, 40, 2 Crim. Def. 158, 
 Clark, Crim. Cas. 116 ; Trial of Abner 
 Rogers ; stated, 2 Gr. Ev. 372, 2 Crim. 
 Def. 488, 18 L. R. A. 225 ; cited, 1 Bish. 
 O. L., 1 Wh. Ev. 451, 3 Gr. Ev. 6, 2 
 Crim. Def., ext. n., g.v. Bish. Cr. Proc. 
 Rogers stated: R. a prisoner, while in a 
 state of hallucination, killed the warden 
 with a shoe knife. He was acquitted. 
 Homicide; insanity as a defense; delusion; 
 medical testimony. McNaghten : 195 ; 
 Loeffner ; R. v. Oxford ; 2 Gr. Ev. 338- 
 340, n., 2 Bish. Cr. Proc. 684-6876. 
 
 Insanity as a defense to crime ; Mc- 
 Naghten : 195. 
 Drunkenness; when a defense. U. S. v. 
 Drew ; P. v. Rogers, 3 Gr. Ev. 6, 2 Crim. 
 Def. 533-768 ; Parsons v S., 81 Ala. 577, 
 60 Am. Rep. 193, Beale, Crim. Cas. 48, 
 60, n. : cases, Clark, Crim. Cas. 577 (Mc- 
 Naghten : 195) ; stated, 9 Crim. Law Mag 
 812-828. 
 Burden of proof in insanity. 9 Am. Law 
 
 Leading Cases. — 199. Rogers. 
 
 Reg. (N. S.) 201-210, 329-334, 2 Crim 
 Def. 432-532. 
 Irresistible impulse as an excuse. S. v. 
 Harrison, 36 W. Va. 729, 18 L. R. A. 224- 
 240, n. : cases. 
 
 200. R. v. OXFORD (1840), 9 C & P 
 525 (38 E. C. L. R.), 2 Crim. Def. 219* 
 Clark, Crim. Cas. 150, 8 Rul. Cas. 42 1 
 Bish. C. L., McClain, Crim. Law, 4 Mews' 
 E. C. L. 1111, 1112. 
 
 Insanity as an excuse for crime. An insane 
 person can commit no crime. Sanity is 
 presumed until the contrary is shown. C. 
 v. Rogers ; McNaghten's ; S. v. Marler ; 
 U. S. v. Drew. 
 
 Actus non facit reum nisi mens sit rea is 
 the leading and basic maxim of the crim- 
 inal law. It is much more prominent in. 
 Coke's Institutes : L. C. 187-200, ante. 
 
 201. WRIGHT v. TATHAM (1834) 1 
 Adol. & El. 3-23 (28 E. C. L. R.), 3 Nev 
 
 6 M. 268, 11 Rul. Cas. 248, Thayer, Cas' 
 Ev. 319, 40 R. R. 226, 6 Mews' E. C. L 
 527. 
 
 Sub, nom: Tatham v. Wright (1830, 1831), 
 2 Russ. & M. 1, 5 Clark & Fin. 670, 4 
 Bing. 489, 6 Scott, 58, 2 Nev. & P. 305, 
 
 7 A. & E. 313, 39 Eng. Rep. 232. 
 Right to cross-examine a witness is a funda- 
 mental principle of protection, and it must 
 be afforded as a condition to its admissibil- 
 ity. 1 Gr. »Ev. 98, 445, n. ; Kissam v. 
 Forrest, 25 Wend. 651. Such principles 
 springing from the common law are as 
 scrupulously protected as if reaffirmed in 
 constitutions. 2 Kent, 8, 12 ; Cruikshank. 
 See Nemo tenetur, etc. 
 
 202. IT. S. V. GOODING (1827), 12 
 Wheat. (U. S.) 460 (6 L. ed. 693), Thay- 
 er, Cas. Ev. 125, 631 ; 1 Gr. Ev. 233, 2 
 Best, Ev. 295, 346. 
 
 Cited, §§ 334, 341, Hughes' Proc; §§ 294, 
 303, Gr. & Rud. 
 
 V. S. v. Gooding stated: G. was indicted for 
 carrying on the slave trade in violation 
 of the statute of 1818. He lived at Bal- 
 timore, where was fitted out his vessel 
 and where he hired Hill, its master, who 
 within the scope of the agency, admitted to 
 Captain Coit the service and tried to hire 
 him for a voyage to Africa and return 
 to Cuba at $70 per month and $5 per 
 head for each prime slave delivered in 
 Cuba. H. told C. that G. would pay the 
 crew. Held, that this testimony was com- 
 petent against G. upon the principle of 
 Qui per alium, etc. S. v. Ryan ; Spies v. 
 P. ; P. v. Lawrence. 
 
 Kirkstall Co. v. Furness R. Co. The rules 
 of evidence are the same in civil and 
 criminal cases, except as to the burden 
 of proof ; and in treason and perjury. 
 1 Gr. Ev. 65, 233. Whatever an agent 
 does in the scope of the agency is a part 
 of the res gestw, and therefore admissible. 
 1 Gr. Ev. 233 ; Qui sentit, etc. ; Moore v. 
 Bettis, 11 Humph. 67, 53 Am. Dec. 771- 
 778 (res gestae acts of agent bind princi- 
 pal within the scope of the agency. Qui 
 sentit, etc.) ; Thallhimer v. Brinckerhoff, 
 
DATUM POSTS. 
 
 97 
 
 Leading Cases. — 202. Gooding. 
 
 4 Wend. 394, 21 Am. Dec. 155-158, Mech. 
 Ag. 714-715 Sto. Ag. 
 
 Admission of agents. 2 Wharf. Ev. 1170- 
 1220 : Mech. Ag. 714-715 ; 2 Cook, Stockh. 
 726. 
 
 Agents as witnesses. Qui per alium, 
 etc. Res inter alios acta; Plymouth 
 County Bank, 3 S. Dak. 170, 44 Am. St. 
 782, n. 
 
 Admissions admissible against one making 
 them, or if made by his agent or one re • 
 ferred to, to make them. Gooding. Con- 
 duct and extra-judicial admissions. 1 
 Bish. Cr. Proc. 1247-1254 ; Clark, Cr. 
 Proc. 211. Acts and declarations of offi- 
 cers. 1 Dill. Corp. 237, n. 
 
 Are competent to prove a deed or record. 
 Queen's : 53a.,- Smith v. Palmer, 6 Cush. 
 513, Thayer Cas. Ev. 127 ; Slatterie v. Poo- 
 ley, 6 Mees. & Wels. 664 ; Thayer, Cas. 
 Ev. 752, 1 H. & W. 16 ; 11 Rul. Cas. 208. 
 Or official character. C. v. Kane ; 1 Gr. 
 Ev. 96, 97. And while a conveyance must 
 be by deed, still the conveyance may be 
 proved by an admission. Smith. 
 
 Best evidence may be dispensed with by ad- 
 missions. Smith v. Palmer : 1 Gr. Ev. 96, 
 97 ; Slatterie v. Pooley, supra. Notwith- 
 standing the rule that requires the best 
 evidence. Queen's Case ; Bouchaud, sub, 
 Bissell : 42 (admission by demurrer con- 
 clusive). 
 
 The rationale of an admission is that it is 
 disserving — as against the interest of the 
 one who made it, — and therefore it is 
 presumably true. The presumption is that 
 men are guardful and defensive of their 
 interests ; that self-defense is natural 
 and is therefore acted upon ; and this 
 same principle runs through Higham : 
 213c (entries against interest). Notes, 
 Bauerman: 48, 2 Sm. L. C, 8th ed. 
 
 Admissions, generally. 1 Gr. Ev. 27, 169- 
 212, 1 Wh. Ev. 836, 841; 2 id. 1075- 
 1220 ; 1 Tay. Ev. 653-688 ; 2 id. 506-510, 
 518-531 ; Brad. Ev. 103-118 : Bauerman : 
 48 ; Pickard ; Price : 213f. 
 
 Attorneys of record: admissions by. 1 Gr. 
 Ev. 27, 186-204 ; 1 Tay. Ev. 700-709 ; 
 Oscanyan : 41. Judicial admissions. 1 
 Gr. Ev. 205-227a; 1 Tay. Ev. 700-709, 
 760-765. 
 
 Accomplice; accessory; convicting upon tes- 
 timony of. Stone v. S., 118 Ga. 705, 98. 
 Am. St. 145-180. - 
 
 Statutory crimes; how pleaded. U. S. v. 
 Gooding ; C. v. Bean : 226. 
 
 Agents; partners; conspirators — admissions 
 of. 1 Gr. Ev. 171-189; 1 Tay. Ev. 712- 
 713; 2 Wh. Ev. 1156, 1169-1220. Con- 
 spirators. Mercer v. S., 40 Fla. 216, 74 
 Am. St. 135 ; Spies v. P. See Res Gestw; 
 P. v. Vernon ; Res inter alios. 
 
 Clothing agent with authority to do an act 
 carries with it power to prove the agency. 
 Consequently this may be proved by the 
 agent himself. Moses, 24 N. H. 71, 55 
 Am. Dec. 222, n., Mech. Ag. 102 ; Thall- 
 himer v. Brinckerhoff, 4 Wend. 394, 21 
 
 Leading Cases. — 202. Gooding. 
 
 Am. Dec. 155-158, n., Mech. 714 ; Sto. 
 134, 135; Whart. Ag. 158; 1 Gr. 113; 2 
 Whart. Ev. 1170, 1173 ; Converse, 14 
 Mich. 109, 90 Am. Dec. 109, 1 Danl. Nego. 
 Insts. 284. 
 Kirkstall Brewing Co. v. Furness, Gr. & Rud. 
 2 Whart. Ev. 1177, 1180; 3 Mews' E. C. 
 L. 112 ; id. Huffc. Ag. 139. Admissions, 
 by agents. Res Gestw. Id. 136-140. 
 
 203. ALLEN v. S. (1859), 28 Ga. 305, 
 73 Am. Dec. 760-777, ext. n. (rules 
 stated; able resume). 
 
 Cited, §§ 181, 184, Hughes' Proc. ; § 272, 
 Gr. & Rud. 
 
 Impeachment of witnesses. See Falsus- 
 in uno, etc. ; 1 Gr. Ev. 461-469. 
 
 204. HANMY v. GAHDY (1S66), 28- 
 Tex. 213, 91 Am. Dec. 315-320, n. 
 
 Handwriting; comparison of; proof by. 1 
 Gr. Ev. 576-581 ; 1 Wh. Ev. 705-722 ; 
 Rogers, 12 Wall. 317 (20 L. ed. 417-419, 
 n.) ; Dresler, 127 N. Y. 235, 12 L. R. A. 
 456-462, n. (expert and opinion evidence 
 to prove) ; 2 Bish. Cr. Proc. 432, n. 
 See Hickory : 94 ; University, 62 L. R. A. 
 817-874, ext. n. (conflicting cases in va- 
 rious jurisdictions), C. v. Kane; 183; 
 Hickory. 
 
 Documents cannot be admitted to jury for 
 them to compare. Fuller, 101 N. C. 119, 
 9 Am. St. 27, n. Contra, Gaunt, 53 Kan. 
 405, 42 Am. St. 297, n. : cases. 
 
 Limitations of evidence to handwriting. 
 S. v. Ryno (1904), — Kan. — , 64 L. R, 
 303-320, ext. n. 
 
 205. KING V. OREGON SHORT LIKE 
 R. R. (1898), — Idaho, — 59 L. R. A. 209- 
 277, ext. n., 55 P. 665. 
 
 Cited, §§ 169, 296, Gr. & Rud. 
 
 General allegations in cases of negligence ; 
 when sufficient. A general allegation of 
 negligence is not objectionable to a gen- 
 eral demurrer. It is aided by waiver — 
 pleading over. Dobson. Cf. L. & N. R. 
 R., 125 Ala. 237, 50 L. R. A. 620; Far- 
 nam ; 97. 
 
 The statement must be in ordinary and con- 
 cise language and without unnecessary- 
 repetition, is the language of the code 
 King ; Sturges : 111. 
 
 Fact showing negligence must be pleaded. 
 Holland, 120 Ind. 146, 16 Am. St. 307 1 
 L. & N. R. R., supra; Labatt, Mas. & Ser. 
 850-867. 
 
 The facts must be pleaded. Specific allega- 
 tions of negligence need not appear. Cin~ 
 cinnati R. R., 30 Ind. App. 663, 96 Am. 
 St. 355. 
 
 To prove negligence a town ordinance may' 
 be introduced and proved without plead- 
 ing it; as where a train was running 
 faster within a town than was permitted. 
 Faber, 29 Minn. 465. 
 
 Prolixity is to be avoided. C. v. Kane. 
 
 Negligence; what are sufficient facts. Gib- 
 son, 1 Alas. 407 (personal injury ; the 
 relative position of the vessel and the 
 wharf; averring the defective appliances 
 used and the defects therein ; also the 
 acts constituting the negligence). 
 
98 
 
 DATUM POSTS. 
 
 Leading Oases. — 
 
 206. He CULLY V. CLARK (1861), 40 
 Pa. 399, 80 Am. Dec. 584, n., Bigl. L. C. 
 Torts, 559-601, ext. n. ; 1 Wh. Ev. 359, 
 Wh. Neg. 42-321. 
 
 The burden of proof is upon the plaintiff to 
 allege and prove negligence ; the law will 
 not presume it. MoCully ; 1 Wh. Bv. 359 : 
 Losee : 210. Ei incumbit, etc. ; Labatt, 
 Mas. & Ser., 817-843. 
 
 One alleging negligence must prove it 
 notwithstanding plea of contributive negli- 
 gence. Looney v. R. R. 200 U. S. 480. 
 See Dickson : 34. A charge of gross neg- 
 ligence must be proved as laid ; proof of 
 ordinary will not do. Rideout. 
 
 Negligence; a question of law or fact. Kear- 
 ney ; De non apparentibus, etc. ; Actore 
 non probante reus absolvitur. 
 
 207. STOKES V. SALTONSTALL (1839), 
 13 Pet. (U. S.) 181 (10 L. ed. 115, n.) ; 
 Saltonstall v. Stockton; Taney 11, Fed. 
 Cas. No. 12271 : cases (approved, Glee- 
 son, 140 U. S. 435) ; 7 Am. Neg. Cas. 
 297 ; stated, Bigl. L. C. Torts, 599 ; cited, 
 Hutch. Carr., Ror. R. R., Shear. & Redf. 
 Neg. 28, 280, Whart., Chit. Conts., Cool. 
 Torts, Jag. Torts, Bigl. L. C. Torts, 599, 
 723, 2 Gr. Bv. 221, 2 Kent, 601, 23 Or. 
 215, 27 L. R. A. 280, Busw. Pers. Inj. 
 Ill, 113, Suth. Dam. § 348. 
 
 Carriers of passengers are not insurers, but 
 are bound to the highest degree of care. 
 Stokes; Christie, 2 Camp. (Eng.) 79; 
 stated, Hutch. Carr. 500 ; Ingalls : 353 ; 
 Budd, 25 Or. 314, 27 L. R. A. 279-284, 
 n. ; Patton, 179 V. S. 658 ; Whitney : 112. 
 
 Contributory negligence of a passenger bars 
 a recovery. Volenti; Suth. Dam. 39. 
 
 Servant's contributory negligence bars a re- 
 covery for personal injuries inflicted in 
 the master's service. Sub, Farwell v. 
 R. R. 
 
 Evidence of negligence. If a carriage is up- 
 set it is prima facie evidence of negligence. 
 Res ipsa loquitur; Ror. R. R. p. 1434 : 
 Kearney ; Pa. R. R. 124 Pa. 462, 10 Am. 
 St. 601, 2 L. R. A. 820, citing Stokes : 
 cases, 25 Or. 320, 27 L. R. A. 283 ; 
 Treadwell, 80 Cal. 589, 5 L. R. A. 498 ; 
 Sto. Bail. 592-601: cases; Spellman, 36 
 Neb. 890, 20 L. R. A. 316 ; ext. n. ; 179 
 U. S. 663. 
 
 Presumptions of negligence from happening 
 of accident. Chicago R. R. 163 111. 477, 
 54 Am. St. 478, n. ; lies ipsa loquitur; 
 Kearney, Story, Bailm. 592-601 : cases. 
 Johnson, 89 Minn. 310, 99 Am. St. 571 
 (innkeeper prima facie liable if goods of 
 guest are lost). 
 
 Derailment of a coach is prima facie evi- 
 dence of negligence. Res ipsa loquitur; 
 Kearney ; Stokes ; 1 Add. Torts, 546 ; Pa. 
 R. R., supra. 
 
 Passenger acting to escape peril to 
 which the carrier has exposed him, is not 
 guilty of contributory negligence. Stokes ; 
 Hutch. Carr. 662, sub, Volenti. Nor when 
 put suddenly to election by the negligence 
 of the carrier. Stokes ; Volenti, etc. 
 
 208. HAMMACK V. 'WHITE (18G2) 11 
 Com. B. N. S. 588, 103 E. C. L., Bigl L. 
 C. Torts, 570-601, n., Ball, Torts, 211 ; 
 
 Leading Cases.— 208. Hammack. 
 
 stated, Bigl. L. C. Torts, 594, 18 Rul 
 Cas. 705, 1 Add. Torts, 544 ; cited, Cool ' 
 Bish. Add. Torts, 33, Bro. Max 393' 
 Shear., Whart., Bigl. L. C. Torts' 582 
 Week, Dam. Abs. 118, 128, 1 Wh Ev' 
 359, Buswell, Pers. Inj. Ill, 10 Mews' b! 
 C. L. 
 
 The mere happening of an accident is not 
 sufficient evidence of negligence to be left 
 to a jury; but the plaintiff, must give 
 some affirmative evidence of negligence on 
 the part of the defendant. Hammack. 
 
 Negligence. Trying a horse in a public 
 thoroughfare is not negligence per se 
 Hammack ; Brown v. Collins "Squib case " 
 
 Burden of proof is upon plaintiff. Some 
 evidence of want of skill, or carelessness 
 must appear to warrant submission to 
 jury. Hammack; Toomey, 3 C. B. (N. 
 S.) 146 ; Kearney ; Moak Torts, 309 
 
 209. BYBNE v. BOADLE (1862) 
 L? Url - t ?; 722 ' B, Sl- L. C. Torts, 578- 
 l?i' ?;,' ? al1, Torts ' 219 : state(J . 107 Cal. 
 549, 48 Am. St. 151, 29 L. R. A. 718 80 
 Md. 149, 45 Am. St. 333, 27 L r' a 
 156, 18 Rul. Cas. 706; cited. Cool. 799 
 Moak, 313, 1 Add. 228-234, 240 584 i 
 Wh. Ev. 357, 2 Best, Ev. 321, Busw 
 Pers. Inj. Ilia, 10 Mews' E. C. L — 
 Prima facie evidence of. 
 
 Byrne stated: Negligence, presumption of: 
 Res ipsa loquitur. A barrel of flour fell 
 upon plaintiff from defendant's window 
 above and injured him. Held, prima facie 
 evidence of negligence, and cast the onus 
 of proving want of negligence upon de- 
 fendant. Kearney; Stokes; Judson, 107 
 Cal. 549, 48 Am. St. 146, n. : cases, 29 
 L. R. A. 718 : Res ipsa loquitur; Labatt, 
 Mas. & Ser. 834. 
 
 Burden of proof on defendant. Labatt, 
 Mas. & Ser. 832 ; Ei incumbit, etc. Judi- 
 cial notice. Labatt, Mas. & Ser. 831; 
 De non apparentibus, etc. 
 
 Negligence is not inferable from the 
 ' mere occurrence of an accident. Labatt, 
 Mas. & Ser. 833. 
 
 210. LOSEE V. BUCHANAN (1873), 54 
 N. Y. 476, 1 Thomp. Neg. 47-115, ext. n., 
 10 Am. Rep. 623, Pattee, Torts, 143, Er- 
 win. Torts, 705, 94 Tex. 159, Cool. Torts, 
 q.v.; Frost, 42 S. C. 402, 46 Am. St. 
 736, n., 26 L. R. A. 693; Judson, 107 
 Cal. 549, 48 Am. St. 146, n., 29 L. R. A. 
 718, 36 Am. St. 814; Cool., Bish., Bigl. 
 Lead. Cas. Torts, 2 Gr. Ev. 469 ; Gilson 
 v. Delaware Canal Co. Cited, §§ 347, 348, 
 
 . Hughes' Proc. 
 
 Explosions; boilers; powder. Lawful busi- 
 ness and accident occurring, non-action- 
 able. Salisbury. Sic utere tuo, etc. 
 
 Directors of a corporation liable for its torts, 
 when, Losee. See Joint Tkespassers ; 
 Election of Remedies. Liability for ac- 
 cidents. 2 Cook, Corp. 682; id. 908; Sul- 
 livan, 161 N. Y. 290; Erwin, Torts, 486 
 (sating Hay and Losee cases). 19 Cyc. 4. 
 
 211. KEABNEY v. LONDON B. B. 
 (1870), L. R. 5 Q. B. 411, 6 Q. B. 759, 
 1 Thomp. Neg. 1220-1309, Bigl. L. C. 
 Torts : cases, Mews' E. C. L. ; Torts, 230. 
 
 Cited, §§ 103, 315, Hughes' Proc. 
 
 Cited, §§ 271, 296, Gr. & Rud. 
 
 Res ipsa loquitur; brick falling from bridge. 
 
DATUM POSTS. 
 
 99 
 
 Leading Cases. — 211. Kearney. . 
 
 A passenger on a highway, which ran un- 
 der a railway crossing, was struck by a 
 brick which fell from a perpendicular pier 
 belonging to the railway company and 
 injured the passenger. He at the time 
 heard a noise as of a train passing above. 
 Held, a prima facie case of negligence. 
 Stearns, 184 Pa. 519, 39 L. R. A. 842, 
 n., Busw. Pers. Inj. Ilia ; Griffin, 166 
 N. Y. 188, 82 Am. St. 630, n. (inference 
 of negligence). 113 Am St. 980-1031 ext. 
 n. (presumption from accident). Probatis 
 extremis , etc. ; Ex uno disces omnes; 
 Facta sunt potentiora' verbis; Res ascen- 
 <lit, etc. Acts speak as plainly as words. 
 See Waives. Fraud must appear from 
 all the facts. 2 Chit. Conts: 1039. From 
 the facts, relations and conditions, fraud 
 is judged. Farnam : 97. 
 
 Presumption of negligence. 1 Bailey, Pers. 
 Inj. 1597-1793 ; Kinkead, Torts ; Busw. 
 Pers. Inj. ; Calye's Case ; Labatt, Mas. & 
 Serv. 816-843. Conjecture : Robinson : — 
 N. C— 6 L. R. A. N. S. 337-365. 2 
 Bailey, Pers. Inj. 1672. See Res ipsa 
 loquitur. 
 
 Hes ipsa loquitur: the thing speahs for it- 
 self. Gleeson v. R. R., sub, Stokes. Whart. 
 Neg. 842 ; 1 Add. Torts. 33, 586 ; Rattan 
 v. R. R. (1906), Mo. Ap. : cases. Waller: 
 sub, Salisbury (injury from awning in 
 street). 113 Am. St. 980-1031. 6 Am. 
 St. 793 ; 80 Md. 149 ; 45 Am. St. 334 ; 
 107 Cal. 557; 48 Am. St. 151; 18 Rul. 
 Cas. 707 ; Moak, torts, 314 ; Shear. Neg. 
 448 ; 2 Dill. Corp. 1011 ; 2 Best, Ev. 320 ; 
 "Volkmar, 134 N. Y. 418, 30 Am. St. 678, 
 n. ; Busw. Pers. Inj. 189 ; The Douglas 
 <1882), 7 P. D. 151-161, 18 Rul. Cas. 
 695, n. ; Mews' B. C. L. ; Baltimore R. R. 
 v. S., 75 Md. 152, 32 Am. St. 372, Thyng, 
 156 Mass. 13, 32 Am. St. 425, n. ; Long 
 v. Pa. R. R. (1892), 147 Pa. 343, 30 Am. 
 St. 732, 14 L. R. A. 741 (baggage lost 
 in the Conemaugh dam disaster, which 
 swept away all things in the valley, in- 
 cluding Johnstown, speaks for itself ; Ac- 
 tus Dei, etc.) (bursting boiler) ; Huey, 
 121 Pa. 238, 6 Am. St. 790, ext. n. (dan- 
 gerous premises injuring one thereon ; 
 presumptions from; duties of owners). In- 
 demaur ; Heaven ; Howser, 80 Md. 146, 
 45 Am. St. 332, 27 L. R. A. 154 ; Uggla, 
 160 Mass. 351, 39 Am. St. 481, n. ; Spell- 
 man, 36 Neb. 890, 38 Am. St. 753 ; Jud- 
 son, supra (explosion raises presumption 
 of negligence) ; Hart, 157 111. 9, 48 Am. 
 St. 298, 29 L. R. A. 492 ; Hawkins, 3 
 WasS. 592, 16 L. R. A. 808 ; Hendrickson, 
 49 Minn. 245, 16 L. R. A. 261-267, ext. n. 
 (presumption when one is found dead) ; 
 Haynes, 114 N. C. 203, 19 S. B. 344, 41 
 Am. St. 786, n., 26 L. R. A. 810 ; 3 
 Cook, Corp. 9376 ; stated and approved : 
 Denver Co., 21 Colo. 371, 31 L. R. A. 
 566-593, ext. n. ; cases (electric wires in 
 streets) ; "Squib Case." 
 
 Prima facie evidence means sufficient evi- 
 dence upon a fact to submit it to a jury 
 
 Leading Cases. — 211. Kearney. 
 
 — more than a scintilla is evidence suf- 
 ficient to ground a stronger belief than 
 mere suspicion or conjecture. Citizens' 
 Ry. : 186. Prima facie evidence was in- 
 troduced in Piper v. Pearson. Prima facie 
 evidence is sufficient evidence to send a 
 case to a jury, unless the evidence to 
 the contrary is overwhelming. Simply 
 contradicting a prima facie case with one 
 witness is no ground for withdrawing a 
 case from a jury. Contra: Pullman Co. v. 
 Freudenstein (1893), 3 Colo. Ap. 540 (a 
 most exceptional case denying the general 
 rule). 
 
 Hirer of a horse, receiving it in sound 
 condition but returning it injured, must 
 be proven negligent ; negligence is not 
 presumed. Maloney, 60 Vt. 471, 6 Am. 
 St. 135. This case should not apply 
 where hirer admittedly continued to use a 
 horse after the fact appeared that its fur- 
 ther use would greatly damage or ruin it. 
 2 Kent, 587, n. 
 Sufficient evidence of negligence or motive. 
 Dant V. S. ; Cotton, sub, Law of the 
 Road: Green, 109 N. Y. 297, 4 Am. St. 
 450 ; Cf. Kearney ; Jones, Neg. Corp. ; 2 
 Kent, 5'88 (Warehousemen). See Probatis, 
 etc. ; Res ipsa loquitur. See Malice. 
 
 212. DANT v. S. (1S82), 83 Ind. 60, 3 
 Crim. Law Mag. 816-826, ext. n. 
 
 Cited, § 294, Gr. & Rud. 
 
 Dant stated: Indictments; circumstantial 
 evidence. Sale of intoxicating liquor on 
 the Sabbath is sufficiently proved from the 
 circumstance that the door of the saloon 
 was open, and that witnesses on the side- 
 walk saw the defendant delivering cus- 
 tomers something the color of whisky, out 
 of a small glass about the size of a 
 whisky glass, and the delivery of coin, 
 and the return of change ; the venue being 
 also proven. Res ipsa -loquitur ; Hickory: 
 194 ; Citizens' Ry. : 186. 
 
 Arson; conviction upon circumstantial evi- 
 dence; what sufficient. S. v. Halleck, 65 
 Wis. 147, 7 Crim. Law Mag. 643, 1 Bish. 
 Crim. Proc. 1125, 2 id. 53. 
 
 Instructive cases on : Peltner's, 4 Crim. Law 
 Mag. 157-171 (interesting history of the 
 case) ; 1 Wigm. Bv. 219-429. 
 
 213. D1DSBTJBY v. THOMAS, 2 Sm. L. 
 C. 353-364, 11th ed. See Hearsay Evi- 
 dence. 
 
 213a. STRONG v. S. (1882), 86 Ind. 
 
 208, 44 Am. Rep. 292-308, n. ; 1 Bish. 
 
 Cr. Proc. 112V; S. v. Kelly, 65 Vt. 531, 
 
 36 Am. St. 884, n. ; C. v. Jackson, 132 
 
 Mass. 16, 44 Am. Rep. 299, n. ; Mallory 
 
 v. S., 37 Tex. Cr. Rep. 482, 66 Am. St. 
 
 808, n. (forgery) ; P. v. Molrneux. 
 Cited, §§ 334, 336, Hughes' Proc. ; § ' 278, 
 
 Gr. & Rud. 
 Evidence; intent; collateral facts; when 
 
 they may be shown to prove inte"ht. 
 
 Strong. See Actus non facit reum, etc. ; 
 
 Res inter alios Acta, etc. ; R. v. Wylie ; 
 
 R. v. Ellis ; Bristow : 135. 
 System; is admissible to prove intent. Res 
 
 inter alios acta, etc. ; R. v. Francis ; R. v. 
 
 Carter ; 1 Wh. Ev. 20-46 ; Sykes v. S. 
 
100 
 
 DATUM POSTS. 
 
 Leading Oases.— 213a. Strong. 
 
 112 Tenn. 572, 105 Am. St. 972-1006 ext. 
 n. ; 12 Cyc. 406-412, 16 Cyc. 1155 ; 21 
 Cyc. 916 ; P. v. Molineux, 168 N. Y. 264, 
 62 L. R. A. 193-357, ext. n. ; S. v. La Page, 
 57 N. 'H. 245, 1 Am. Crim. R. 506-582 ; 
 Defrese v. S. 
 
 Collateral facts; are often admissible to 
 ■prove the principal fact in issue. Strong ; 
 R. v. Wylie ; R. v. Ellis ; Res inter alios, 
 etc. ; Moore v. U. S., 150 U. S. 57 ; R. v. 
 Francis; 1 Bish. Cr. Proc. 1120-1129 ;' 2 
 id. 8 Carson). 
 
 Presumption from the commission of another 
 crime. 1 Bish. Cr. Proc. 1220-1229. 
 Facts necessary to explain or introduce 
 relevant tacts. Clark, Crim. Proc. 195. 
 Motive ; any fact that shows a motive to 
 commit the crime charged, is admissible. 
 Clark, Crim. Proc. 196. Recent possession 
 of fruits of crime. R. v. Partridge : 190. 
 Abortion, cards and circulars of accused 
 are admissible. C. v. Barrows (1900), 
 176 Mass. 17, 79 Am. St. 296. 
 
 Assault and battery; previous altercations. 
 Hannabalson, 116 Iowa, 457, 93 Am. St. 
 250. 
 
 213b. R. v. ELLIS (1826), 9 Dowl. & 
 Ry. 174, 6 Barn. & Cress. 145 (13 E. C. 
 L. R.), 2 Lead. Crim. Cas. (B. & H.) 
 18-25; 11 Rul. Cas. 237. 
 
 One transaction may include distinct acts or 
 takings, and be separated by intervals of 
 time (R. v. Ellis), e. g., the stealing of 
 gas and consuming it. R. v. Firth (1869), 
 Law Rep. 1 C. C. 177 ; stated, note, R. v. 
 Ellis, B. & H. Lead. Crim. Cas. ; cited, 2 
 Bish. C. L. 798 ; 7 Crim. Law Mag. 711- 
 723 ; R. v. Partridge (possession of stolen 
 goods) ; Res ipsa. 
 
 Splitting crimes, not permissible. 2 Van 
 Fleet, For. Adj. 595-628 ; 7 Crim. Law 
 Mag. 714-715 ; Bendernagle ; notes, 58 
 Am. Dec. 539; 3. v. Warren (1893), 77 
 Md. 121, 39 Am. St. 401, n. ; S. \. Emery 
 (1895), 68 Vt. 109, 54 Am. St. 878, n. 
 See Res Adjudicata. 
 
 Several felonies parts of one transaction; 
 one as evidence to show the character of 
 another. "The evidence must correspond 
 with the allegations and be confined to the 
 point in issue," has exceptions in counter- 
 feiting, poisoning cases, etc. Strong ; R. 
 v. Wylie ; Res inter alios. See System ; 
 
 1 Whart. Ev. 20-45 ; P. v. Molineux. 
 
 B. v. Whiley or Wylie (1804), 2 Leach, 983, 
 
 2 Ld. Crim. Cas. (B. & H.) 26-34; R. v. 
 Holt (1860), 11, 8 Cox, C. C. 411; 11 
 Rul. Cas. 237 ; 2 Best, Ev. 297, 1 Bish. 
 Cr. Proc. 1126, 2 id. 261. Admissibility 
 of separate offenses to prove intention — 
 system. Ex uno disces omnes. 1 Whart 
 Ev. 20-45 ; Strong : 213a. 
 
 Postession of stolen goods; presumptions 
 
 from. R. v. Partridge; Res ipsa loquitur. 
 
 S130. HIGHAM v. EIDGWAY (18081 
 
 10 East, 2 Sm. L. C. 361-365, 8th ed •' 
 327-352, 11th ed. ; Thayer, Cas. Ev. 557 
 
 11 Rul. Cas. 266-281, n., 10 R. R. 109[ 
 Mews' E. C. L. ; Nicholls v. Webb (1823)' 
 8 Wheat. (U. S.) 326 (5 L. ed. 628) ;' 
 cited, sub, Price : 213f, 1 Gr. Ev. 116, 147, 
 
 Leading Cases. — 213c. Higham. 
 
 149-151, 1 Whart. Ev. 226, 229, 239, 1 
 Tay. Ev. ; 1 Best, Ev. 117, 2 id. 500 • 
 Bro. Max. 961. 
 
 Cited, §§ 112, 334, 341, Hughes' Proc. 
 
 Higham stated : In the settlement of an 
 estate it became material to prove the 
 date of birth of William Fowden. To- 
 prove this, a man-midwife's entry in his 
 books, other dates and occurrences in the 
 ordinary course of business, accompanied 
 by another entry in his ledger of the 
 charge for the service, and a memoran- 
 dum of payment at a later date were ad- 
 missible. 
 
 Entries and declarations against interest* 
 Higham; Middleton, 10 B. & C. 317 (21 
 E. C. L. R.), Thayer Cas. Ev. 562, stating 
 Higham; Davies, 6 M. & W. 153, Thayer, 
 Cas. Ev. 567, stating Higham ; R. v. 
 Parish of Birmingham, 1 B. & S. 763, 101 
 E. C. L. R., Thayer, Cas. Ev. 568, stating 
 Higham ; Smith, L. R. 2 Q. B. 326,. 
 Thayer, Cas Ev. 570, stating Higham; 
 Taylor, 3 Ch. Div. 605, Thayer Cas. Ev. 
 575 (entry against interest) ; Mahaska; 
 
 I Gr. Ev. 147-155 ; Dennis, 19 Ala. 29, 
 54 Am. Dec. 186 (principal's declarations 
 bind surety only when part of the res 
 gestm). Declarations of an officer that he 
 was removed when the bond sued on was: 
 executed, is admissible against his heirs, 
 and executor, where (1) the declarant 
 is dead; (2) where the declaration is 
 against interest ; (3) of a fact personally 
 cognizable. Mahaska County Case ; Brain, 
 
 II M. & W. 773 ; Gilchrist, 1 Bailey, Eq. 
 (S. C.) 492, Ell. Ev. 476-494. See 
 Declarations against Interest. 
 
 213d. COUNT'S' OF MAHASKA v. XXT- 
 GALLS (an excellent case, stating Nich- 
 olls v. Webb and Higham), 16 Iowa, 81; 
 Thayer, Ev. 580-5S8 : cases ; Dill. Corp., 
 Beach, 2 Wh. Ev. 1212 ; Framingham Mfg. 
 Co., 2 Pick. (Mass.) 532, Thayer, Cas. 
 Ev. 578; Berry, 4 T. R. (D. & E.) 514; 
 stated, 2 Pick. 532 (entries against inter- 
 est). 
 
 Mahaska stated : If a person has peculiar 
 means of knowing a fact, and makes a 
 declaration or written entry of that fact, 
 which is against his interest at the time, 
 it is evidence of the fact as between third 
 persons after his death. Higham; 11 
 Rul. Cas. 266 ; Bro. Max. 961. 
 
 Evidence ; admissions. Declarations and en- 
 tries of deceased persons contrary to in- 
 terest are admissible in evidence. Res 
 inter alios acta, etc. ; Price : 213/ ; Ma- 
 haska (declarations against interest). 
 Halverson, 87 Minn. 18, 94 Am. St. 669- 
 683, ext. n. (testimony of absent, dead or 
 subsequently disqualified witnesses). 
 
 213e. DRAYTON V. WELLS (1819). 1 
 N. & M. (S. C.) 409, 9 Am. Dec. 718; 
 Thayer, Cas. Ev. 337, 1 Gr. Ev. 163, 1 
 Phil. Ev. 179, 394-396, 2 id. 172 ; R. v. 
 Scaife (absent witness), 1 Tay. Ev. 440. 
 
 The testimony of a witness subsequently 
 dead, absent or disqualified may be proved 
 in four cases : 1. Where the witness is 
 dead (Wright v. Tatham) ; 2. Where in- 
 sane; 3. Where beyond the seas (Magill)r 
 
DATUM POSTS. 
 
 101 
 
 Leading Cases. — 213e. Drayton. 
 
 4 Serg. & B. (Pa.) 317, 8 Am. Dec. 713, 
 n. Contra : Bergen v. P. 17 111. 426 ; 65 
 Am. Deo. 672-679, n. Shorthand report 
 of, admissible to prove. Omaha, 35 Neb. 
 68, 37 Am. St. 432, n. ; 4. When kept 
 away by the opposite party. Drayton ; 
 R. v. Scaife ; Nullus commodum capere, 
 etc. 
 
 The rule applies to civil and criminal 
 cases alike. U. S. v. Macomb, 5 McLean, 
 286, contra cases ; Thayer Cas. Ev. 339 ; 
 C. v. Richards, 18 Pick. 434; R. V. 
 Joliffe, 4 Term Rep. (D. & E.) 285 ; Ruch, 
 97 U. S. 693, Mattox, 156 U. S. 237. 
 Testimony of witnesses subsequently dead, 
 absent or disqualified. Drayton ; Magill, 
 supra; 1 Gr. Ev. 163-168 ; 1 Tay. Ev. 
 433-447; 1 Rice, Ev. 496; 1 Phil. Ev. 
 389-401; 1 Wh. Ev. 177-180; Wh. Cr. 
 Ev. 227-231 ; 1 Bish. Cr. Proc. 1099 ; 
 Bergen v. P., supra; Davis, 96 Mo. 401, 
 2 L. R. A. 78, n. ; 1 Bish. Cr. Proc. 1194- 
 1206; Clark, Cr. Proc. 215; 94 Am. St. 
 669-683. Admissibility of, an exception 
 to the rule rejecting hearsay. Res inter 
 alios, etc. 
 213f. PRICE V. TORBINGTON (Earl 
 of) (1704), 1 Salk. 285, 1 Lord Raym. 
 873 ; Thayer, Cas. Ev. 473, 1 Sm. L. C. 
 563-614, n. ; 1 Gr. Ev. 110, 116 ; Welsh, 
 15 Mass. 380, Thayer, Cas. Ev. 481, 1 
 Wh. Ev. 238, 242, 726; 2 Danl. Negri. 
 Insts. 1057, 2 Pars. N. & B. 495, Bro. 
 Max. 964, Tay. Ev. ; Merrill, 16 Wend. 
 586, 30 Am. Dec. 130, 2 Best, Ev. 501. 
 Cited, §§ 112, 334, 341, Hughes' Proc. 
 Cited, § 272, Gr. & Rud. 
 
 Evidence; admissions; books of account, 
 entries in. Declarations of deceased per- 
 sons in the course of business admissible 
 in evidence. Price ; Higham ; Res inter 
 alios acta, etc. ; S. v. Bacon ; 1 Gr. Ev. 
 114-120 ; Lassone, 66 N. H. 345, 17 L. R. 
 A. 525 : stated, Price ; Union Bank, 3 
 Pick. 96, 15 Am. Dec. 181-198, ext. n. ; 
 House, 141 111. 290, 33 Am. St. 307, n. ; 
 Nicholls, 8 Wheat. 326, Thayer, Cas. Ev. 
 485, stating Pritt, 3 Camp. (Eng.) 305, 
 Thayer, Cas. Ev. 480, also Hi&taim ; 
 Moore. 165 Pa. 294, 44 Am. St. 664 ; 
 Smith, 163 N. Y. 168, 52 L. R. A. 545- 
 610, ext. n. (books of account in one's 
 own favor) . See Books : And. Die, Bouv. 
 Die. ; Ell. Ev. 454-475. 
 
 Books of account. 1. The only books 
 which can be irtroduced are books of 
 original entry. This does not necessarily 
 mean the memorandum book in which 
 certain data have been set down as a ba- 
 sis for charge, but it means the book in 
 which the actual charges have been made. 
 For instance, it has been held, where it 
 appeared that a certain book had been 
 used as a memorandum book, from which 
 an entry of charges against parties in 
 what was called the "sales book" was 
 made, the sales book was the book receiv- 
 able in evidence as the book of original 
 entry, and not the memorandum book ; 
 and where it appeared that the ledger 
 was the parties' book of original entries, 
 that book has been admitted as evidence. 
 Rationale. 1 Gr. Ev. 438 ; S. v. Bacon. 
 Book must contain entries with more per- 
 sons than the one against whom it is of- 
 
 Leading Cases. — 213f. Price. 
 
 fered in evidence. Pulton, 178 Pa. 78, 35 
 L. R. A. 133, n. 
 
 2. The books must be verified by the 
 oath of the party who made the entries. 
 Bates, 151 U. S. 149, or a sufficient rea- 
 son must be given why such verification 
 is not made. If, however, the clerk or 
 party who made the entry is dead (Mer- 
 rill), or, for any other reason, cannot be 
 produced, the books may, upon proof of 
 their genuineness of the evident right of 
 the party who made the entries to make 
 them, and that it was his duty to make 
 them, be received as evidence : and in the 
 absence of evidence to the contrary, will 
 be sufficient to establish a prima facie 
 case. 1 Gr. Ev. 115. 
 
 3. The books must show a continuous 
 dealing with persons generally, or several 
 items of charge, at different times, 
 against the other party in the same book, 
 or set of books. A mere occasional entry 
 made by a party as a memorandum of a 
 transaction will not be admissible. It 
 would be too easy for a litigant to make 
 such an entry long after the transaction, 
 and give it a weight with the jury far 
 beyond its real worth. The entries which 
 are offered must appear to be a part of 
 the series of transactions, and must have 
 been made in regular order with other 
 transactions of the same date. The books 
 must be regularly kept ; loose and un- 
 verified memoranda will not do. Bates 
 v. Preble, supra. Nor can a witness re- 
 fresh his memory from anything but 
 original memoranda. S. v. Bacon; Clu- 
 ett, 100 Mich. 193, 43 Am. St. 446, n. 
 (fair on face and in ordinary and usual 
 way) ; Higham. A shingle, upon which 
 an account is kept by a woodman, is ad- 
 missible. Kendall, 14 Me. 30, 30 Am. 
 Dec. 728. 
 
 4. The entries must have been made at 
 the time of the transaction. The proba- 
 bilities are that there was then no motive 
 to falsify. After the lawsuit has begun, 
 entries made by either party are made 
 under the strongest motive to misrepre- 
 sent, and are worthless. 1 Gr. Ev. 115, 
 116, 437, 438 ; S. v. Bacon. They must 
 be contemporaneous ; but objection upon 
 this may be waived. R. R., 60 Ark. 333, 
 46 Am. St. 202 ; Burley, 111 U. S. 216. 
 Must be original data, and not copied 
 from other. Harmon, 41 Or. 587, 93 Am. 
 St. 748, n., important rules. 
 
 5. The entries must have been made in 
 the ordinary course of business. Higham ; 
 that is, a dry goods dealer could not prove 
 by his books the charge made for the sale 
 of a horse and wagon ; neither could he 
 show a charge made for a sum of money » 
 loaned, because he is not in the business 
 of loaning money or dealing in horses. 
 Some courts, however, will receive books 
 as evidence of loans of money where the 
 sums are small, say not more than Ave or 
 ten dollars. Note, 46 Am. St. 208. 
 
 6. If the entries are made by a clerk 
 it must have been a part of his duties to 
 make such entries; and if the entry is 
 made by a clerk who ordinarily had noth- 
 ing to do with the books, it is probable 
 that such an entry would not be admissi- 
 ble. Price; 1 Gr. Ev. 116, 117. 
 
 7. The entries made must have been 
 within the ordinary scope of the employ- 
 ment of the party making than. A mem- 
 orandum voluntarily made by the book- 
 
102 
 
 DATUM POSTS. 
 
 Leading Cases.— 213f. Price. 
 
 keeper of the same transaction, outside of 
 the line of his work, is not admissible. 
 Security, 85 Iowa, 543, 39 Am. St. 311, 
 n. ; 1 Gr. Ev. 117 ; 96 Am. St. 208. 
 
 8. The entry must have teen made by 
 some one who knew the facts recited 
 therein, or at least whose duty it was to 
 know them. Price. 
 
 9. There must have been no more mo- 
 tive to falsify that particular transaction 
 than any other transaction entered at the 
 time. 
 
 Are admissible from necessity. Fire- 
 man's Co. v. R. R., 138 N. C. 42, 107 Am. 
 St. 517-526. §§ 46, 50, Gr. & Rud. 
 
 Memorandum to refresh memory ; im- 
 portant rule. S. v. Bacon; 1 Gr. Ev. 437, 
 438. 
 S13g. C. v. GANNETT (1861), 1 Allen 
 (Mass.), 7, 79 Am. Dec. 602, n. ; 2 Bish. 
 Cr. Proc. 2, 112, 116. . 
 
 Gannett stated: Evidence that there 
 was no noise nor disturbance of the peace 
 in a house or among the neighborhood 
 immaterial and properly excluded on an 
 indictment for keeping a house of ill- 
 fame. Gannett. Indictment for keeping 
 house of ill-fame will lie, though defend- 
 ant merely aided and assisted others in 
 keeping the same. R. v. Almon ; R. v. 
 Michael ; Hipp v. S. 
 
 Hearsay; general reputation; disorder- 
 ly house. Evidence of general bad char- 
 acter for chastity of females who fre- 
 quent house, is competent to show that 
 the house is of bad repute on indictment 
 for keeping a house of ill-fame. Gan- 
 nett; O'Brien, 28 Mich. 212, 2 Crim. Law 
 Rep. (Green) 571 ; cited, 1 Bish. C. L. 
 1088 ; Beard v. S., 71 Md. 275, 4 L. R. A. 
 675, n. ; S. v. Thomas : 257. Contra, 
 Kenyon v. P., 26 N. Y. 203, 84 Am. Dec. 
 177, n. 
 
 In misdemeanors, all who participate in 
 a criminal act are deemed to be princi- 
 pals. Gannett ; R. v. Manning ; R. v. 
 Stevens ; C. v. Brown, 147 Mass. 585, 13 
 L. R. A. 195, n. (aiders and abettors of 
 crime are all principals). 
 
 Conversation of men held outside of al- 
 leged house of ill-fame, and immediately 
 after coming out of it, but not in the 
 presence of the defendant or any of the 
 inmates, concerning what had taken place 
 in the house, is not admissible on the 
 trial of an indictment for keeping a house 
 of ill-fame. C. v. Harwood, 4 Gray, 41, 
 64 Am. Dec. 50, n. ; Res inter alios, etc. 
 
 Accused must be shown to be the keep- 
 er ; general reputation insufficient. But 
 this may be proved by his acts and con- 
 duct. Res ipsa loquitur; S. v. Hand, 7 
 Iowa, 411, 71 Am. Dec. 453, n. General 
 reputation may be ordained sufficient by 
 statute. S. v. Thomas. 
 
 Impeachment of witnesses. Here the 
 general reputation of the witness for 
 veracity is singularly sought, yet it is a 
 proper question to ask the witness what 
 degrees of credit he gives the testimony 
 involved. JFalsus in uno. 
 
 Rape. Prosecutrix's answers to collat- 
 eral questions are conclusive. Here gen- 
 eral reputation for chastity is immaterial 
 yet it is held her general reputation for 
 indecency may be inquired after to affect 
 her testimony. Sub, R. v. Riley, post 
 This widens the field founded on the rea- 
 soning, that one may be perfectly upright 
 
 Leading Cases.— 213g. Gannett. 
 
 In one department of life and abandoned 
 in others. 
 
 Disorderly, bawdy and tippling house 
 may be proven such ay general reputa- 
 tion. This rests on the reason, that one 
 will defend attacks upon his habitat, 
 house, or place of business. Inculpatory 
 circumstances that surround such places 
 are easily overcome, explained or pre- 
 vented, if erroneously comprehended. 
 Some things must be proved by system 
 (Res inter alios, etc.), or by circum- 
 stances, as adultery. Res ipsa loquitur. 
 
 One who permits a chain of circum- 
 stances to arise and remain around him, 
 from which irrefragable inferences are 
 made, should not complain of the ordi- 
 nary, natural, direct and probable effects 
 of his own conduct or acts. 
 
 Volenti non fit injuria. Prom this 
 standpoint, defamation suits should be 
 favored ; that one should defend his char- 
 acter as he would his person or property. 
 "A speedy remedy shall be afforded for 
 every injury of life, property, liberty or 
 character," is a common guarantee. Ev- 
 ery good citizen must stand for Salus 
 populi suprema lex, truth and justice. Con- 
 spiracies against these often exist, but 
 they invite, and sooner or later are over- 
 taken with just retribution. Conspiracies 
 only deny good reputation to the citizen. 
 Respectability is boundless and should be 
 given all who live respectably, and courts 
 should protect it, otherwise guaranties for 
 its protection should be omitted from 
 
 ' great charters. 
 
 21311. B. v. REC.EY (1887), 18 Q. B. D. 
 481, 16 Cox, C. C. 191, Chaplin, Crim. 
 Cas. 279. 
 
 Rape; character of prosecutrix; relevancy 
 of evidence; collateral facts. Relation of 
 prosecutrix and accused is relevant, but 
 not her relations with third persons. Res 
 inter alios acta, etc. And if these are 
 inquired after, her answers are conclusive 
 — they cannot be contradicted. 1 Gr. Ev. 
 448-450. Held, general indecency of 
 prosecutrix may be sworn. R. v. Tissing- 
 ton, 1 Cox, C. C. 48. And this may 
 then be rebutted. Res inter alios acta, 
 etc. ; Rice v. S., 35 Fla. 326, 48 Am. St. 
 245, n. 
 
 Collateral facts; if inquired after, the an- 
 swers thereto are conclusive upon the in- 
 terrogator. 1 Gr. Ev. 448-450. This rule 
 is important, 
 
 214. TBIST v. CHILD (1874), 21 Wall. 
 (U. S.) 441-453, 2 L. ed. Co. 623, Wil- 
 liston, Conts. 210, Huff. & W. Conts, 340, 
 Mech. Ag. 21, Pub. Off. 360, Huff. Ag. 27 
 (legality of objects), 83 (compensation; 
 illegal services) ; Tiff. ; Greenh. Pub. Pol. 
 359, Cool. Const. Lim. 165. See citations, 
 Mech. Ag., Pub. Off. Throop, Pub. Off., 
 Ans., Pars., Bish., Chit., Beach, Conts. ; 
 Cool. Const. Lim., 2 Pom. Eq.. 3 Gr. Ev. 
 71 ; Clippinger, 5 Watts & Serg. 315, 40 
 Am. Dec. 519-523, 1 Sto. Eq. PI. 293a; 
 Basket, 115 N. C. 448, 44 Am. St. 463, 
 n., Hazleton v. Sheckells. §§ 7, 20, 88, 
 133, 134, Hughes' Conts. 
 
 Cited, pp. 13, 33 ; §§ 1, 4, 5, 56, 7, 13, 14, 
 18, 20, 21, 50, 52, 76, 126, 145, 149, 156, 
 158, 182, 204, 299, Hughes' Proc; §§ 1, 
 46, 77, 80, 100, 123, 137, 139, 151, 163, 
 262, 284, 292, Gr. & Rud. 
 
DATUM POSTS. 
 
 103 
 
 Leading Oases. — 214. Trist. 
 
 Trist stated: Trist had a claim against the 
 United States and engaged Child to "lob- 
 by" it through congress lor twenty-five 
 per cent., in the sense in which the word 
 "lobby" is used. Held, the contract was 
 void. This case well illustrates illegal 
 contracts, and the opinion, with great 
 force and eloquence, points out the neces- 
 sity of government to exact loyal devotion 
 from its citizens and officers. 
 
 In pari delicto contracts of lobbyist and 
 secret agents. These are void for reasons 
 of public policy ; for they undermine the 
 morals of the people and corrupt govern- 
 ment. If such influences and contracts 
 are not repressed ; this is a warning : 
 
 "A compact corps of venal solicitors, ven- 
 ding their secret influences, will invest the 
 capital of the Union and of every state 
 until corruption shall become the normal 
 condition of the body politic, and it will 
 be said of us as of Rome, — 'Omne Romw 
 
 Marshall, v. B. & O. R. R. (1853), 16 
 How. 314 ; Pars. Conts. ed., Bish. 499, 502 ; 
 Reinh. Ag. 11 ; Houlton, 60 Minn. 26, 30 
 L. R. A. 737, ext. n. ; Tool Co. ; Oscan- 
 yan: 41. 
 
 From the Marshall case we quote : 
 "The foundation of a republic is the virtue 
 of its citizens. They are at once sover- 
 eigns and subjects. As the foundation is 
 undermined the structure is weakened. 
 When it is destroyed the fabric must fall. 
 Such is the voice of universal history." 
 
 Mont. Spir. Laws. Washington's fare- 
 well Address : vol. 8, World's Orators ; 
 Judah P. Benjamin : 10 id. p. 97 (virtue 
 the corner-stone of republican govern- 
 ment) . 
 The rationale of construction is for protec- 
 tion, education and moral advancement. 
 Upon these depend the usefulness and sta- 
 bility of government. Borden; Windsor; 
 Oakley. Wager contracts are construed 
 from this policy. See Contracts ; Chris- 
 tianity. 
 Construction is for the perpetuity of govern- 
 ment. Brooks : 370 ; Murray : 319 ; Whit- 
 worth, 2 Chit. Conts. 971-1022 ; Church v. 
 TJ. S. 
 Constitutions yield to fundamental law. Oak- 
 ley : 222. "Parliament is omnipotent," 
 (Thorp Case), but its ordinances are re- 
 strained by fundamental law. Stockdale 
 V. Hansard; End. Stat. 182. A govern- 
 ment and its agencies flagitiously disre- 
 garding moral laws, the sense of natural 
 right and justice soon perishes from the 
 earth. Oakley and Dimes cases ; stated 
 in Newcome, 58 Tex. 141, 44 Am. Rep. 
 604 (Nemo debet esse judex, etc.). P. v. 
 Turner. "Where the laws of the Divinity 
 are neglected, human laws do not pros- 
 per." Summa ratio est J In prwsentia 
 majoris ; Concordare leges. See Chris- 
 tianity. Riggs. 
 The view that constitutions and statutes may 
 be construed to operate against superior 
 laws (Bison) is not supported by all de- 
 cisions Oakley and Newcome cases, 
 supra. Words used by great conventions 
 
 Leading Cases. — 214. Trist. 
 
 and parliaments are presumed from moral, 
 intelligent and patrioric agencies ; and 
 they should be construed accordingly. 
 Verba intentione. 
 Statutes are construed to exclude fraud. 
 Lester : 341 ; 1 Kent, 465 (mala fide pur- 
 chaser not protected, although the lan- 
 guage of a statute includes him, under a 
 registry act giving priority to claimants 
 under prior registered deed). Riggs. S. 
 v. Sheppard. 
 
 215. C. V. HESS (1892), 148 Pa. 98, 33 
 Am. St. 810, 17 L. R. A. 176, 23 Atl. 977. 
 
 Cited, p. 33, Hughes' Proc. ; §§ 119, 122, 136, 
 137, 203, 267, 294, Gr. & Rud. 
 
 Construction expands and contracts as exi- 
 gencies demand, and according to the 
 reason of the thing. Blake v. McCIung. 
 A change of circumstance is a change of 
 case. Modica circumstantia, etc. To meet 
 changes of circumstances and make the 
 principles of the common law applicable, 
 is the function of construction. 
 
 "This has sometimes been called the ex- 
 pansive property of the common law. If 
 the great mass of legal principles which 
 has descended to us under the name of 
 the common law were composed only of 
 iron-clad rules, it would be wholly unsuit- 
 ed to the present age and generation, and 
 the great changes which have taken place, 
 not only in the volume of business but in 
 the mode of conducting it. We are con- 
 stantly applying the accepted principles 
 of the common law to new phases and 
 modes of doing business. This is a ne- 
 cessity, dictated by common sense, and the 
 necessities of trade." 2 Cool. Tax. 829. 
 Absurdities are excluded. See Absurdi- 
 ties. 
 
 The constitution of the United States is 
 to be interpreted : 
 
 "In the light of the law as it existed at the 
 time it was adopted, not as reaching out 
 for new guaranties of the rights of the 
 citizen, but as securing to every individ- 
 ual such as he already possessed as a 
 British subject, such as his ancestors had 
 inherited and defended since the days of 
 Magna Charta." South Carolina v. U. S. 
 Mattox v. U. S., 156 U. S. 857 ; Tucker 
 Const. 857 ; Murray : 219. Concordare 
 leges legibus, etc. ; Lex non exacte definit. 
 
 216. S. V. BOLMN (1902), 107 La. 116, 
 31 So. 393, 90 Am. St. 280, n. 
 
 Cited, p. 33 ; § 43, Hughes' Proc. ; §§ 88, 
 . 122, Gr. & Rud. 
 
 Construction of statute — Expressio eorum, 
 etc. A statute making it a crime to shoot 
 at a person with intent to kill, without 
 making reference to specific intent, must 
 be construed with reference to legal prin- 
 ciples, and so as not to cut off the right 
 of self-defense. Hawaii. Concordare 
 leges, etc. ; In pari materia; Verba inten- 
 tione debent inservire. 
 
 Constitutional law; reasonableness of statute. 
 A statute, though unreasonable, can not 
 be declared invalid unless it conflicts with 
 constitutional principles. See Absurdity. 
 Oakley. 
 
 Title of an act may be taken in connec- 
 tion with its other parts to assist in re- 
 
104 
 
 DATUM POSTS. 
 
 Leading Cases.— 216. Bolden. 
 
 moving ambiguities, if the intent is not 
 plain. Bobel v. P. 
 
 A title to an act which serves to indi- 
 cate its object can not be said to have 
 misled the legislature at the time when it 
 was adopted. 
 
 A county may contract an indebtedness 
 in excess of its constitutional limitation, 
 to carry on essential functions. Sub, 
 Beard; 90 Am. St. 733. 
 
 There are cases in which the reason of 
 the law should prevail over its letter : 
 "The common sense of man approves the 
 judgment mentioned by Puffendorf, that 
 the Bolognian law, which enacted that 
 whoever drew blood in the streets should 
 be punished with the utmost severity, did 
 not extend to the surgeon who opened the 
 vein of a person that fell down in the 
 street in a fit. The same common sense 
 accepts the ruling applied by Plowden, 
 that the Statute of Edward II. which en- 
 acts that a prisoner who breaks prison 
 shall be guilty of felony, does not extend 
 to a prisoner who breaks out when the 
 prison is on fire ; for he is not to be 
 hanged because he would not stay to be 
 
 S. v. Bolden; V. S. v. Kirby (1868), 7 
 Wall. 582. Hawaii ; Harper : 218 ; Church 
 v. U. S. ; S. v. Sheppard. 
 
 In contrast is the view that under a 
 statute the murderer of an ancestor must 
 have his estate. Riggs : cases. 
 
 The rule in S. v. Bolden is the maxim 
 Lex non exacte, etc., 1 Bl. Com. 61, 431. 
 It was contended for by Coke, Hobart, 
 Holt, Kent (1 Kent, 448) and Field. U. 
 S. V. Kirby, supra; Indianapolis : 223 : 
 cases. Ita lex scripta est. Harper. 
 
 One may give liquor to a minor as a 
 guest under a statute forbidding it in 
 general language. P. v. Bird, 138 Mich. 
 31, 110 Am. St. 299. 
 Power of the judiciary to declare statutes 
 void. Marbury; Dash: 237a (Kent), 
 450 ; Cujus est instituere, etc. ; James v. 
 Bowman (act of Congress cannot include 
 crimes not intended by the constitution) ; 
 Lonstorf (codes do not include rights not 
 expressed). 
 217. DOVASTON V. FATTJTE (1795), 2 
 Hen. Bl. (Bng.) 527, 1 Sm. L. C. 140-190, 
 ext. n., 8th ed. ; 11th ed. (reviewing Eng- 
 lish cases) ; 2 Gray, Cas. Prop. 580. Cited, 
 pp. 7, 14, 16-26 ; §§ 1, 5, 8, 10, 16, 20, 22, 
 26, 27, 29-32, 35, 38, 78-82, 129, 155, 
 
 156, 204, 215, 217, Hughes Proc. ; §§ 11, 
 101, 102, 108, 119, 124, 143-144, 149, 
 
 157, 171, 174, 182, 197, 202, 223, 237, 
 239, 267, 271, 278, 297, Gr. & Rud. 
 
 Dovaston stated: D.'s cattle were in the 
 highway and P. distrained them therefor. 
 D. replevined. P. pleaded his right to 
 distrain and D. replied the cattle were in 
 the highway. He did not aver they were 
 ■ passing over it. This was necessary and re- 
 lating to this the pleading was uncertain, 
 ambiguous or equivocal when read in the 
 ligt of Verba fortius accipiuntur contra 
 proferentem (every presumption is to be 
 made against a pleader). The court would 
 not presume P. was a trespasser unless 
 
 Leading Oases. — 217. Dovaston. 
 
 this was alleged with certainty, which was 
 not done. For ambiguity D. lost his case. 
 His foundation was bad. An uncertain 
 reply was fatal. Debile fundamentum 
 fallit opus. Bro. Max. 180, 181. Buck v. 
 Colbath. 
 Dovaston well illustrates that the rules of 
 pleading are interactions, thus : The owner 
 of land adjacent to a highway owns to the 
 center thereof. His cession of it is for 
 specified purposes only. Expressio unius, 
 etc., namely, for uses of travel. This does 
 not give the right to depasture it nor to 
 herd nor stand cattle thereon. This is a 
 trespass in the law of real estate, be- 
 cause the dedication or grant was not for 
 that purpose. Therefore from this law of 
 real property the pleading was construed 
 and agreeably to one of Bacon's maxims 
 which is first above quoted. It is of uni- 
 versal application however. It applies to 
 all compacts, all documents. In pro- 
 cedure this maxim has a mystic influence 
 and should be well comprehended. Where 
 it is not, construction and procedure be- 
 come unsettled. It may be called a rule 
 of strict construction, still it is founded 
 in close logic and good sense. For cer- 
 tainty it is necessary. It is a rule in 
 res adjudicata, collateral attack and in all 
 tests of an adjudication and wherever the 
 question is, what was heard or adjudi- 
 cated. It should be considered in con- 
 nection with all these subjects, also in 
 considering the function of the general 
 demurrer, in searching the substantial 
 pleadings, and in considering objections 
 upon collateral attack. It should be com- 
 prehended in relation to the record or 
 constitutional rule, namely, what ought to 
 be of record must be proved by record 
 and by the right record, also the coram 
 judice rule, which is, consent cannot con- 
 fer jurisdiction of subject-matter. Rush- 
 ton : 5 ; Cruikshank : 232 (the study of 
 procedure is a study of government) ; 
 Davenport (111.); Moore; Sto. PI. 10; 
 Planing Mill. 
 De non apparentibus, etc. It applies in ap- 
 pellate procedure. The motion for a new 
 trial and all that relates to the statutory 
 record must affirmatively appear. Fast v. 
 Gray, 105 Mo. Ap. 694. The averment that 
 the cattle were in the highway could be 
 accepted as perfectly true and still D., the 
 owner, be liable. Proofs need not be 
 broader than the allegation. 1 Gr. Bv. 63. 
 Therefore had the plea been held good then 
 all that D. would have to prove was that 
 the cattle were in the highway. To prove 
 they were passing over it was something 
 additional to their being in it. This 
 brings into view another basic and most 
 important rule, which is, Frustra pro- 
 batur quod probatum non relevat (it is 
 vain to prove what is not alleged). This 
 is another phase of the rule requiring a 
 recovery secumdum allegata et probata. 
 Bristow ; Fish. 
 
DATUM POSTS. 
 
 105 
 
 Leading Cases. — 217. Dovaston. 
 
 The rule of construction in Dovaston 
 is the same in all states and in all sys- 
 tems. Certainty depends upon respect 
 of those rules and of their equal and 
 uniform application. Sto. PI. 10, 240- 
 256 ; Pain : 107 ; Hanford : 86 (conclu- 
 sions of law construed against the 
 pleader). 
 All courts respect these rules but not all 
 uniformly or consistently, and the conse- 
 quence is they unsettle jurisprudence. 
 Lange : 159. Departures from fundamen- 
 tal principles and labeling it, "American" 
 and the "modern," and the new and en- 
 lightened view, presents a very dubious 
 outlook to every real and well instructed 
 student. He will often see bewildering 
 degeneracy and incompetence boosted and 
 upheld by supposed leaders and teachers. 
 Disregard of those rules and maxims in- 
 troduces great confusion and as a conse- 
 quence, the cases when gathered upon a 
 page become incomprehensible. This re- 
 sults where affirmation and negation ap- 
 pear in the same volume or on the same 
 page and thereon no reference to or cita- 
 tions of the fundamental. 2 Cyc. 691- 
 692 : cases ; id. 715 ; 12 id. 372, 390 ; 16 
 id. 403-406 ; 2 Thomp. Tri. §§ 2310-2311 ; 
 And. Steph. PI. 230, 2d ed. : cases ; 
 Hughes' Proc. pp. 7-33 : cases, also its 
 citations and extended discussions of 
 Dovaston. "Widely found works on the 
 code may be cited either to sustain or 
 deny the rule, the maxim or the prin- 
 ciple involved. Possibly the codes and 
 practice acts suffer from no other one 
 cause so much as from a lack of com- 
 prehension of the rule in Dovaston and 
 the record rule. See Codes. Windsor : 
 1 (important observations). 
 In final tests of whether a party was heard 
 the rule of Dovaston leads. See Res Ad- 
 judicata; Collateral Attack; Audi 
 alteram partem. Whether one has been 
 heard or not is often a question of the 
 greatest import, especially where a judg- 
 ment and its record are relied upon to 
 prove a title or estoppel of record. Clem. 
 Then it is that the record offered must 
 show a matter upon which there could or 
 might have been a hearing, and further, 
 that an opportunity of a hearing was 
 afforded. Windsor ; Pennoyer ; Haddock ; 
 Planing Mill. See L. C 1-34, ante. 
 
 At all stages essential pleadings must 
 withstand the test of the general demurrer 
 and an application of the rule in Dovas- 
 ton. See Cause of Action. 
 
 Limitations of the liberal rule of plead- 
 ings are found in R. v. Goldsmith, U. S. 
 v. Mills, Waters and Waverton : 20, 70-71. 
 Upon close investigation, these limitations 
 will be found consistent with Dovaston 
 and the maxims. These should be con- 
 sidered with Vt res magis valeat quam 
 pereat. Dobson. 
 
 From the above the student should de- 
 termine whether or not procedure rests 
 
 Leading Cases. — 217. Dovaston. 
 
 on universal principles, or whether it is a 
 local or provincial subject. Works on 
 procedure do not cite its great cases as 
 works on contract, crime and tort cite 
 notable cases thereon. But cases like 
 Dovaston are expressly mentioned for de- 
 nouncement by modern writers. Works 
 widely advertised as student books ex- 
 clude all such cases and discussions. 
 J'Anson. See Preface. 
 
 Wherever records are necessary they must 
 be produced and they must be sufficient to 
 serve the purposes for which they are 
 conceived. If not so then they should not 
 be required ; they should be dispensed 
 with altogether. Vain and fruitless things 
 should never be required in a system of 
 rational procedure. To say that these 
 records are not always tested by the same 
 rules of construction or of certainty is a 
 reductio ad absurdum. Failing to per- 
 ceive this fact is a grave impediment to 
 the progress of the student. This proposi- 
 tion will find support in connection with 
 what is observed in reference to certainty, 
 codes and construction. 
 
 The principle in Dovaston is also asso- 
 ciated with these rules : "Consent cannot 
 give jurisdiction of subject-matter" ; "a 
 court is bound by its record" ; also this 
 definition, "pleadings are the juridical 
 means by which a court is invested with 
 jurisdiction of a subject-matter to ad- 
 judicate it." The general demurrer 
 searches the mandatory record and at- 
 taches to the first fault. What is a cause 
 of action? When has it been heard? Can 
 it be heard before it is properly stated 
 in the right record? Is it tested by variant 
 rules of construction from stage to stage 
 or at different times? 
 
 Parties cannot by consent or waiver at- 
 tract a larger or more liberal rule of con- 
 struction ; one that will include a subject- 
 matter today that would not yesterday. 
 Construction must be the same yesterday, 
 today, tomorrow, and forever. 
 
 What one does not clearly plead and define 
 he is presumed not to have. To illustrate, 
 it could never be presumed that Dovaston 
 had a license from Payne to pasture the 
 highway, because P. did not plead it. To 
 have proved it without pleading it would 
 not avail. Fish (111.). Probata will not 
 supply allegata. What ought to be of 
 record must be proved by record and by 
 the right record. Crain ; Cruikshank ; 
 Planing Mill ; Mallinckrodt, 12a; Dun- 
 lap, 105 Mo. Ap. 1, 127, 40 Mo. Ap. 525; 
 70 Mo. 524 ; 95 Mo. Ap. 94 ; Pennowfski, 
 — Mo. — , 103 S. W. 542, 543 : cases. 
 See Preface. 
 
 Defenses not pleaded are waived. Every 
 presumption is against a pleader. Crom- 
 well ; Field ; McKyring ; Marriot. As this 
 rule is applied in res adjudicata so it is 
 in all relations and at all stages. There 
 are no distinctions in rational procedure. 
 The rule in Dovaston is only a partic- 
 
106 
 
 DATUM POSTS. 
 
 Leading Oases.— 217. Dovaston. 
 
 ular application of Verba fortius, etc. It 
 is most instructive to consider this maxim 
 in all relations. Hughes' Proc. 215-222. 
 Ambiguum placitum, etc. Ambigua re- 
 sponsio, etc. 
 
 The allegation (U. S. V. Cruikshank), 
 the admission and denial (Dickson : 34 ; 
 Crain) ; and the issue (Munday : 79) are 
 all governed by the rule in Dovaston, 
 wherein it attached with fatal conse- 
 quences to the reply. From this arose 
 an implied admission. Dickson : 34 ; 48 
 L. E. A. 177-210, ext. u. ; Pain: 107; 
 Sto. PI. 10, 253a, 665. 
 
 This rule is universal. The integrity 
 of all the matters mentioned and of the 
 conserving principles of procedure de- 
 pends upon right conceptions of that 
 maxim. 
 
 The maxims above cited should be thor- 
 oughly comprehended. It should be per- 
 ceived that- time has well justified Bacon's 
 selection of Verba fortius accipiuntur con- 
 tra proferentem. It often appears as a 
 part of Ignorantia legis neminem excusat. 
 Codes cannot abolish these. 64 Cent. L. 
 J. 129-134; 169-174, 2 Hughes' Proc. 
 830-835. 
 
 A great question has arisen. Its chie f 
 gathering ground is New York, Indiana, 
 Illinois, Missouri, Iowa and Colorado, with 
 slight contributions from Texas, Arkansas 
 and some other states. This question is 
 the nature of procedure and its position 
 in jurisprudence. Starting with the prop- 
 osition that the study of procedure is a 
 study of government, there necessarily is 
 involved, in a discussion of this question, 
 much that relates to constitutional law. 
 By constitutional law we mean not only 
 the written constitution, but beyond and 
 underlying that, the unwritten or pre- 
 scriptive constitution embraced in the 
 maxims as well. The prescriptive con- 
 stitution must be considered in determin- 
 ing the validity of legislation, and yet 
 how little it is considered in some quar- 
 ters ! Prom any one of the states named, 
 enough can be picked out to show that it 
 is well and thoroughly taught as high- 
 class — orthodox — "American law," that if 
 a statute does not violate either the fed- 
 eral or the state constitution, then it is 
 valid and must be accepted and enforced 
 as law. Also that all matters relating to 
 the mandatory record, the pleading, the 
 allegation, the admission or the denial, 
 and the issue, properly come within the 
 province of legislation. What concerns 
 the establishment and the effect of those 
 matters has been conceded wholly to 
 legislative discretion, and certainly so in 
 Missouri, which for further illustration 
 will be particularly mentioned. The re- 
 sult of such a view of the power of legis- 
 lature is that it can make a judgment 
 valid and binding, although the court did 
 not have jurisdiction of the subject-mat- 
 ter, or the petition failed to state a 
 
 Leading Cases. — 217. Dovaston. 
 
 cause of action. Missouri expressly con- 
 cedes to the legislature a free hand for 
 the establishment of judicial procedure. 
 And the statutes enacted are heroically 
 antinomian in character. For brevity we 
 will state that they reverse the maxims: 
 "Every presumption is to be made against 
 the pleader," "It is vain to prove what 
 is not alleged" and "What is not juridi- 
 cally presented, cannot be judicially con- 
 sidered." In general the mandatory record 
 and pleadings were abolished as may be 
 indicated by the following clauses from 
 the statute of jeofails, and Amendments, 
 105 Mo. 469. "Imperfections for which 
 judgment will not be set aside"; * * * 
 "fifth, for any mispleading, miscontinuance 
 or discontinuance, insufficient pleading, 
 jeofail or misjoining issue ; * » * 
 eighth, for the want of any allegation or 
 averment on account of which omission 
 a demurrer could have been maintained ; 
 ninth, for omitting any allegation or aver- 
 ment without proving which the triers of 
 the issue ought not to have given such a 
 verdict." 
 
 The foregoing is a sample of matter 
 found on several pages relating to amend- 
 ments, variances and aider by judgment, 
 105 Mo. 469. The eighth clause above 
 quoted practically abolishes the general 
 demurrer, and the rule that the general 
 demurrer searches the entire record and 
 attaches to the first fault and its cognate 
 rules. It renders useless the motion in 
 arrest of judgment, because all these de- 
 fects are cured by the judgment itself. 
 Further, it abolishes collateral attack, be- 
 cause the judgment cures all defects in 
 the proceedings leading up to it. The 
 statute in question extirpates the con- 
 serving principles of procedure as gath- 
 ered and enumerated in Hughes' Pro- 
 cedure, pp. 8-14. This statute is opposed 
 to the view that the study of procedure 
 is a study of government. These statutes 
 passed in consonance with the teaching 
 that pleadings can be waived (2 Thomp. 
 Tri., §§ 2310, 2311; And. Steph. PI., § 
 230, 2d ed.) soon confronted the courts, 
 which, of course, were implored to follow 
 the statute because it was constitutional, 
 and therefore there was nothing more to 
 be said against it. The decisions show 
 that many of the judges acquiesce, while 
 others flatly nullify the statute. From 
 the premises a great number of decisions 
 have followed, and nothing less than an 
 irreconcilable conflict is raging through- 
 out administrative proceedings. Natural- 
 ly the statutory record is involved, and it 
 is made by courts which attempt to obey 
 unconstitutional statutes, to serve func- 
 tions for which it was never designed. 
 The decisions show that the confusion over 
 the uses of the mandatory and of the 
 statutory records is a bewilderment. This 
 without more, would disrupt any judicial 
 establishment, which in its overwhelm 
 
DATUM POSTS. 
 
 107 
 
 Leading Cases. — 217. Dovaston. 
 
 drags government and empires with it. 
 A government goes up or down as its laws 
 are stable or unstable. 
 
 The claim for three degrees of certain- 
 ty is a Jargon of words. Dovaston ; 
 Windsor : 1. 
 What is not juridically presented cannot be 
 judicially considered. Cruikshank ; Fish : 
 cases ; Moore : 19 : cases. Do nan appa- 
 ventibus, etc. ; Frustra probatur. McCar- 
 ty ; 144 Mo. 397, 402 (code) ; Mallin- 
 krodt (code). 
 
 The discussion of the principles in Do- 
 vaston may be likened to that in Shelley's 
 case, of which Kent made some observa- 
 tions that deserve to be well considered ; 
 therefore we quote them here : 
 "The juridical scholar, on whom his great 
 master, Coke, has bestowed some portion 
 of the 'gladsome light of jurisprudence,' 
 will scarcely be able to withhold an in- 
 voluntary sigh, as he casts a retrospective 
 glance over the piles of learning devoted 
 to destruction by an edict as sweeping and 
 unrelenting as the torch of Omar. He 
 must bid adieu forever to the renowned 
 discussions in Shelley's case, which were 
 so vehement and so protracted as to rouse 
 the sceptre of the haughty Elizabeth. He 
 may equally take leave of the multiplied 
 specimens of profound logic, skilful criti- 
 cism, and refined distinctions, which per- 
 vade the varied cases in law and equity, 
 from those of Shelley and Archer, down to 
 the direct collision between the courts of 
 law and equity, in the time of Lord Hard- 
 wicke. He will have no more concern 
 with the powerful and animated discus- 
 sions in Perrin v. Blake, which awakened 
 all that was noble and illustrious in tal- 
 ent and endowment, through every pre- 
 cinct of Westminster Hall. He will have 
 occasion no longer, in pursuit of the 
 learning of that case, to tread the clear 
 and bright paths illuminated by Sir Wil- 
 liam Blackstone's illustratious, or to study 
 and admire the spirited and ingenious dis- 
 sertations of Hargrave, the comprehen- 
 sive and profound disquisition of Fearne, 
 the acute and analytical essay of Preston, 
 the neat and orderly abridgment of Cruise, 
 and the severe and piercing criticisms of 
 Reeve. What I have, therefore, written 
 on this subject, may be considered, so far 
 as my native state is concerned, as a hum- 
 ble monument to the memory of departed 
 learning." 4 Kent, 267, 10th ed. ; 233, 
 12th ed. 
 S17a. BURKS v. BOSSO (1905), 180 N. 
 
 T. 341, 13 N. B. 58, 105 Am. St. 762. 
 Burks stated: A negro sued Bosso, a boot- 
 black for a statutory penalty under a civil 
 rights statute entitled : 
 
 "An act to protect all citizens in their 
 civil and legal rights," and thereunder 
 declaring, "Sec. 1. That all persons with- 
 in the jurisdiction of this state shall he 
 entitled to the full and equal accommoda- 
 tions, advantages, facilities and privileges 
 of inns, restaurants, hotels, eating houses, 
 bath houses, barber shops, theaters, music 
 halls, public conveyances on land and 
 • water, and all other places of public ac- 
 commodations or amusement, subject only 
 to the conditions and limitations estab- 
 lished by law and applicable alike to all 
 citizens. 
 
 Leading Cases. — 217a. Burks. 
 
 "Sec. 2. That any person who shall 
 violate any of the provisions of the fore- 
 going section, by denying to any citizens, 
 except for reasons applicable to all citi- 
 zens of every race, creed or color, and re- 
 gardless of race, creed and color, the full 
 enjoyment of any of the accommodations, 
 advantages, facilities or privileges in said 
 section enumerated, or by aiding or in- 
 citing such denial, shall for every such 
 offense forfeit and pay a sum not less 
 than $100, nor more than $500 to the 
 person aggrieved thereby to. be recovered 
 where said offense was committed ; and 
 shall, also, for every such offense be 
 deemed guilty of a misdemeanor." 
 
 Bosso refused to polish Burks' shoes be- 
 cause he was black. For this he was sued 
 and lost in the municipal court ; he ap- 
 pealed and won in the county court ; 
 Burks then appealed to the appellate 
 division where he re-secured a reversal of 
 the county court. Bosso then appealed 
 and finally won upon the ground that the 
 above statute did not include a bootblack. 
 The words "all other places of public 
 accommodations" did not include the busi- 
 ness of a bootblack. Ejusdem generis. 
 
 The negro is not a fortunate litigant in 
 pursuit of civil rights. U. S. v. Cruik- 
 shank; U. S. v. Hodges, 203 U. S. 1. 
 
 A statutory offense cannot be established 
 by implication. Burks v. Bosso ; P. v. 
 Phyfe (1893), 136 N. Y. 554, 32 N. E- 
 978, 19 L. R. A. 141 ; U. S. v. Wiltberger. 
 Penal-criminal statutes are strictly con- 
 strued. U. S. v. Wiltberger. 
 
 A general phrase preceded by a specific- 
 enumeration is limited and qualified by 
 the latter. Verba generalia t etc. ; Noscitur- 
 a sociis; Ejusdem generis; P. v. Richards 
 (1888), 108 N. Y. 137, 2 Am. St. 373; 
 P. v. R. R. (1881), 84 N. Y. 565 ; Sims v. 
 Trust Co. (1886), 103 N. Y. 472; Her- 
 mance, In re (1877), 71 N. Y. 481; Man- 
 gam v. Brooklyn (1885), 98 N. Y. 585, 
 50 Am. Rep. 705. 
 
 General words enumerating matters of 
 common law enumeration, followed by an 
 enumeration of matters not of common 
 law regulation, will not include matters of 
 the latter class not enumerated. Ex- 
 pressio unius; Verba intentione; Burks. 
 
 Statutes in derogation of the common laur 
 are strictly construed. Burks v. Bosso ; 
 Lonstorf ; C. v. Hess ; Robinson v. R. R. 
 
 Remedial statutes are liberally construed is- 
 a rule that should be considered with the 
 foregoing. 
 
 Verba fortius is a great rule of construc- 
 tion, from the Roman Norman-English, 
 and good federal and state cases. 
 
 218. HARPER V. CITY INSURANCE 
 CO. (1858), 17 N. Y. 194. Bennett, Fire 
 Ins. Cas. 247, 1 Bosw. 520, 22 N. Y. 441, 
 Laws. Us. & Cust. 148, 1 Chit. Conts. 119, 
 120 : cases, 24 Am. Rep. 150 ; Yoch, 111 
 Cal. 503, 34 L. R. A. 857 (S. P. Harper) ; 
 Phoenix Ins. Co., 24 Ind. Ap. 87, 79 Am. 
 St. 257, n. ; cited, §§ 20, 180, 233, 234, 
 254, 256, 288, 289, 294, Hughes' Proc. 
 
 Harper stated: Custom and usage. A pol- 
 icy forbade the use of inflammables, i. e., 
 
108 
 
 DATUM POSTS. 
 
 Leading Cases. — 218. Harper. 
 
 camphene. But usage is admissible to 
 show that the condition was not intended 
 to prevent the necessary use of that arti- 
 cle used in printing. Whatever is con- 
 templated is construed into it. 
 
 Robinson : 309 ; St. Louis Beef Co. ; 
 Iglehart, 204 U. S. 478 ; Fraim, 170 Pa. 
 151, 50 Am. St. 753 (gasoline forbidden 
 in strongest language, yet a recovery was 
 allowed). Contemporanea exposito, etc. ; 
 Ad ea quos frequentius; Benedicta; Ans. 
 Conts. 144, 306. See Intent. Use of 
 gasoline: 91 Minn. 382, 103 Am. St. 512n. 
 
 The expressed words of a contract control. 
 Wigglesworth : 399 ; Heron, 180 Pa. 257, 
 36 L. R. A. 517 (a more strict rule fol- 
 lowed) ; Barnard : 108. 
 
 Harper denied. German Fire Ins. Co., 54 
 Kan. 732, 45 Am. St. 306, n. ; Church, 158 
 Mass. 475, 35 Am. St. 508, 19 L. R. A. 
 587-490, n. 
 
 Verba intentione, etc. Kemble : 391 ; Coin- 
 munis error facit jus; Modus et conventio; 
 1 Chit. Conts. 104; Howard v. Harris. 
 
 Cessation of tenancy caused by a change 
 of tenants is no violation of a stipulation 
 against vacating the premises. Liverpool 
 Fire Ins., 38 Neb. 146, 41 Am. St. 724, n. 
 "Vacant and unoccupied" : meaning of 
 these words in policy. Moore, 54 N. H. 
 140, 10 Am. St. 384-397, ext. n. 
 
 JSuicide while insane will not forfeit policy 
 stipulating against self-destruction. Sub, 
 Volenti, etc. See Billings (.Contra: cases.) 
 Death due to "the inhalation of gas," 
 means voluntary inhalation. Pickett, 144 
 Pa. 79, 5 Am. R. R. & Corp. Rep. 143, n. 
 What are self-inflicted injuries. Fidelity, 
 etc., Co., 93 Va. 138, 40 L. R. A. 342- 
 452, ext. n. 
 
 Accident insurance. Death by disease is no 
 ground for recovery. A malignant pustule 
 caused by exposure of a wound to disease 
 is death from disease. Bacon, 123 N. Y. 
 304, 3 Am. R. R. & Corp. Rep. 352. 
 
 Indorsing a note "without recourse" never- 
 theless warrants that it is genuine and 
 unpaid. A thing in esse is warranted. § 
 134, Hughes' Conts. ; Expressio eorum, 
 etc. ; Caveat emptor. 
 
 Paralysis caused by a pistol shot and result- 
 ing in non-use of feet is entire loss of two 
 feet in meaning of policy. Sheanon, 77 
 Wis. 618, 9 L. R. A. 685, 3 Am. R. R. 
 & Corp. Rep. 426-428 (construction favors 
 indemnity) ; Ut res magis, etc. McGlin- 
 chey, 80 Me. 251, 6 Am. St. 190 (assured 
 favored by construction). 
 
 Construction. Ut res magis, etc. ; Ad ea 
 quoz frequentius, etc. ; Verba intentione, 
 etc. Crooker v. Holmes (negotiable in- 
 strument) ; 1 Chit. Conts. 119-120 : cases. 
 
 A policy concluded "nullus exceptis" 
 {without any exception), the assured was 
 to be paid. The goods were damaged by 
 the act of the assured himself. Now, from 
 the reason of the thing, exceptions were 
 grafted in that policy, and even against 
 broad and sweeping language. Bro. Max. 
 
 Leading Cases. — 218. Harper. 
 
 696 ; Nulla pactione, etc. ; Pacta, etc. ; 
 Nullus commodum capere, etc. 
 
 Intention of parties controls. Hallett, 1 Tay. 
 Land. & Ten. 38 ; Gotthelf, 138 N. Y. 345, 
 20 L. R. A. 455, n. ; Lovelace, 126 Mo. 
 104, 47 Am. St. 638, 30 L. R. A. 209, 
 S. v. Chau/et (1900), 111 la. 687, 83 N. 
 W. 717, 82 Am. St. 539, 51 L. R. A. 630 
 (a covered wagon moved from place to 
 place, in which prostitution is carried on, 
 is a bawdy-house in the meaning of a 
 statute prohibiting such). Quando verba 
 statuti; Quando verba, etc.; Verba nihil 
 operari, etc. ; Verba offendi, etc. Words, 
 how construed. See Verba, etc. ; Iglehart, 
 204 U. S. 478. 
 
 219. MURRAY'S LESSEE (or MUR- 
 RAY) v. Hoboken Land and Impeove- 
 ment Co. (1855), 18 How. 272, Curt. Abr. 
 227-240 (15 L. ed. 372), Thayer, Const. 
 Cas. 600, Myer, Vested Rights, 250, Mc- 
 Clain, Const. Cas. 895, 106 Wis. 437, 80 
 Am. St. 41, 1 Tex. Ct. App. 619 ; Cool. 
 Const. Lim. ; 2 Cool. Tax. 1341 ; 2 Dill. 
 Corp. 754, 2 Tucker, Const. 390 ; Suth. 
 Stat. 5, 142 (quoting definition), 201 U. 
 S. 254 ; Ballard v. Hunter, 204 U. S. 241 
 (due process of law has never been de- 
 fined). 
 
 Cited, pp. 11, 17 ; §§ 5, 5a, 6, 8, 19, 28, 52, 
 78, 121, Hughes' Proc. 
 
 Cited, U 93, 108, 119, 152, 159, 214, 263, 
 268, Gr. & Rud. 
 
 "Due process of law" discussed and defined. 
 The guarantee of* in the 5th Amendment 
 to Constitution of the United States, con- 
 strued as in Magna Charta and under the 
 English Common Law. It is not local 
 or provincial law. It means the same 
 thing as the "law of the land," or the due 
 administration of the laws. It is derived 
 from Magna Charta. By construction, the 
 laws of England are adopted and are made 
 the same. And so American law is pat- 
 terned after the English as a model. S. 
 v. Moore, 222a. 
 
 "Due Process of Law" generally implies 
 and includes actor (plaintiff), reus (de- 
 fendant), judex (judge), regular allega- 
 tions (Rushton), opportunity to answer 
 (Windsor), and a trial according to some 
 settled course of judicial proceeding. 18 
 How. 280, 2 Inst. 47, 50 ; Taylor ; Hoke 
 v. Henderson (1833), 2 Dev. Law (N. C), 
 1, 25 Am. Dec. 676-705, n. ; Great Opin. 
 Great Judges ; Suth. Stat. 5 ; Cool. Const. 
 Lim. 432 ; Kent, g. v. ; 1 Beach, Pub. 
 Corp. 173, 188 ; Hurtado ; Cruikshank ; 
 Carr, 20 R. I. 215, 78 Am. St. 855 : cases : 
 Definition ; Huntsman, quoting the above ; 
 Rosen ; Howard v. Fleming (states may 
 invade). 
 
 What records must show. Harvey: 123; 
 Piper : 114 ; Windsor ; Munday ; Stubbings 
 (placitum) ; Nixon: 127. 
 
 Allegations are indispensable for "due proc- 
 ess of law." Cruikshank : 232 ; Munday : 
 79 ; Frustra probatur, etc. ; Shutte : 291. 
 J'Anson : 91. 
 
 The judiciary must inquire into the consti- 
 tutionality of a statute; all judges are 
 
DATUM POSTS. 
 
 109 
 
 Leading Cases. — 219. Murray's. 
 
 charged with this duty, from the greatest 
 to the least. Hoke, supra J Marbury. See 
 Supreme Law of the Land. 
 Limitations of legislative interference with 
 procedure. Huntsman : 231 ; S. v. Beach : 
 258; Bates: 225; Dovaston : 217. 
 
 A valid warrant or execution may issue 
 upon the record made by a solicitor of the 
 treasury of the United States against a de- 
 faulting revenue officer, under a statute 
 authorizing it. The amount found to be 
 due in the treasury records will support 
 the warrant in behalf of the government, 
 and such a record and warrant will sup- 
 port a sale of land founded thereon. Mur- 
 ray. See Taxation ; Public Clearing 
 House, 194 U. S. 497 (need not involve 
 judicial process). 
 
 Auditing and stating such an account 
 -has the force and effect of an adjudica- 
 tion and will support the warrant, which 
 need not issue from the judicial depart- 
 ment. Such procedure does not violate 
 the division of state power. See Division 
 oe State Power. 
 
 The return of the marshal, that he had 
 levied on lands, on such a warrant, is 
 prima facie evidence that there was no 
 personal property on which he could levy. 
 See Crepps : 113 ; Walker : 118 ; Harvey : 
 123 ; Hannah : 128 ; Returns ; Omnia 
 prwsumuntur rite, etc. 
 
 Certificates of doubt will remove a 
 cause in federal procedure as by appeal 
 or error. See Id. ; Waco : 300. 
 Constitutions deal in general language (P. 
 276). They do not include codes and de- 
 tails. M'Culloch : 147 ; Cohens : 244. 
 .Words and phrases used in a constitution 
 are given a common-law meaning if pos- 
 sible. Work v. S. : 242 ; S. v. Baugh- 
 man: 268; C. v. Hess: 215; S. v. Town- 
 ley : 225a/ Montgomery Co. : 47. 
 A record evincing, all essential accompani- 
 ments of an adjudication is implied. 
 Freem. Judg. 37, 76 ; Montgomery ; Ivers- 
 lie: 46. 
 Due process of law involves all the elements 
 of jurisdiction. Generally this is denned 
 to include jurisdiction of the person, of 
 the subject-matter and place. Turney. 
 But there are many other elements. See 
 Jurisdiction ; Munday ; Harvey ; Nixon ; 
 ■ Walker ; Piper ; Milligan's Case ; R. v. 
 Keyn ; C. v. Macloon ; Mostyn ; S. V. 
 Baughman : cases ; Collateral Attack ; 
 Audi alteram partem; Due Process op 
 Law. 
 Omnia prmsumuntur rite, etc., is a rule 
 that profoundly disturbs jurisdiction. It 
 is quite well settled in England, and in 
 Massachusetts and some other states. 
 Crepps ; Piper. In some states relating 
 to it judicial anarchy prevails. See Har- 
 vey : 123. A definition of due process of 
 law for those familiar with fundamental 
 law can not prove difficult. But it is to 
 be borne in mind that widely differing 
 intellects are discussing the subject and 
 
 Leading Cases. — 219. Murray's. 
 
 manifestly many who have no conception 
 of the prescriptive constitution and its 
 organic requirements. See observations 
 under Windsor: 1; Rushton : 5; J 'Anson : 
 91 ; Lange : 159 ; Dovaston : 217. 
 
 Due process of law kas always been a 
 requirement of organic law in a constitu- 
 tionalism. A government of limited and 
 denned powers can not be operated for 
 the public tranquillity, for the general 
 welfare — upon shams, frauds, mockeries 
 and violence. These are inimical to due 
 process of law, as well as the exercise of 
 all whims, caprice, affections or antipa- 
 thies of governors or magistrates. The 
 exercise of arbitrary power in all its 
 forms is opposed to due process of law ; 
 and it matters not whether the offence 
 is from executives or legislatures or the 
 judiciary. 
 
 Juridical due process of law is the exer- 
 cise of judicial power for the establish- 
 ment of any of its varied ends and pur- 
 poses conformably to fundamental require- 
 ments and evincing all of the essential 
 proceedings by the right record. Planing 
 Mill Co. v. Chicago : 2d. (Right record 
 essential). 
 
 In a generai sense it may be said that 
 only the coram judice proceeding can 
 satisfy the requirements of due process 
 of law. The discussions in Windsor and 
 Cruikshank suggest many elements of due 
 process of law, which must be denned 
 from an understanding of the conserving 
 principes of procedure, of the maxims and 
 cases which support those principles. 
 
 Any generalized statement from a com- 
 prehension of the prescriptive constitu- 
 tion, its maxims and conserving princi- 
 ples will be a good definition of due 
 process of law. Its definition must spring 
 from the fundamental maxims of govern- 
 ment ; it must be conceived from eternal 
 laws, from the law of all ages and climes, 
 and be a definition for all ages and for 
 all climes. 
 
 219a. TAYLOR v. FOBTEB (1843), 
 4 Hill, 140, 40 Am. Dec. 274 ; Cool. Const. 
 Lim. ; Suth. Stat. 5 ; Tiede. Pol. Power ; 
 McQuillan's Munic. Ord. 495 ; 78 Am. St. 
 858; Wynehamer v. P. (1856), 13 N. Y. 
 378-488 ; Carr, 20 R. I. 215, 78 Am. St. 
 855: cases; Hughes' Conts. 
 
 Cited, §§ 28, 45, 76, Hughes' Proc. 
 
 Cited, §§ 116, 140, 268, 296, Gr. & Rud. 
 
 Law of the land — Due process of law de- 
 fined. "You shall not do wrong unless 
 you .choose to," is not the meaning of a 
 constitution for any class or grade of 
 officials. Usurpation is a grave offense 
 and must be avoided. 
 
 4 Hill, 145, 40 Am. Dec. 274, Cool. 
 Const. 432, 6th ed., 78 Am. St. 859. 
 Paramount law, and all officials must act 
 within it. Lange : 159 ; Windsor : 1 ; 
 Coster, 18 N. J. Eq. 54-72, 90 Am. Dec. 
 634 (limitation of power to take prop- 
 erty) ; Allen v. Jay ; Talbot, 16 Gray, 
 417 ; Cool. Const. Lim. ; Wurts, 114 U. 
 
110 
 
 DATUM POSTS. 
 
 Leading Cases. — 219a. Taylor. 
 
 S. 606 ; Dayton Min. Co., 11 Nev. 394. 
 See Millett ; Due Process of Law ; Taxa- 
 tion ; Tiede. Pol. Power ; Story v. El. 
 R. R. 
 
 The fundamental maxims of a free gov- 
 ernment seem to require that the rights of 
 personal liberty and private property 
 should be held sacred. Wilkinson v. Ice- 
 land, 2 Pet. 627 (Story, J.) ; McQuillan's 
 Munic. ord. 495. Dash, 237a. 
 
 Limitations of legislative power to regulate 
 contracts. Cannot regulate the hours of 
 labor. Cleveland, 67 Ohio, 197, 93 Am. 
 St. 670 (quoting Taylor); Millett; P. v. 
 Marcus, 185 N. Y. 257, 113 Am. St. 902. 
 The right to contract is -within the 
 prescriptive constitution, with which 
 written constitutions must accord. The 
 assent to, and the consideration for a con- 
 tract must be respected in every govern- 
 ment of denned powers which protects 
 property from confiscation by insidious 
 construction which is but another name 
 for usurpation. The modern and Amer- 
 ican law may vary formal matters of 
 contract, like the evidence of contract, 
 also illegality of contract, but the Roman 
 Norman-English law of assent and con- 
 sideration can not be changed. 
 
 The law is above government and its 
 agencies. Hughes' Proc, § 204. The 
 maxims of the law ever attend and ex- 
 pand or contract the words of constitu- 
 tions. Lex non exacte, etc. There are 
 limitations on government to create crime. 
 P. v. Turner : 252 ; S. v. Brown, Wash., 
 107 Am. St. 798, n. ; also over property. 
 Muhler v. Harlem R. R., 199 U. S. 544 ; 
 Story v. El. R. R. ; S. v. Kelly ; Hanson 
 v. Kreibiel ; 201 U. S. 245. 
 
 Constitutions are the supreme laws of the 
 land. Taylor ; Cochran, 20 Wend. 365 ; 
 Blair : 254 ; P. v. Turner : 252 ; Oakley ; 
 Rison ; In prozsentia majoris, etc. See 
 Christianity. S. v. Kelly ; Virginia 
 Coupon Cases, 285a; Berger, 193 Mo. 90, 
 112 Am. St. 472 ; See S. v. Sheppard 
 (Mo.). 
 
 A statute cannot authorize administration 
 proceedings upon a living man's estate, 
 because he is absent and unheard of. 
 Carr, supra; Selelen's, 104 Va. 826, 113 
 Am. St. 1076-1080. A wronged party is 
 essential for "due process of law." When 
 that fact does not exist it cannot be ficti- 
 tiously declared. Statutes cannot create 
 it. Springer : 24 ; S. v. Baughman : 268. 
 Fabula. 
 
 The essentials of "due process of law" is an 
 irreducible minimum, and these cannot be 
 abolished by statutes nor destroyed by con- 
 stitutional courts. One of those essen- 
 tials is a party who has committed a 
 wrong ; this is essential to invest a court 
 with jurisdiction. The rights of no living 
 person, who is free of wrong or deliction, 
 can be lawfully disturbed. Springer ; 
 Carr. Essentials of "due process of law" 
 are within constitutional protection. Es- 
 
 Leading Cases. — 219a. Taylor. 
 
 sential parts of that guaranty must be 
 protected for the integrity of the whole. 
 "The power which is entirely and exclusive- 
 ly vested in the judiciary department is- 
 the power conferred on judicial courts and. 
 tribunals to administer punitive and reme- 
 dial justice to and between persons sub- 
 ject to or claiming rights under the law 
 of the land. The exercise of this power 
 includes invariably actor, reus and judex, 
 regular allegations, opportunity to answer, 
 and a trial according to some settled 
 course of judicial proceedings. It is part 
 of this judicial power to determine what 
 this law is ; and all questions ' involving 
 the validity and effect of statutes when 
 thus determined are authoritatively set- 
 tled." 
 
 Suth. Stat. 5 : cases. See Stare decisis; 
 Ita lex sci'ipta est; Lex est misera, etc. ; 
 Nihil in lege intolerabilius, etc. ; S. v. 
 Baughman : 268. 
 
 This power is reckoned from the con- 
 serving principles of procedure. §§ 83- 
 123, Gr. & Rud. It is derived from the 
 maxims. J'Anson : 91 ; Dovaston : 217 ; 
 Oakley: 222. 
 
 220. HUETADO V. CALIFORNIA 
 (1884), 110 U. S. 516 (28 L. ed. 232) ; 
 Boyd, Const. Cas. 534, 1 Thayer, Const. 
 Cas. 616, McClain Const. Cas. 905, And. 
 Am. Law, 1027, 2 Tucker, Const. 390, 201 
 U. S. : 254. 
 
 Cited, p. 11 ; §§ 13, 19, 35, 61, 161, Hughes' 
 Proc. 
 
 Cited, §§ 93, 152, 157, 159, 214, Gr. & Rud- 
 
 One may be prosecuted under an informa- 
 tion, if permitted by a constitution, instead 
 of by indictment. Such information satis- 
 fies the demands of "due process of law." 
 There must be either an indictment or in- 
 formation. Hurtado v. California ; R. v. 
 Wheatley ; Moore v. C. There must be a 
 presentment, and it must charge a crime. 
 Regular allegations essential. Murray v. 
 Hoboken ; U. S. v. Cruikshank. 
 
 "Due process of law" means certain funda- 
 mental rights which that system of juris- 
 prudence of which ours is a derivative has 
 always recognized. Windsor. Any pro- 
 ceeding permissive of these is sufficient. 
 Hurtado. The form and garb may be 
 changed, but the substance must be the 
 same. Davis, 179 U. S. 399 ; Louisville 
 R. R., 177 U. S. 230 : cases ; Maxwell, 176 
 U. S. 581: cases; Winona, 159 U. S. 526 
 (either of two assessments are good if 
 only an opportunity to be heard is af- 
 forded). See Cool. Tax., 3d ed. ; Welty, 
 Assess. 250-253; Nil facit error nominis, 
 etc.; Names; Scientia sciolorum, etc.; 
 Scire leges, etc. ; Scire proprie est, rem 
 ratione, etc. ; Prwsentia corporis. 
 
 221. WrLKTRSON v. UTAH (1878), 
 99 U. S. 130 (25 L. ed. 345) ; stated. 
 Laws. Lead. Cas. Const. Law Simp. 293 ; 
 cited, 1 Bish. C. L. 946, 1 McClain, Const. 
 Law, 80: cases (cruel and unusual pun- 
 ishments). Cited, § 19, Hughes' Proc. 
 
 Constitutional laic; "cruel and unusual pun- 
 ishments." Shooting is not a cruel and 
 unusual punishment. Wilkerson ; Magna 
 Charta; 2 Kent, 13; stated, Garvey, 48- 
 La. Ann. 527, 35 L. R. A. 561-580, ext. 
 
DATUM POSTS. 
 
 Ill 
 
 Leading Oases. — 221. Wilkerson. 
 
 n. ; Kemrnler, 136 U. S. 436, 446 ; Kemm- 
 ler, 119 N. Y. 569, 16 Am. St. 859, n. 
 construction of all documents. O'Connell : 
 L. R. A. 561 (accused may be electro- 
 cuted) ; C. v. Murphy, 166 Mass. 66, 30 
 L. R. A. 734, n. ; Hobbs, 133 Ind.. 404, 
 18 L. R. A. 774, n. ; Birdsong, 39 Fed. 
 599, 4 L. R. A. 628, u. Enhancing 
 penalty of crimes when committed by 
 habitual criminals or prior offenders. Mil- 
 ler, 110 Mich. 676, 34 L. R. A. 398- 
 408. 
 822. OAKLEY V. ASFIHWALL (1850), 
 3 N. Y. 547 ; End. Stat. 348, 428, 430 ; 
 Hughes' Conts. Cited, pp. 32, 33 ; §§ 5- 
 56, 7, 9, 11, 20, 21, 28, 40, 51, 52, 67, 
 76, 158a, 160, 166, 167, 178, 203, 204, 
 206, 236, 276, 278, Hughes' Proc. 
 Cited, §§ 5, 46, 80, 106, 111-119, 120, 122, 
 134, 137, 139, 163, 262, 263, 266, Gr. & 
 Rud. 
 Fundamental principles annex themselves in 
 construction of all documents. O'Connell : 
 223 ; Dash : 237a; C. v. Hess. : 215 ; Bro. 
 Max. 19 ; 1 Bl. Com. 42. And, therefore, 
 a constitution creating a court, to con- 
 sist of eight judges, nevertheless yields to 
 the rule, Nemo debet esse judex in- pro- 
 pria causa. See Audi; Expressio eorum, 
 etc. P. v. Turner : 252 ; Rison ; S. v. 
 Bolden: 216. 
 Courts by implication may defensibly annex 
 principles of natural and fundamental 
 right, because this is for the public wel- 
 fare. See Preamble of Const. U. S. ; 
 O'Connell ; P. v. Turner : 252 ; C. v. Hess ; 
 Trist : 214 ; Concordare leges legibus, etc. 
 §§ 351, 352, Hughes' Proc. 
 Consent cannot confer jurisdiction upon an 
 
 interested judge. Dimes : 176. 
 Statutes are construed subject to natural 
 rights and fundamental equity. S. v. 
 Bolden ; Lex non exacte, etc. ; Day v. 
 Savadge (1620), Hobart, 85; Church v. 
 U. S. ; S. v. Sheppard ; Kollock (Code) ; 
 State v. Fox, 158 Ind. 126, 132;' Rath- 
 bone, 150 N. Y. 359, 34 L. R. A. 408 
 (there is an unwritten constitution) ; P. 
 v. Town of Salem. See 101 Am. St. 971, 
 27 Utah, 387. Lex non exacte, etc. S. 
 v. Braxton (1906), — W. Va. — , 55 S. 
 E. 382; Wright v. Hart (1905), — N. Y. 
 — , 75 N. E. 404. 
 
 Constitutipns sometimes place limita- 
 tions on the indebtedness of governmental 
 agencies, such as counties, etc. But for 
 necessary expenses of county organiza- 
 tions and for protection that indebtedness 
 may be exceeded. Consequently, neces- 
 sity appears as the higher law. Beard v. 
 Hopkinsville : cases ; Harper : 218. 
 222a. S. v. MOORE (1853), 26 N. H. 
 448, 59 Am. Dec. 354-359, n. Cited, §§ 
 37, 276, Hughes' Proc. ; § 139, Gr. & Rud. 
 English Common law adopted in American 
 states. S. v. Moore ; S. v. Calhoun, 50 
 Kan. 525, 34 Am. St. 141, n. ; Sedgk. 
 Stat. 4, 13 ; 1 Kent, 473 ; 21 Am. Law 
 Reg. (N. SO 253-274 ; McKennon, 1 Ok. 
 327, 23 L. R. A. 501-512, ext. n. ; Chil- 
 cott, 23 Colo. 40, 34 L. R. A. 41, n. ; 
 
 Leading Cases. — 222a. Moore. 
 
 Cool. Const. Lim. 32-35 ; S. v. Foster, 5 
 Wyo. 199, 63 Am. St. 47, n., 29 L. R. A. 
 226. Limitations of extent. Katz Case, 
 sub, Water. 
 Adoption of a statute from another state 
 brings with it the construction there given 
 it. James v. Appel (1904), 192 U. S. 
 129, 135: cases; Tuckers v. Oxley (1809), 
 5 Cranch, 42. 
 Borrowed statutes are given their home con- 
 struction. S. v. Moore ; Laporte, 146 Ind. 
 466, 58 Am. St. 359, n. (same rule as to 
 a constitution) ; Suth. Stat. 191 ; cases, 
 End. Stat. 368 ; Wells, Res. Adj. 490 ; 1 
 Wh. Ev. 311 ;"l Bish. Stat. Crim. 397: 
 cases ; Sedgk. Stat. 362 : cases ; Cool. 
 Const. Lim. 66, u., 6th ed. ; American 
 Print Works ; Rouse ; Watson, 52 N. J. 
 Law, 350, 10 L. R. A. 784 (acceptance is 
 peremptory) ; Brown v. Walker (1899), 
 161 U. S. 591. 
 In adopting a foreign statute, its construc- 
 tion follows it. 192 U. S. 133 : cases ; 
 Ubi eadem ratio, etc. Cf. 31 Colo. 82. 
 All laws are interpreted in the light of the 
 old law — the common law. C. v. Hess : 
 215 ; Murray : 219. Concordare leges 
 legibus, etc. 
 223. INDIANAPOLIS & ST. LOUIS B. 
 R. v. HORST (1876), 93 U. S. 291, 149 U. 
 S. 207 ; 190 U. S. 215 ; Fost. Fed. Prac- 
 tice. 
 Cited, pp. 32, 33 ; §§ 5, 7, 10, 23, 28, 31, 37, 
 40, 41, 43, 52, 82, 152, 206, 236, 239, 292, 
 352, Hughes' Proc. ; §§ 33, 80, 114, 119, 
 134, 135, 137, 140, 147, 151, 156, 240, 
 262, 263, 268, 297, Gr. & Rud. 
 Federal courts follow the law of the state 
 in which they are sitting. This rule is 
 binding in all matters of substance, such 
 as that there shall be a statement of the 
 claim or defense, and subsequent pro- 
 ceedings to raise the issues of law or fact 
 in the case. 
 "Such law is undoubtedly obligatory upon 
 the courts of the United States in that lo- 
 cality. There may be other things, not 
 necessary now to be specified, with respect 
 to which it is also binding." (93 U. S. 
 300.) "But where it prescribes the manner 
 in which the judge shall discharge his 
 duty in charging the jury, or the papers 
 which he shall permit to go to them in 
 their retirement, as in Nudd v. Burrows, 
 or that he shall require the jury to an- 
 swer special interrogations in answer to»»» 
 their general verdict, as in this case, we 
 hold that such provisions are not within 
 the intent and meaning of the act of con- 
 gress, and have no application to the 
 courts of the United States. These are 
 all matters relating merely to the mode of 
 submitting the case to the jury. The con- 
 formity is required to be 'as near as may 
 be' — not as near as may be possible, or 
 as near as may be practicable. This in- 
 definiteness may have been suggested by a 
 purpose ; it devolved upon the judges, to 
 be affected, the duty of construing and 
 deciding, and gave them the power to re- 
 ject, as congress doubtless expected they 
 would do, any subordinate provision of 
 such state statute which, in their judg- 
 ment, would unwisely encumber the ad- 
 ministration of the law, or tend to defeat 
 
112 
 
 DATUM POSTS. 
 
 Leading Cases.— 223. Ind. & St. L. 
 
 the ends of justice, in their tribunals." 
 See Shepard, sub, O'Connell. 
 
 "While the act of congress is to a large ex- 
 tent ' mandatory, it is also to some extent 
 only directory and advisory. The consti- 
 tution of Indiana, Art. 7, § 5, requires 
 that 'the supreme court shall upon the de- 
 cision of every case, give a statement of 
 each question arising in the record of 
 such case, and the decision of the court 
 thereon.' This was held to be directory 
 and not mandatory. Willetts v. Ridgway, 
 9 Ind. 367. 
 
 "The criminal code of practice of Arkansas 
 provided that the court should admonish 
 the jury that it was thejr duty not to al-, 
 low any one to speak to them upon any 
 subject connected with the trial until the 
 case was finally submitted to them. It 
 was held this provision was only directory 
 and cautionary, and that the omission to 
 comply with it was not error, and did not 
 affect the validity of the verdict." 
 
 Thompson v. S., 26 Ark. 326. See also 
 Wood, 4 Lans. 86 ; S. v. Carney, 20 la. 
 82 ; Bowers, 32 Cal. 66 ; Hill, 40 Miss. 
 618; 93 U. S. 301. 
 
 There shall be a statement of claim, is a 
 requirement of codes that is mandatory; 
 and not upon federal courts alone, but 
 upon state courts as well. Windsor : 1 ; 
 Campbell : 2 ; Munday : 79 ; Borkenhagen : 
 81 ; Kollock ; Wisconsin Co. v. Bullard. 
 Essentials for a defense, for raising is- 
 sues, are also described, and these are 
 also mandatory. Munday. 
 
 Statutory power to interfere with pro- 
 cedure has limitations, and codes should 
 be accordingly construed. 
 
 General exceptions insufficient. Har- 
 vey : 123 ; Hickory : 194 ; Miller v. Dill : 
 2906-299. 
 
 The Missouri statute of jeofails and 
 amendments (R. S. 1899, § 672), is of the 
 widest and most general character. It 
 prescribes Aider by Waiver, by verdict 
 and by judgment, not only of formal, hut 
 of substantial defects. Three of the many 
 clauses which attempt to cure defects in 
 pleadings, are as follows : "Fifth, for any 
 mispleading, miscontinuance or discontinu- 
 ance, insufficient pleading, jeofails or mis- 
 joining issue ; * * * eighth, for the 
 want of any allegation or averment on 
 account of which omission a demurrer 
 could have been maintained ; ninth, for 
 omitting any allegation or averment with- 
 out proving which, the triers of the issue 
 ought not to have given such a verdict." 
 The statute thus attempts to cure not only 
 defects in form, but defects in substance. 
 Notwithstanding this, the Supreme Court of 
 Missouri has, in many cases, disregarded 
 the statute and held that the legislature 
 cannot cure substantial defects relating to 
 the mandatory record. Mallinckrodt : 
 cases ; Dobson : cases ; 96 Mo. Ap. 556 ; 
 69 Mo. 281; Pennowfski, — Mo. — , 103 
 S. W. 542 ; S. P. Planing Mill Co. v. 
 Chicago : 2d. 
 
 General language Is restrained by the 
 nature of the subject matter and the prin- 
 
 Leading Cases.— 223. Ind. & St. L. 
 
 ciples of the common law. End. Stat. 
 182 ; C. v. Hess : 215. 
 
 There are many decisions in Missouri 
 which practically nullify the words of 
 the above statute, and further, the con- 
 stitution itself is nullified when it con- 
 travenes moral laws. S. ex rel. Henson 
 v. Sheppard. Concordare leges legibus est 
 optimus interpretandi modus. 
 
 224. O'CONNELL v. BEES (1893), 56 
 Fed. 531, 5 C. C. A. 586-608, n., 12 U. S. 
 App. 369 : cases. 
 
 Cited, p. 33 ; §§ 1, 7, 9, 10, 13, 17, 19, 20. 
 21, 23, 28, 37, 40, 42, 43, 52, 61, 82, 102, 
 126, 145, 152, 161, 169, 199, 206, 236, 
 239, 275, 292, 350, Hughes' Proc. 
 
 Cited, §§ 119, 262, Gr. & Rud. 
 
 Legislative limitations, construction. State 
 laws that "unwisely incumber the due ad- 
 ministration of the law, or tend to defeat 
 the ends of justice in their tribunals," will 
 not be enforced or respected in United 
 States Courts. Indianapolis : 222 (man- 
 datory and directory statutes) ; Associa- 
 tion, 131 U. S. 109, 120, 9 S. C. Rep. 755 
 (state statute requiring a special verdict 
 may be disregarded) ; Erstein, 22 Fed. 61, 
 64 (amendment of writs allowed of at- 
 tachment affidavit when denied by the 
 state courts). Statute changing time of 
 service of summons need not be followed. 
 Shepard v. Adams (1898), 168 U. S. 
 618 ; Southern P. R. R., 146 U. S. 202, 
 13 S. C. Rep. 44; R. R. v. Pinckney 
 (1893), 149 U. S. 194 (state statute can- 
 not make a special appearance a general 
 one). 
 
 Construction of statutes should be reason- 
 able, uniform and of general operation. 
 End. Stat. 182, Suth. Stat. Construe. 288 ; 
 Cessante ratione legis, etc. ; Verba nihil, 
 etc. ; Bates : 225. Concordare leges legibus, 
 etc. 
 
 A statute provided that where there was a 
 failure of consideration, this might be 
 pleaded. Under this statute a defendant 
 pleaded the language of the statute, i. e., 
 "that there was a failure of considera- 
 tion," this being a mere conclusion of law. 
 The court properly held such a plea in- 
 sufficient, for the reason that facts, not 
 conclusions must be pleaded. Be non ap- 
 parentibus, etc. Taylor - v. Sprinkle 
 (1819), Breese (111.), 1; Cornelius, Id., 
 23 ; Poole, Id., 47 ; Bradshaw, Id., 133 ; 
 Sims, Id., 302 (best statement). The 
 principle in Rushton was involved in 
 these cases. A statute can dispense with 
 a plea ; so held in Brazzle, Breese, 35. 
 See Israel : 83. 
 
 .4. judgment record book is essential in the 
 due administration of justice. 1 Freem. 
 Judge 37, 75. See Judgments. 
 
 Legislatures cannot abolish rules re- 
 quiring allegations of certainty. Hunts- 
 man : 231. McLaughlin v. S., 4 Ind. 338 ; 
 Moore v. C. ; Cool. Const. Lim. 327 ; P. 
 v. Turner : 252. See Supreme Laws ; 
 Literature. An existing defense cannot 
 
DATUM POSTS. 
 
 113 
 
 'Leading Cases. — 224. O'Connell. 
 
 be divested. Terry : 240. Nor a ground 
 of recovery. Dash : 337a. 
 Laws must be made to harmonize. Con- 
 cordare leges. Oakley : 222 ; P. v. Turner : 
 252. See Supkeme Laws. 
 225. BATES v. BUIKLEY (1S45), 2 
 Gilman (111.), 359. Cited, pp. 8, 9, 14, 
 15, 17, 32 ; §§ 7, 10, 12, 13, 17, 20, 23, 
 28, 43, 52, 122, 145, 203, 206, 236, 276, 
 352, Hughes' Proe. 
 Cited, §§ 84, 91, 102, 108, 122, 134, 183, 
 
 188, Gr. & Rud. 
 Bates stated: The provisions of a statute 
 were that there should be no "written 
 pleadings in a justice's court. Neverthe- 
 less the court held that the parties must 
 orally state the grounds of recovery and 
 of defense, and that the justice must note 
 these statements on his docket, for means 
 of showing res adjudicata. 
 The rationale of this view will appear from 
 ' the following observations: 
 
 For a strict construction of such a 
 statute there is some reinforcement in the 
 old rule that a justice's court is just what 
 the statute makes it, no more and no less. 
 Ita lex scripta est is often quoted to up- 
 hold such statutes. Many cases show that 
 great regard is given such appeals by 
 courts. 
 Lex non exacte definit, etc. But there are 
 other views, and among these are that 
 the judicial department is charged with 
 carrying forward the due administration 
 of the laws and of affording protection 
 according to due course of law — "due pro- 
 cess of law." Constitutions charge the 
 judiciary with great responsibilities, and 
 for the proper discharge of these "stat- 
 utes unwisely encumbering the due ad- 
 ministration of the laws and tending to 
 defeat the ends of justice" will be dis- 
 regarded. From these views, courts have 
 great inherent powers, above and inde- 
 pendent of legislatures. Coke, Hobart, 
 Holt, Mansfield, Marshall, Kent, Story, 
 Shaw and Field contended that something 
 was always left to the discretion of a 
 wise man. S. v. Bolden : 226. 
 
 Procedure has its conserving principles, 
 of which res adjudicata is one, as else- 
 where enumerated, for the extension of 
 that protection which courts are charged 
 with. For no other purposes are jus- 
 tices' courts and other inferior and statu- 
 tory tribunals created and maintained. 
 Records are a constitutional implication. 
 For the latter, records are provided, and 
 by implication this means much. The 
 common-law record is implied. 1 Free- 
 man, Judg. 37, 76. Whenever records 
 are provided, it means they shall be used, 
 and also that this rule shall be respected : 
 "What ought to be of record shall be 
 proved by record and by the right rec- 
 ord." Iverslie : 46. That those things 
 essential in the scheme of protection shall 
 be shown from the record. If the pre- 
 scription for the record does not mean 
 this, then it is tenable to say it would 
 
 8 
 
 Leading 1 Cases.— 225. Bates. 
 
 better be omitted altogether. None will 
 contend for such a radical and absurd 
 view as that, for vain and fruitless things 
 are not required. In rational procedure 
 these are always excluded as absurdities — 
 which are always excluded in sound con- 
 struction. Lex non cogit ad vana, etc. 
 For the scheme of government, what shall 
 this record show? Is it sufficient to en- 
 ter only one thing, say the name of a 
 plaintiff, or shall more appear? All will 
 admit the name of a defendant must ap- 
 pear. But there are other things equally 
 important ; for the court can not sit on 
 holidays or Sundays ; process must issue, 
 and it must be served by a proper officer 
 in the right time and territory and in a 
 certain way, unless there is an appearance 
 or notice is otherwise given, but anyway 
 this must appear ; court must convene at 
 the right time, and proceed to adjudicate 
 a particular controversy relating to a 
 subject-matter within the court's juris- 
 diction, and a certain judgment must be 
 entered and appear of record. See Piper, 
 114 : cases ; Ransom : 122 : cases. Nixon ; 
 Hannah: 128. 
 Every coram judice proceeding has certain 
 accompaniments which must appear of 
 record. Cases that stand for a relaxation 
 of old safeguards concede this. Harvey : 
 123. 
 
 Of these things above enumerated, can 
 any be dispensed with? This is the ques- 
 tion. Can any material fact be omitted 
 from a pleading ? Rushton ; McAllister ; 
 Hopper ; Pennoyer. 
 
 One of the most important things to 
 serve the high policies mentioned is, 
 what particular controversy — what "cause 
 of action" — was adjudicated. This is of 
 leading consequence for purposes of the 
 high policies of protection. Beaumont : 
 367. 
 
 The functions of pleadings in courts of 
 record are to describe and define — to iden- 
 tify — that subject-matter, gee Identifi- 
 cation. What crime, what deliction, 
 what wrong, must be made certain? No 
 one thing above enumerated to appear of 
 record is of greater consequence in the 
 due administration of the laws, than to 
 know what subject-matter was before the 
 court. It must be identified. Cruik- 
 shank ; Huntsman : 231. See Allega- 
 tions ; L. C. 1-26. 
 
 Now if a record is provided for the 
 court, surely it must attest the essen- 
 tial facts and matters constituting an 
 adjudication. Where pleadings are ex- 
 cluded, there only remains the record to 
 show what was passed upon, and for this 
 leading essential the court, in Bates, de- 
 cided that the parties must orally state 
 their claim of wrong or of defense, and 
 that these should' be made of record and 
 appear from the record. Any other view 
 would make the provision for the record 
 absurd and a vain and useless thing. 
 
114 
 
 DATUM POSTS. 
 
 Leading Cases. — 225. Bates. 
 
 Now, absurdities are always excluded by 
 construction, and vain and useless things 
 are never respected in a rational system 
 of procedure. Lex neminem cogit ad vana 
 ■seu inutilia peragenda; Uno dato absurdo 
 infinita sequuntur. 
 
 From the conserving principles of pro- 
 cedure the footing for the view of the 
 court in Bates is ample and most de- 
 fensible. 
 
 "While there are no pleadings in jus- 
 tices' courts in Illinois, Colorado and other 
 states, still, wherever abatement matter 
 may be raised before a court it must be 
 in the form of pleadings, and the most 
 technical of pleadings too. See Abate- 
 ment. The fact is, there are many things 
 added by judicial decisions to the statu- 
 tory provisions regulating procedure for 
 any grade of court. 
 
 Courts that do not construe for the in- 
 tegrity of the conserving principles of 
 procedure, or of protection, make of it a 
 mire of confusion and inconsistency. This 
 should be avoided, as it was in Bates. No 
 branch of the law is better calculated to 
 afford protection from oppression than 
 Res adjudicata. For its integrity courts 
 should construe. As a means of protec- 
 tion courts must preserve it, and legisla- 
 tures cannot destroy it. It should be 
 presumed they did not intend to. Ex- 
 pressio eorum, etc. ; Verba intentione 
 detent inservire; Concordare leges legibus, 
 etc. 
 
 See Huntsman : 231 ; Cruikshank ; 
 Moore : 21 ; Tex. R. R. v. Humble. 
 It is instructive to observe how the rules 
 and the requirements of one subject act 
 and re-act on another. A court should 
 construe for Res adjudicata, and therefore 
 necessarily its means, and also the means 
 of the rule quoted in Ransom : 122, among 
 other conserving principles. 
 Statutes regulating procedure ; how con- 
 strued. Indianapolis : 223 ; Concordare 
 leges legibus, etc. ; hex non exacte, etc. ; 
 Verba nihil operari melius est quam ab- 
 surde; End. Stat. 182. 
 The record in some form and under some 
 name must exist for the scheme of govern- 
 ment. It cannot be abolished. It is the 
 sole means of proving many important 
 things. Iverslie : 46 ; Moser ; Hannah : 
 128 : cases. It is essential wherever one 
 is condemned, or his property is seques- 
 tered, or any obligation is imposed by 
 law. This principle is applicable to all 
 judicial, quasi-judicial and administrative 
 proceedings. Throughout the law there 
 must be authority for the exercise of 
 every act, and this must appear some- 
 where, either in the files of a court of 
 record or from the face of the record of 
 inferior and statutory proceedings. No- 
 where, not even in ccrurts of record, are 
 jurisdictional facts supplied by intendment 
 or presumption. They must affirmatively 
 appear of record somewhere, for "what 
 
 Leading Cases. — 225. Bates. y * 
 
 ought to be of record must be proved by 
 record and by the right record." See 
 Iverslie ; Res adjudicata; Audi alteram 
 partem; De non apparentibus. Manda- 
 tory Record. 
 Statutory record must affirmatively show 
 that it includes all the evidence, else it 
 will be presumed there was other evidence 
 and sufficient to sustain the verdict. 
 Bates ; Grand Trunk R. R. i 290c; Rich- 
 ardson : 299 ; Verba fortius. 
 
 This important rule of the statutory 
 record must not be confused with the 
 mandatory rule relating to the common- 
 law record, requiring it to show affirma- 
 tively every jurisdictional fact necessary 
 for the exercise of jurisdiction. The last 
 rule is one of public policy and cannot 
 be condoned or waived, while everything 
 relating to the statutory record may be 
 waived. These records are for widely 
 differing purposes, as is elsewhere 
 shown. §§ 83-123, Gr. & Rud. 
 
 In all courts a statement of the issues 
 
 should be made before a trial proceeds. 
 
 Bates; Gay: 138; Adams v. Gill. See 
 
 Franklin Lodge. 
 
 225a. S. V. TOWNLET (1902), 67 Ohio 
 
 21, 65 N. E. 149, 93 Am. St. 636. 
 Cited, pp. 8, 14, 32, 34; §§ 23, 28, 37, 
 Hughes' Proc. ; §§ 33, 34, 84, 86, 88, 96, 
 102, 119, 263, 267, 268, Gr. & Rud. 
 A court has inherent power to carry for- 
 ward and discharge the due administra- 
 tion of justice. It may administer oaths 
 without reference to statutory prescrip- 
 tion, and perjury may be predicated 
 thereon. Expressio eorum, etc. See Con- 
 tempts ; Appellate Procedure ; Suth. 
 Stat. 341. 
 Courts may provide a court room. Dahuke, 
 168 111. 102, 39 L. R. A. 197, n. Also 
 essential records. 1 Freeman, Judg. 35, 
 37, 76; Bates. Clawson v. V. S. (1885), 
 185 U. S. 977. Courts have ' inherent 
 powers to carry out principal powers con- 
 ferred upon them. Statutory prescription 
 of procedure is not always mandatory, nor 
 is it exclusive. U. S. v. Hill (1809), 1 
 Brock. (U. S.) 156, No. 15,364 Fed. Cas. 
 (Marshall), quoted and affirmed. 
 No act of congress provides for the practice 
 relating to grand juries. Empanelling 
 and maintaining them attaches to the 
 court as a necessary incident. Kern v. 
 Huidekoper. Expressio eorum, etc. ; U. S. 
 v. Hill ; M'Culloch : 147 ; Lex non exacte, 
 etc. : Kollock (code) ; S. v. Bolden. 
 Contempt; Inherent power to punish sum- 
 marily. 99 Am. St. 624-676, ext n. 
 If a constitution provides for courts of ap- 
 pellate jurisdiction only, this carries with 
 it all necessary things for a review of 
 errors; likewise where a court of record 
 is created ; and where a clerk is provided 
 for, incidental things annex themselves by 
 implication, e. g., that a record shall be 
 kept to conserve the high conserving 
 principles of procedure or protection. 
 
DATUM POSTS. 
 
 115 
 
 Leading Cases. — 
 
 226. C. V. BEAN (1853), 11 Cush. 414 
 2 Lead. C. C. (B. & H.) 172-181, ext. n., 
 Chaplin, Crim. Cas. 465 ; U. S. v. Carll. 
 
 Bean stated: An indictment upon Rev. Sts. 
 
 ch. 126, § 42, for malicious destruction 
 
 of glass, must aver the glass to be part 
 
 of a building. An allegation that it was 
 
 in a certain building is insufficient. The 
 . statute was intended to protect buildings. 
 
 Moore; Cruikshank : 21, 232. 
 Pleading a statutory offense; generally it is 
 
 sufficient to describe it in the words of 
 
 the statute. R. v. Bullock (1856), Dears. 
 
 &'B. C. C. 653. Mews' B. C. L., 1 Bish. 
 
 Crim. Proc. 593-642. See Indictment ; 
 
 2 Sm. L. C. 669, 11th ed. ; McClain, Crim. 
 
 Law ; S. v. Campbell, 29 Cruikshank ; U. 
 
 S. v. Simmons ; U. S. v. Mills : James v. 
 
 Bowman : 232 ; Potter v. U. S., 155 U. S. 
 
 438. 
 Exception. U. S. v. Carll, 105 TJ. S. 611 
 
 (not good after verdict), citing C. v. 
 
 Bean ; Cruikshank ; U. S. v. Simmons, 96 
 
 U. S. 360: cases; U. S. v. Howell, 11 
 
 Wall. 432 ; C. v. Filburn, 119 Mass. 297 ; 
 
 Kelly v. P., 192 111. 119, 85 Am. St. 
 
 823 : cases ; Meadowcroft v. P. ; S. v. 
 
 Beach (Ind.) : 258; S. v. Bush, 47 Kan. 
 
 201, 13 L. R. A. 607 : cases. 
 Every presumption is against a pleader. 
 
 Bean ; James ; Carll ; Cruikshank ; Moore ; 
 
 Dovaston : 217. 
 
 227. C. v. HABI (1853), 11 Cush. 130, 
 2 Lead. C. C. (B. & H.) 1-18, 1 Bish. 
 Crim. Proc. 639. Whart. PI. & Pr. 238, 
 241, Clark, Crim. Proc. q. v. Cited, § 
 280, Hughes' Proc. 
 
 Pleading of exceptions and provisos in stat- 
 utes. 1 Bish. Cr. Proc. 631-639, Whart. 
 Cr. PI. & Pr. 238-241, Clark, Cr. Proc. 
 98, Bro. Max. 677-679, 2 Sm. L. C. 670, 
 11th ed. 
 
 Where there is an exception so incorpo- 
 rated with the enacting clause of a stat- 
 ute that the one cannot be read without 
 the other, then the exception must be neg- 
 atived. If the exception, by whatever 
 phraseology indicated, is in a substantive 
 clause, subsequent to the enacting clause, 
 though it be in the same section, it is 
 a matter of defense to be shown by the 
 defendants. Hart ; U. S. v. Cook, 17 Wall. 
 169, 12 Am. Law Reg. (N. S.) 682-698, 
 n. ; Gill v. Scrivens (1796), 7 Term (D. 
 & B.), 27, 2 Lead Crim. Cas. (B. & H.) 
 9. Statutes; how pleaded. Williams v. 
 Hingham : 7 ; Bean ; TJ. S. v. Gooding : 
 212 ; Suth. Stat. 216, 221, 222, 228. 
 
 228. JORDAN v. GKEESBOBO FUR- 
 NACE CO., 126 N. C. 143, 78 Am. St. 
 644-658, ext. n. 
 
 .Statutes of frauds and perjuries. The stat- 
 ute must be pleaded in England and in 
 states where the statute does not affect 
 the substance of the contract. And. Steph. 
 PI. 228 : cases ; 11 Mews' B. C. L. 831. 
 
 But where the substance of the contract 
 is affected, as in North Carolina, there 
 advantage may be taken of the statute 
 under the general denial. Jordan ; Moody 
 
 Leading Cases. — 228. Jordan. 
 
 (Tex. Civ. App.), unreported, 37 S. W. 
 379 ; stated, 78 Am. St. 656. 
 
 It may be raised under the general is- 
 sue or by special plea, at the option of the 
 defendant. Hotchkiss, 36 Vt. 593, 86 Am. 
 Dec. 679-688, ext. a. 
 Certainty requires that the issue be raised 
 at the right time and place, and in a 
 certain way. Res adjudicata rules and 
 conserving principles require that. 
 The Vermont rule is said to be the code 
 rule. 86 Am. Dec. 687 : cases. But see 
 78 Am. St. 648 (codes adopt common-law 
 rule; it must be pleaded). May be raised 
 under the general issue. May, 101 U. S. 
 231. 
 The plea of the statute is a personal plea, 
 and may be waived generally; therefore it 
 must be pleaded. Montgomery : 292. 
 One has a right to know what is waived and 
 in a certain and definite way. Ambiguous 
 and equivocal proceedings about such mat- 
 ter is opposed to the conserving principles 
 of procedure. From the general issue one 
 cannot determine whether or not waivable 
 matter is waived. Kollock. Defenses 
 resting on strict personal grounds should 
 be pleaded ; this accords with the gen- 
 eral rule that statutory rights must be 
 pleaded. Williams v. Hingham : 7. 
 On principle it seems the statute should be 
 pteaded. The decisions in several states 
 are very unsettled, as in New York and 
 Colorado. 78 Am. St. 656. 
 It must be pleaded. Citty, 93 Tenn. 276, 
 42 Am. St. 919, n. : cases ; stated, 78 Am. 
 St. 652 ; and also that the same rule pre- 
 vails in Illinois. Tarleton, 1 Gilm. 470, 
 41 Am. Dec. 193. May be raised under 
 the general denial. Indiana Trust Co., 
 160 Ind. 647. Cf. 78 Am. St. 648: cases. 
 May be raised on demurrer, when. Thomp- 
 son, 133 Ala. 630, 93 Am. St. 49, n. 
 Oral contract void in Kentucky, and there- 
 fore it must be averred that the contract 
 is in writing to sustain a judgment. 
 Hocker, 3 Mete. (Ky.) 463 ; stated, 79 
 Am. St. 649. 
 A plaintiff need not aver his contract was 
 in writing at common law. And. Steph. 
 PI. 228 : Rule 11. It is otherwise with 
 one defending under a statute that may 
 be waived. 
 
 Statute of limitations need not be 
 pleaded, 11 Mews' B. C. L. 832. 
 229. HARRIS V. MUSKINGUM MAN- 
 UFACTURING CO. (1836), 4 Blackf. 
 (Ind.) 267, 29 Am. Dec. 372-376, n. 
 Pleadings; corporate existence; essential al- 
 legation. That plaintiff is a corporation, 
 need not be alleged, when it sues in its 
 corporate name. Harris, Los Angeles v. 
 Davis ; Richardson ; n. 33 Am. Dec. 463 ; 
 Central Bank, 12 Wis. 624, 78 Am. Dec. 
 769, n. ; Miller, 2 Idaho, 1206, 35 Am. 
 St. 289, n. ; 3 Cook, Corp. 753 (caption 
 description insufficient) ; Expressio eorum. 
 Corporate existence must be averred. Note, 
 9 Am. R. R. & Corp. Rep. 72. And is 
 
116 
 
 DATUM POSTS. 
 
 Leading Cases. — 229. Harris. 
 
 essential. Miller, supra; S. v. Chicago, 
 etc. R. R., 4 S. Dak. 261, 46 Am. St. 
 783, n. ; 5 Encyc. PI. & Pr. 70-90 : cases. 
 Corporate existence need not be alleged. 
 Central Bank, supra. 
 May be waived, if not demurred to. Holden, 
 69 Minn. 527, 65 Am. St. 585, n. Los 
 Angeles v, Davis. 
 
 230. RICHARDSON V. ST. JOSEPH 
 IRON CO. (1839), 5 Blackf. 146, 33 Am. 
 Dec. 460. 
 
 Pleadings; corporate existence need not be 
 averred. Harris : 229. 
 
 Set-off; Mutuality. Debt due the defendant 
 and ano.ther is not a proper set-off in an 
 action against him for his separate debt. 
 Rose. 
 
 Practice; bill of exceptions; "all the evi- 
 dence"; presumptions. Bill of exceptions 
 must show it contains all the evidence, 
 either direct or impliedly, else it will be 
 presumed sufficient evidence existed. 
 Omnia prassumuntur rite. Bates : 225 ; 
 Consensus; Dovaston; Moore v. C. 
 
 Practice; new trial. Motion for must be 
 made for waivable error. Without it only 
 grave and incurable defects can afterward 
 be raised as a general rule. Consensus. 
 Motion for new trial essential to raise 
 antecedent error, unless grave and in- 
 curable. Consensus. Brewer; 296. 
 
 231. HUNTSMAN v. S. (1882), 12 Tex. 
 Ap. 619, 1 McClain, C. L. 609. §5 38, 78, 
 Hughes' Proc. ; §§ 118, 137, 143, 147, 239, 
 268, 278, Gr. & Rud. 
 
 Limitations of legislative power; it cannot 
 make an indictment for one thing to stand 
 for a different thing. An indictment for 
 larceny will not sustain a, sentence for 
 embezzlement. Expressio unius, etc. Al- 
 legata et probata must agree. It is an 
 absurdity to charge one thing and to sen- 
 tence for another. 
 
 "It is not, therefope, within the scope of 
 legislative authority, under our constitu- 
 tion, to provide for the conviction of the 
 accused for a crime which is not embraced 
 within the allegations of the indictment 
 on which he is tried ; and it makes no 
 difference what form the legislation for 
 such purposes may assume, it must be 
 void." 12 Tex. App. 635. 
 
 "It does seem certain that the indictment 
 in this case and the verdict and judgment 
 thereon would require much skill in false 
 reasoning to consider them together with- 
 out concluding in a reductio ad absurdum. 
 And as the law reasons logically, reject- 
 ing superfluous, contradictory and incon- 
 gruous things, when its solemn proceed- 
 ings are made objects of ridicule by its 
 officers or legislative enactment, the citi- 
 zen should be protected by the court." 
 
 "As the record in this case does not contain 
 any allegation, or show where the defend- 
 ant ever made any answer to a charge of 
 embezzlement, was it due process of law 
 to proceed to judgment, convicting him for 
 that crime before it was involved in an 
 issue -between the state and the defend- 
 ant? If so, the constitutional guaranties 
 are indeed but empty forms, idle ceremo- 
 nies, and one by one the most sacred 
 rights of freemen might all be removed, 
 and the very ends for which society was 
 
 Leading Cases. — 231. Huntsman. 
 
 organized be thwarted. If the legislature 
 can provide for the conviction of a citi- 
 zen without any charge informing him of 
 the nature and cause of the prosecution 
 against him in one, it can in every case, 
 and if it can do so indirectly, it can do so 
 directly. Affirm its right to do this, and. 
 each popular excitement may add another 
 instance of innovation until no man will 
 be safe in the enjoyment of life, liberty or 
 property." 12 Tex. App. 648-649. 
 
 There shall be no departure, is a rule that 
 is well sustained by Huntsman. 
 
 "Due process of law" defined and discussed. 
 Its definition by Webster in the Dartmouth 
 College Case and Murray : 219 ; quoted 
 and approved. Taylor : 219a cited and. 
 approved. Its meaning in Pennoyer. 
 
 Allegations defining — describing — a crime, 
 are demanded by "due process of law/*' 
 by the common lawj the state and the 
 federal law. U. S. v. Mills ; U. S. v. Cook,. 
 17 Wall. 169 ; Cruikshank (all stated and 
 approved). 
 
 A crime known to the laws of the land must 
 be described, and to this jurisdiction at- 
 taches but not to anything else. As to 
 everything else the proceedings are coram 
 non judice. Moore : 21. 
 
 Jurisdictional facts cannot be presumed; they 
 must affirmatively appear from the indict- 
 ment. Rushton. Only from the indict- 
 ment can jurisdictional facts appear. De 
 non apparentibus. 1 Bish. C. L. 807 ; 
 Cruikshank. 
 
 Without allegations there can be no 
 relevant proof. Shutte : 291. Nor can 
 there be a conviction. Huntsman v. S. ; 
 1 Bish. New Crim. Proced. 418 ; De non 
 apparentibus, etc. Frustra probatur, etc. 
 Saunderson (Code) . 
 
 Essential certainty necessary to give juris- 
 diction of subject matter, and this cannot 
 be waived. Huntsman ; Murphy, 24 Miss. 
 594 ; Moore ; S. v. Thurstin ; C. v. East- 
 man. R. v. Wheatley: 21, 22, 23. C. v. 
 Roby : 74 : cases. 
 
 Absurdities are excluded by construction. 
 12 Tex. Ap. 648 ; End. Stat. 182 ; Indian- 
 apolis. Bates: 223, 225. 
 
 Stare decisis disregarded where earlier de- 
 cisions are contrary to fundamental rights. 
 
 Limitations of legislative power to prescribe 
 pleading and proof. Los Angeles v. Davis ; 
 Kirby, 174 U. S. 47, 11 Am. Cr. Rep. 
 330-383, ext. n. ; Moore : 21 ; Dovaston : 
 217 ; S. v. Couch, 54 S. C. 286, 32 S. C. 
 408, 11 Am. Cr. Rep. 346 ("divers other 
 persons" not permissible). S. v. Thomas;. 
 S. v. Beach: 257, 258. 
 
 232. TT. S. V. CRUIKSHANK (1875), 92 
 U. S. 542 (23 L. ed. 588) ; McClain, 
 Const. Cas. 31, Boyd, Cas. Const. Law, 
 Tucker, Const, q. v.; Hare, Am. Const. 
 Law, 124 U. S. 487, Cool. Const. Lim. ; 
 Pom. Const. Law, Black, Const. Law. 
 
 Cited, pp. 6, 9, 11, 12, 17, 26; §§ 1, 4, 5-8, 
 10, 12, 21, 23, 28-31, 38, 44. 49. 51, 52, 
 72, 73, 78. 79, 80, 82, 104, 120, 144, 156, 
 187, 190, 204, 244, 245, Hughes' Proc. 
 
 Cited, §§ 1, 33, 60. 80, 88, 93, 96, 102, 108, 
 109, 112, 118, 119, 122-124, 142, 144,, 
 
DATUM POSTS. 
 
 117 
 
 Leading Oases. — 232. Cruikshank. 
 
 148, 163, 164, 198, 200, 201a, 202-204, 
 214, 223, 225, 232, 237, 238, 239, 246, 
 248, 261, 263, 267, 268, 270, 276-78, 
 292-294, 297, Gr. & Rud. 
 
 [U. S. v. Cruikshank, because of its 
 importance In procedure, construction and 
 well expressed views of the polity of the 
 federal government, is reported here 
 in full. It is a case of intensive applica- 
 tion and stands to support the claim for 
 a prescription constitution. It should be 
 connectedly considered with Windsor : 1, 
 and the maxims and cases appended 
 hereto.] 
 
 "1. Citizens are the members of the politi- 
 cal community to which they belong. They 
 are the people who compose the com- 
 munity, and who, in their associated ca- 
 pacity, have established or submitted 
 themselves to the dominion of government 
 for the promotion of their general welfare 
 and the protection of their individual as 
 well as their collective rights. The duty 
 of a -government to afford protection is 
 limited always by the power it possesses 
 for that purpose. 
 
 "2. There is in our political system a gov- 
 ernment of each of the several states, and 
 a government of the United States. Each 
 is distinct from the others, and has citi- 
 zens of its own, who owe it allegiance, 
 arid whose rights, within its jurisdiction, 
 it must protect. The same person may 
 be at the same time a citizen of the 
 United States and a citizen of a state ; but 
 his rights of citizenship under one of 
 these governments will be different from 
 those he has under the other. 
 
 "3. The government of the United States, 
 although it is, within the scope of its 
 powers, supreme and beyond the states, 
 can neither grant nor secure to its citi- 
 zens rights or privileges which are not 
 expressly or by implication placed under 
 its jurisdiction. All that cannot be so 
 granted or secured are left to the exclu- 
 sive protection of the states. 
 
 "4. The right of the people peaceably to as- 
 semble for lawful purposes, with the ob- 
 ligation on the part of the state to afford 
 it protection, existed long before the adop- 
 tion of the constitution. The first amend- 
 ment to the constitution, prohibiting con- 
 gress from abridging the right to assem- 
 ble and petition, was not intended to limit 
 the action of the state governments in re- 
 spect to their own citizens, but to operate 
 upon the national government alone. It 
 left the authority of the states unimpaired, 
 added nothing to the already existing pow- 
 ers of the United States, and guaranteed 
 the continuance of the right only against 
 congressional interference. The people, 
 for their protection in the enjoyment of 
 it, look to the states, where the power for 
 that purpose was originally placed. 
 
 "5. The right of the people peaceably to as- 
 semble, for the purpose of petitioning con- 
 gress for a redress of grievances, or for 
 anything else connected with the powers 
 or duties of the national government, is 
 an attribute of national citizenship, and, 
 as such, under the protection of and guar- 
 anteed by the United States. The very 
 idea of a government republican in form 
 implies that right, and an invasion of it 
 presents a case within the sovereignty of 
 the United States. 
 
 "6. The right to bear arms is not granted 
 by the constitution; neither is it in any 
 
 Leading Oases. — 232. Cruikshank. 
 
 manner dependent upon that instrument 
 for its existence. The second amendment 
 means no more than that it shall not be 
 infringed by congress, and has no other 
 effect than to restrict the powers of the 
 national government. 
 
 "7. Sovereignty, for the protection of the 
 rights, life and personal liberty within 
 the respective states, rests alone with the 
 states. 
 
 "8. The fourteenth amendment prohibits a 
 state from depriving any person of life, 
 liberty or property, without due process 
 of law, and from denying to (p. 543) any 
 person within its jurisdiction the equal 
 protection of the laws ; but it adds noth- 
 ing to the rights of one citizen as against 
 another. It simply furnishes an addi- 
 tional guarantee against any encroach- 
 ment by the state upon the fundamental 
 rights which belong to every citizen as 
 a member of society. The duty of pro- 
 tecting all of its citizens in the enjoyment 
 of an equality of rights was originally 
 assumed by the state, and it still remains 
 there. The only obligation resting upon 
 the United States is to see that the states 
 do not deny the right. This the amend- 
 ment guarantees, but no more. The pow- 
 er of the national government is limited 
 to the enforcement of this guaranty. 
 
 "9. In Minor v. Happersett, 12 Wall. 178, 
 this court decided that the constitution of 
 the United States has not conferred the 
 right of suffrage upon any one, and that 
 the United States have no voters of their 
 own creation in the states. In United 
 Stqtes v. Reese, et al., supra, p. 214, it 
 held that the fifteenth amendment has in- 
 vested the citizens of the United States 
 with a new constitutional right, which 
 is, exemption from discrimination in the 
 exercise of the elective franchise on ac- 
 count of race, color, or previous condition 
 of servitude. The right to vote in the 
 states comes from the states ; but the 
 right of exemption from the prohibited 
 discrimination comes from the United 
 States. The first has not been granted 
 or secured by the constitution of the 
 United States, but the last has been. 
 
 w 10. The counts of an indictment which 
 charge the defendants with having banded 
 and conspired to injure, oppress, threaten, 
 and intimidate citizens of the United 
 States, of African descent, therein named ; 
 and which in substance respectively al- 
 lege that the defendants intended thereby 
 to hinder and prevent such citizens in the 
 free exercise and enjoyment of rights and 
 privileges granted and secured to them in 
 common with other good citizens by the 
 constitution and laws of the United States-; 
 to hinder and prevent them in the free 
 exercise of the right peacefully to assem- 
 ble for lawful purposes ; prevent and hin- 
 der them from bearing arms for lawful 
 purposes ; derive them of their respective 
 several lives and liberty of person with- 
 out due process of law ; prevent and 
 hinder them in the free exercise and en- 
 joyment of their several right to the full 
 and equal benefit of the law ; prevent and 
 hinder them in the free exercise and en- 
 joyment of their several and respective 
 right to vote at any election to be there- 
 after by law had and held by the people 
 of the state of Louisiana, or to put them 
 in great fear of bodily harm, and to in- 
 jure and oppress them, because, being and 
 having been in all things qualified, they 
 had voted at an election theretofore had 
 
118 
 
 DATUM POSTS. 
 
 Leading Cases. — 232. Cruikshank. 
 
 and held according to law by the people of 
 said State — do not present a case within 
 the sixth section of the Enforcement Act 
 of May 31, 1870 (16 Stat. 141). To 
 bring a case within the operation of that 
 statute, it must appear that the right the 
 enjoyment of which the conspirators in- 
 tended to hinder or prevent, was one 
 granted or secured by the constitution or 
 laws of the United States. If it does not 
 so appear, the alleged offense is not in- 
 dictable under any act of congress. 
 
 Allegations must present essential facts: 
 
 "11. The counts of an indictment which, in 
 general language, charge the defendants 
 with an intent to hinder and prevent citi- 
 zens of the United States, of African de- 
 scent, therein named, in the free exercise 
 and enjoyment of the rights, privileges 
 and immunities, and protection, granted 
 and secured to them ip. 544) respectively 
 as citizens of the United States, and of 
 the State of Louisiana, because they were 
 persons of African descent, and with the 
 intent to hinder and prevent them in the 
 several and free exercise and enjoyment 
 of every, each, all and singular the several 
 rights and privileges granted and secured 
 to them by the constitution and laws of 
 the United States, do not specify any par- 
 ticular right and enjoyment of which the 
 conspirators intended to hinder or pre- 
 vent, and too vague and general, lack the 
 certainty and precision required by the 
 established rules of criminal pleading, 
 and are therefore not good and sufficient 
 in law. 
 
 "12. In criminal cases, prosecuted under the 
 laws of the United States, the accused has 
 the constitutional right 'to be informed of 
 the nature and cause of the accusation/ 
 The indictment must set forth the offense 
 with clearness and all necessary certainty, 
 to apprise the accused of the crime with 
 which he stands charged ; and every in- 
 gredient of which the offense is composed 
 must be accurately and clearly alleged. 
 It is an elementary principle of criminal 
 pleading, that, where the definition of an 
 offense, whether it be at common law or 
 by statute, includes general terms ; it is 
 not sufficient that the indictment shall 
 charge the offense in the same generic 
 terms as in the definition, but it must 
 state the species, — it must descend to par- 
 ticulars. The object of the indictment is, 
 first, to furnish the accused with such a 
 description of the charge against him as 
 will enable him to make his defense, and 
 avail himself of his conviction or acquittal 
 for protection against a further prosecu- 
 tion for the same cause ; and, second, to 
 inform the court of the facts alleged, so 
 that it may decide whether they are suffi- 
 cient in law to support a conviction if one 
 should be had. For this, facts are to be 
 stated, not conclusions of law alone. A 
 crime is made up of acts and intent ; and 
 these must be set forth in the indictment 
 with reasonable particularity of time, 
 place and circumstances. 
 
 "13. By the act under which this indictment 
 was found, the crime is made to consist 
 in the unlawful combination with an in- 
 tent to prevent the enjoyment of any right 
 granted or secured by the constitution, etc. 
 All rights are not so granted or secured. 
 Whether one is so or not is a question of 
 law, to be decided by the court. The 
 indictment should therefore, state the pan- 
 ticulars to inform the court as well as the 
 accused. It must appear from the indict- 
 
 Leading Oases. — 232. Cruikshank. 
 
 men that the acts charged will, if proved, 
 support a conviction for the offense al- 
 leged. 
 
 Mr. Chief Justice Waite delivered the 
 opinion of the court (p. 548) : 
 
 "This case comes here with a certificate by 
 the judges of the Circuit court for the 
 District of Louisiana that they were di- 
 vided in opinion upon a question which 
 occurred at the hearing. It presents for 
 our consideration an indictment contain- 
 ing sixteen counts, divided into two series 
 of eight counts each, based upon section 
 6 of the Enforcement Act of May 31 
 1870. That section is as follows: 
 
 "That if two or more persons shall band or 
 conspire together, or go in disguise upon 
 the public highway, or upon the premises 
 of another, with intent to violate any 
 provision of this act, or to injure, oppress, 
 threaten or intimidate any citizen, with 
 intent to prevent or hinder his free exer- 
 cise and enjoyment of any right or privi- 
 lege granted or secured to him by the con- 
 stitution or laws of the United States, or 
 because of his having exercised the same, 
 such person shall be held guilty of felony 
 and, on conviction thereof, shall be fined 
 or imprisoned, or both, at the discretion 
 of the court, — the fine, not to exceed $5,- 
 000, and the imprisonment not to exceed 
 ten years ; and shall, moreover, be there- 
 after ineligible to, and disabled from 
 holding, any office or place of honor, 
 profit or trust created by the constitu- 
 tion or laws of the United States : 16 
 Stat. 141. 
 
 "The question certified arose upon a motion 
 in arrest of judgment after a verdict of 
 guilty generally upon the whole sixteen 
 counts, and is stated to be, whether 'the 
 said sixteen counts of said indictment are 
 severally good and sufficient in law, and 
 contain charges of criminal matter indict- 
 able under the laws of the United States.' 
 
 "The general charge in the first eight counts 
 is that of 'banding,' and in the second 
 eight, that of 'conspiring' together to in- 
 jure, oppress, threaten and intimidate Levi 
 Nelson and Alexander Tillman, citizens of 
 the United States, of African descent and 
 persons of color, with the intent thereby 
 to hinder and prevent them in their free 
 exercise and enjoyment of rights and 
 privileges 'granted and. secured' to them 
 'in common with all other good citizens 
 of the United States by the constitution 
 and laws of the United States.* 
 
 "The offenses provided for by the statute in 
 question do not consist in the mere 'band- 
 ing' or 'conspiring' of two or (p. 549) 
 more persons together, but in their band- 
 ing or conspiring with the intent, or for 
 any of the purposes, specified. To bring 
 this case under the operation of the stat- 
 ute, therefore, it must appear that the 
 right, the enjoyment of which the con- 
 spirators intended to hinder or prevent, 
 was one granted or secured by the con- 
 stitution or laws of the United States. If 
 it does not so appear, the criminal matter 
 charged has not been made indictable by 
 any act of congress. 
 
 "We have in our political system a govern- 
 ment of the United States and a govern- 
 ment of each of the several states. Each 
 one of these governments is distinct from 
 the others, and each has citizens of its 
 own who owe it allegiance, and whose 
 
DATUM POSTS. 
 
 119 
 
 Leading Gases. — 232. Cruikshank. 
 
 rights, within its jurisdiction, it must 
 protect. The same person may be at the 
 same time a citizen of the United States 
 and a citizen of a state, but his rights of 
 citizenship under one of these governments 
 will be different from those he has under 
 the other. Slaughter House Cases, 16 
 Wall. 74 (83 L. ed. 408). 
 
 "Citizens are the members of the political 
 community to which they belong. They 
 are the people who compose the commun- 
 ity, and who, in their associated capacity, 
 have established or submitted themselves 
 to the dominion of a government for the 
 promotion of their general welfare and 
 the protection of their individual as well 
 as their collective rights. In the forma- 
 tion of a government, the people may 
 confer upon it such powers as they choose. 
 The government, when so formed, may, 
 and when called upon should, exercise all 
 the powers it has for the protection of 
 the rights of its citizens and the people 
 within its jurisdiction ; but it can exer- 
 cise no other. The duty of a government 
 to afford protection is limited always by 
 the power it possesses for that purpose. 
 Experience made the fact known to the 
 people of the United States that they 
 required a national government* for na- 
 tional purposes. The separate govern- 
 ments of the separate states, bound to- 
 gether by the articles of confederation 
 alone, were not sufficient for the promo- 
 tion of the general welfare of the people 
 in respect to foreign nations or for their 
 complete protection as citizens of the con- 
 federated states. For this reason, the 
 people of the United States, 'in order to 
 form a more perfect union, establish jus- 
 tice, insure domestic tranquillity, provide 
 for (p. 550) the common defense, pro- 
 mote the general welfare, and secure the 
 blessings of liberty' to themselves and 
 their posterity (Const. Preamble), or- 
 dained and established the government 
 of the United States, and denned its pow- 
 ers by a constitution, which they adopted 
 as its fundamental law, and made its 
 rule of action. 
 
 "The government thus established and de- 
 fined is to some extent a government of 
 the states in their political capacity. It 
 is also, for certain purposes, a government 
 of the people. Its powers are limited in 
 number, but not in degree. Within the 
 scope of its powers, as enumerated and 
 denned, it is supreme and above the 
 states ; but beyond, it has no existence. 
 It was erected for special purposes, and 
 endowed with all the powers necessary for 
 its own preservation and the accomplish- 
 ment of the ends its people had in view. 
 It can neither grant nor secure to its 
 citizens any right or privilege not ex- 
 pressly or by implication placed under 
 its jurisdiction. 
 
 "The people of the United States resident 
 within' any state are subject to two gov- 
 ernments : one state and the other na- 
 tional ; but there need be no conflict be- 
 tween the two. The powers which one 
 possesses, the other does not. They are 
 established for different purposes, and 
 have separate jurisdictions. Together 
 they make one whole, and furnish the 
 people of the United States with a com- 
 plete government, ample for the protec- 
 tion of all their rights at home and 
 
 Leading Cases.— 232. Cruikshank. 
 
 abroad. True, it may sometimes happen 
 that a person is amenable to both juris- 
 dictions for one and the same act. Thus, 
 if a marshal of the United States is un- 
 lawfully resisted while executing the proc- 
 ess of the courts within a state, and the 
 resistance is accompanied by an assault 
 on the officer, the sovereignty of the 
 United States is violated by the resist- 
 ance, and that of the state by the breach 
 of peace, in the assault. So, too, if one 
 passes counterfeited coin of the United 
 States within a state, it may be an 
 offense against the United States and the 
 state : the United States, because it dis- 
 credits the coin ; and the state, because of 
 the fraud upon him to whom it is passed. 
 This does not, however, necessarily imply 
 that the two governments possess powers 
 in common, or bring them into conflict 
 with each other. It is the natural conse- 
 quence of a citizenship (p. 551) which 
 owes allegiance to two- sovereignties, and 
 claims protection from both. The citizen 
 cannot complain, because he has volun- 
 tarily submitted himself to such a form 
 of government. He owes allegiance to the 
 two departments, so to speak, and within 
 their respective spheres must pay the 
 penalties which each exacts for disobedi- 
 ence to its laws. In return, he can de- 
 mand protection from each within its own 
 jurisdiction. 
 
 "The government of the United States is 
 one of delegated powers alone. Its au- 
 thority is defined and limited by the con- 
 stitution. All powers not granted to it 
 by that instrument are reserved to the 
 states or the people. No rights can be 
 acquired, under the constitution or laws 
 of the United States, except such as the 
 government of the United States has the 
 authority to grant or secure. All that 
 cannot be so* granted or secured are left 
 under the protection of the states. 
 
 "We now proceed to an examination of the 
 indictment, to ascertain whether the sev- 
 eral rights, which it is alleged the de- 
 fendants intended to interfere with, are 
 such as had been in law and in fact 
 granted or secured by the constitution 
 or laws of the United States. 
 
 "The first and ninth counts state the in- 
 tent of the defendants to have been to 
 hinder and prevent the citizens named in 
 the free exercise and enjoyment of their 
 'lawful right and privilege to peaceably 
 assemble together with each other and 
 with other citizens of the United States 
 for a peaceful and lawful purpose.' The 
 right of the people peaceably to assemble 
 for lawful purposes existed long before 
 the adoption of the constitution of the 
 United States. In fact, it is, and always 
 has been, one of the attributes of citizen- 
 ship under a free government. It 'de- 
 rives its source,' to use the language of 
 Chief Justice Marshall in Gibbons v. Og- 
 den, 9 Wheat 211, 'from those laws whose 
 authority is acknowledged by civilized 
 man throughout the world.' It is found 
 wherever civilization exists. It was not, 
 therefore, a right granted to the people 
 by the constitution. The government of 
 the United States when established found 
 it in existence, with the obligation on the 
 part of the states to afford it protection. 
 As no direct power over it was granted 
 to congress, it remains, according to the 
 
120 
 
 DATUM POSTS. 
 
 Leading Cases. — 232. Cruikshank. 
 
 ruling in Gibbons v. Ogden, id. 203, sub- 
 ject to state jurisdiction (p. 552). Only 
 such, existing rights were committed by 
 the people to the protection of congress 
 as came within the general scope of the 
 authority granted to the national govern- 
 ment. 
 "The first amendment to the constitution 
 prohibits congress from abridging the 
 'right of the people to assemble and to 
 petition the government for a redress of 
 grievances.' This, like other amendments 
 proposed and adopted at the same time, 
 was not intended to limit the powers of 
 the state governments in respect to their 
 own citizens, but to operate upon the na- 
 tional government alone. Barron v. The 
 City of Baltimore, 7 Pet. 250 ; Lessee of 
 Livingston v. Moore, id. 551 ; Fox v. 
 Ohio, 5 How. 434 ; Smith v. Maryland, 18 
 id. 76 ; Withers v. Buckley, 20 id. 90 
 (15 L. ed. 819) ; Pervear v. The Com- 
 monwealth, 5 Wall. 479 (18 L. ed. 609) ; 
 Twitchell v. The Commonwealth, 7 id. 321 
 (19 L. ed. 223) ; Edwards v. Elliott, 21 
 id. 557 (22 L. ed. 492). It is now too 
 late to Question the correctness of this 
 construction. As was said by the late 
 Chief Justice, in Twitchell v. The Com- 
 monwealth, 7 Wall. 325 (19 L. ed. 223), 
 'the scope and application of these amend- 
 ments are no longer subjects of discus- 
 sion here.' They left the authority of the 
 states just where they found it, and added 
 nothing to the already existing powers 
 of the United States. 
 "The particular amendment now under con- 
 sideration assumes the existence of the 
 right of the people to assemble for lawful 
 purposes, and protects it against encroach- 
 ment by congress. The right was not 
 created by the amendment ; neither was 
 its continuance guaranteed, except as 
 against congressional interference. For 
 their protection in its enjoyment, there- 
 fore, the people must look to the states. 
 The power for that purpose was orig- 
 inally placed there, and it has never been 
 surrendered to the United States. 
 "The right of the people peaceably to as- 
 semble for the purpose of petitioning con- 
 gress for a redress of grievances, or for 
 anything else connected with the powers 
 or the duties of the national government, 
 is an attribute of national citizenship, and, 
 as such, under the protection of, and 
 guaranteed by, the United States. The 
 very idea of a government, republican in 
 form, implies a right on the part of its 
 citizens to meet peaceably for consulta- 
 tion in respect to public affairs and to 
 petition for a redress of grievances. If 
 it had been alleged in ( p. 553 ) these 
 counts that the object of the defendants 
 was to prevent a meeting for such a pur- 
 pose, the case would have been within the 
 statute, and within the scope of the 
 sovereignty of the United States. Such, 
 however, is not the case. The offense, as 
 stated in the indictment, will be made out, 
 if it be shown that the object of the 
 conspiracy was to prevent a meeting for 
 any lawful purpose whatever. 
 "The second and tenth counts are equally 
 defective. The right there specified is 
 that of 'bearing arms for a lawful pur- 
 pose.' This is not a right granted by the 
 constitution. Neither Is it in any manner 
 
 Leading Cases.— 232. Cruikshank. 
 
 dependent upon that instrument for its 
 existence. The second amendment declares 
 that it shall not be infringed; but this, 
 as has been seen, means no more than 
 that it shall not be infringed by congress. 
 This is one of the amendments that has 
 no other effect than to restrict the powers 
 of the national government, leaving the 
 people to look for their protection against 
 any violation by their fellow-citizens of 
 the rights it recognizes, to what is called, 
 in the City of New York v. Miln, 11 Pet. 
 139, the 'powers which relate to merely 
 municipal legislation, or what was, per- 
 haps, more properly called internal police, 
 'not surrendered or restrained' by the con- 
 stitution of the United States. 
 "The third and eleventh counts are even 
 more objectionable. They charge the in- 
 tent to have been to deprive the citizens 
 named, they being in Louisiana, 'of their 
 respective several lives and liberty of 
 person without due process of law.* This 
 is nothing else than alleging a conspiracy 
 to falsely imprison or murder citizens of 
 the United States, being within the ter- 
 ritorial jurisdiction of the state of Louis- 
 iana. The rights of life and personal 
 liberty are natural rights of man. 'To 
 secure these rights,' says the Declaration 
 of Independence, 'governments are insti- 
 tuted among men, deriving their just 
 powers from the consent of the governed.' 
 The very highest duty of the states, when 
 they entered into the Union under the 
 constitution, was to protect all persons 
 within their boundaries in the enjoyment 
 of these 'unalienable rights with which 
 they were endowed by their Creator.' 
 Sovereignty, for this purpose, rests alone 
 with the states. It is no more the duty 
 or within the power of the United States 
 to punish for a conspiracy (p. 554) to 
 falsely imprison or murder within a state, 
 than it would he to punish for false im- 
 prisonment or murder itself. 
 'The fourteenth amendment prohibits a state 
 from depriving any person of life, liberty, 
 or property, without due process of law ; 
 but this adds nothing to the rights of one 
 citizen as against another. It simply fur- 
 nishes an additional guaranty against any 
 encroachment by the states upon the 
 fundamental rights which belong to every 
 citizen as a member of society. * As was 
 said by Mr. Justice Johnson, in Bank of 
 Columbia v. Okely, 4 Wheat. 244, it se- 
 cures the individual from the arbitrary 
 exercise of the powers of government, un- 
 restrained by the established principles of 
 private rights and distributive justice.' 
 These counts in the indictment do not 
 call for the exercise of any of the powers 
 conferred by this provision in the amend- 
 ment. 
 'The fourth and twelfth counts charge the 
 intent to have been to prevent and hinder 
 the citizens named, who were of African 
 descent and persons of color, in 'the free 
 exercise and enjoyment of their several 
 right and privilege to the full and equal 
 benefit of all laws and proceedings, then 
 and there, before that time, enacted or 
 ordained by the said state of Louisiana 
 and by the United States ; and then and 
 there, at that time, being in force in the 
 said state and district of Louisiana afore- 
 said, for the security of their respective 
 
DATUM POSTS. 
 
 121 
 
 Leading Gases. — 232. Cruikshank. 
 
 persons and property, then and there, at 
 that time enjoyed at and within said state 
 and district of Louisiana by white per- 
 sons, being citizens of said state of Louis- 
 iana and the United States, for the pro- 
 tection of the persons and property of said 
 white citizens.' There is no allegation 
 that this was done because of the race or 
 color of the persons conspired against. 
 When stripped of its verbiage, the case as 
 presented amounts to nothing more than 
 that the defendants conspired to prevent 
 certain citizens of the United States, be- 
 ing within the state of Louisiana, from 
 enjoying the equal protection of the laws 
 of the State and of the United States. 
 "The fourteenth amendment prohibits a state 
 from denying to any person within its 
 jurisdiction the equal protection of the 
 laws ; but this provision does not, any 
 more than the one which precedes it, and 
 .which we have just considered, add any- 
 thing (p. 555) to the rights which one 
 citizen has under the constitution against 
 another. The equality of the rights of 
 citizens is a principle of republicanism. 
 Every republican government is in duty 
 bound to protect all its citizens in the en- 
 joyment of this principle, if within its 
 power. The duty was originally assumed 
 by the states ; and it still remains there. 
 The only obligation resting upon the 
 United States is to see that the states do 
 not deny the right. This the amendment 
 guarantees, but no more. The power qf 
 the national government is limited to 
 the enforcement of this guaranty. 
 "Ho question arises under the Civil Rights 
 Act of April 9, 1866 (14 Stat. 27), which 
 is intended for the protection of citizens 
 of the United States in the enjoyment of 
 certain rights, without discrimination on 
 account of race, color, or previous condi- 
 tion of servitude, because, as has already 
 been stated, it is nowhere alleged in these 
 counts that the wrong contemplated 
 against the rights of these citizens was 
 on account of their race or color. 
 "Another objection is made to these counts, 
 that they are too vague and uncertain. 
 This will be considered hereafter, in con- 
 nection with the same objection to other 
 counts. 
 "'The sixth and fourteenth counts state the 
 intent of the defendants to have been to 
 hinder and prevent the citizens named, 
 being of African descent, and colored, 'in 
 the free exercise and enjoyment of their 
 several and respective right and privilege 
 to vote at any election to be hereafter by 
 law had and held by the people in and of 
 the said State of Louisiana, or by the 
 people of and in the parish of Grant 
 aforesaid.' In Minor v. Happersett, 21 
 "Wall. 178 (22 L. ed. 631), we decided 
 that the Constitution of the United States 
 has not conferred the right of suffrage 
 upon any one, and that the United States 
 have no voters of their own creation in 
 the States. In United States v. Reese et 
 al., supra, p. 214, we hold that the fif- 
 teenth^ amendment has invested the citi- 
 zens of the United States with a new con- 
 stitutional right, which is, exemption from 
 discrimination in the exercise of the elec- 
 tive franchise on account of race, color, 
 or previous condition of servitude. From 
 this it appears that the right of suffrage is I 
 
 Leading Cases. — 232. Cruikshank. 
 
 not a necessary attribute of- national 
 citizenship ; but that exemption from dis- 
 crimination in the exercise of that right 
 on (p. 556) account of race, etc., is; The 
 right to vote in the states comes from the 
 states ; but the right of exemption from 
 the prohibited discrimination comes from 
 the United States. The first has not been 
 granted or secured by the constitution of 
 the United States ; but the last has been. 
 
 "Inasmuch, therefore, as it does not appear 
 in these counts that the intent of the de- 
 fendants was to prevent these parties from 
 exercising their right to vote on account 
 of their race, -etc., it does not appear that 
 it was their Intent to interfere with any 
 right granted or secured by the constitu- 
 tion or laws of the United States. We 
 may suspect that race was the cause of 
 the hostility ; but it is not so averred. 
 This is material to a description of the 
 substance of the offense, and cannot be 
 supplied by implication. Everything es- 
 sential must be charged positively, and 
 not inferentially. The defect here is not 
 in form, but in substance. (Verba fortius.) 
 
 "The seventh and fifteenth counts are no 
 better than the sixth and fourteenth. The 
 intent here charged is to put the parties 
 named in great fear of bodily harm, and 
 to injure and oppress them, because, being 
 and having been in all things qualified, 
 they had voted 'at an election before that 
 time had and held according to law by 
 the people of the said State of Louisiana, 
 in said State," to-wit, on the fourth day 
 of November, A. D. 1872, and at divers 
 other elections by the people of the State, 
 also before that time had and held ac- 
 cording to law.* There is nothing to show 
 that the elections voted at were any other 
 than state elections, or that the conspiracy 
 was formed on account of the race of the 
 parties against whom the conspirators 
 were to act. The charge as made is really 
 of nothing more than a conspiracy to com- 
 mit a breach of the peace within a state. 
 Certainly it will not be claimed that the 
 United States have the power or are re- 
 quired to do mere police duty in the states. 
 If a state cannot protect itself against 
 domestic violence, the United States may, 
 upon the call of the executive, when the 
 legislature cannot be convened, lend their 
 assistance for that purpose. This is a 
 guaranty of the constitution (art. 4, sec. 
 4) ; but it applies to no case like this. 
 
 "We are therefore, of the opinion that the 
 first, second, third, fourth, sixth, seventh, 
 ninth, tenth, eleventh, twelfth, fourteenth, 
 (p. 557) and fifteenth counts do not con- 
 tain charges of a criminal nature made 
 indictable under the laws of the United 
 States, and that consequently they are not 
 
 ' good and sufficient in law. They do not 
 show that it was the intent of the defend- 
 ants, by their conspiracy, to hinder or 
 prevent the enjoyment of any right 
 granted or secured by the constitution. 
 (Actus non facit.) 
 
 "We come now to consider the fifth and 
 thirteenth and the eighth and sixteenth 
 counts, which may be brought together for 
 that purpose. The intent charged in the 
 fifth and thirteenth is 'to hinder and pre- 
 vent the parties in their respective free 
 exercise and enjoyment of the rights, 
 privileges, immunities, and protection 
 granted and secured to them respectively 
 
122 
 
 DATUM POSTS. 
 
 Leading Cases.— 232. Cruikshank. 
 
 as citizens of the United States, and as 
 citizens o£ said state of Louisiana' ; 'for 
 the reason that they. . . . being then 
 and there citizens of said state and of 
 the United States, were persons of African 
 descent and race, and persons of color, 
 and not white citizens thereof,' and in the 
 eighth and sixteenth, to hinder and prevent 
 them 'in their several and respective free 
 exercise and enjoyment of every, each, all, 
 and singular the several rights and privi- 
 leges granted and secured to them by the 
 constitution and laws of the United States. 
 The same general statement of the rights 
 to be interfered with is found in the fifth 
 and thirteenth counts. 
 
 "According to the view we take of these 
 counts, the question is not whether it is 
 enough, in general, to describe a statutory 
 offense in the language of the statute, but 
 whether the offense has here been de- 
 scribed at all. The statute provides for 
 the punishment of those who conspire 'to 
 injure, oppress, threaten, or intimidate any 
 citizen, with intent to prevent or hinder 
 his free exercise and enjoyment of any 
 right or privilege granted or secured to 
 him by the constitution or laws of the 
 United States." These counts in the in- 
 dictment charge, in substance, that the 
 intent in this case was to hinder and pre- 
 vent these citizens in the free exercise 
 and enjoyment of 'every, each, all, and 
 singular' the rights granted them by the 
 constitution, etc. There is no specifica- 
 tion of any particular right. The lan- 
 guage is broad enough to cover all. 
 
 "In criminal cases prosecuted under the 
 laws of the United States the accused has 
 the constitutional right 'to be informed 
 (p. 558) of the nature and cause of the 
 accusation.' Amend. VI. In United 
 States v. Mills, 7 Pet. 142, this was con- 
 strued to mean that the indictment must 
 set forth the offense 'with clearness and 
 all necessary certainty, to apprise the ac- 
 cused of the crime with which he stands 
 charged' ; and in United States v. Cook, 
 17 Wall. 174 (21 L. ed. 539), that 'every 
 ingredient of which the offense is com- 
 posed must be accurately and clearly al- 
 leged.' It is an elementary principle of 
 criminal pleading, that where the de- 
 finition of an offense, whether it be at 
 common law or by statute, 'includes 
 generic terms, it is not sufficient that the 
 indictment shall charge the offense in the 
 same generic terms as in the definition ; 
 but it must state the species, — it must 
 descend to particulars. 1 Arch. Cr. Pr. 
 and PI. 291. The object of the indictment 
 is, first, to furnish the accused with such 
 a description of the charge against him 
 as will enable him to make his defense, 
 and avail himself of his conviction or 
 acquittal for protection against a further 
 prosecution for the same cause ; and sec- 
 ond, to inform the court of the facts al- 
 leged, so that it may decide whether they 
 are sufficient in law to support a convic- 
 tion, if one should be had. For this, facts 
 are to be stated, not conclusions of law 
 alone. A crime is made up of acts and 
 intent ; and these must be set forth in the 
 indictment, with reasonable particularity 
 of time and circumstances. ( Actus. ) 
 
 "It is a crime to steal goods and chattels ; 
 but an indictment would be bad that did 
 not specify with some degree of certainty 
 
 Leading Cases. — 232. Cruikshank. 
 
 the articles stolen. This, because the ac- 
 cused must be advised of the essential 
 particulars of the charge against him, and 
 the court must be able to decide whether 
 the property taken was such as was the 
 subject of larceny. So, too, it is in some 
 states a crime for two or more persons 
 to conspire to cheat and defraud another 
 out of his property ; but it has been held 
 that an indictment for such an offense 
 must contain allegations setting forth the 
 means proposed to be used to accomplish 
 the purpose. This, because, to make such 
 a purpose criminal, the conspiracy must 
 be to cheat and defraud in a mode made 
 criminal by statute ; and as all cheating 
 and defrauding has not been made crim- 
 inal, it is necessary for the indictment 
 to state the means proposed, in order 
 that the court (p. 559) may see that they 
 are in fact illegal. S. v. Parker, 43 N. 
 H. 83 ; S. v. Keach, 40 Vt. 118 ; Alder- 
 man v. P., 4 Mich. 414, 69 Am. Dec. 321 ; 
 S. v. Roberts, 34 Me. 32. In Maine, it is 
 an offense for two or more to conspire 
 with the intent unlawfully and wickedly 
 to commit any crime punishable by im- 
 prisonment in the state prison (S. v. 
 Roberts) ; but we think it will hardly be 
 claimed that an indictment would be good 
 under this statute, which charges the ob- 
 ject of the conspiracy to have been 'unlaw- 
 fully and wickedly to commit each, every, 
 all and singular the crimes punishable by 
 imprisonment in the state prison.' All 
 crimes are not so punishable. Whether 
 a particular crime be such a one or not, 
 is a question of law. The accused has, 
 therefore, the right to have a specifica- 
 tion of the charge against him in this 
 respect, in order that he may decide 
 whether he should present his defense by 
 motion to quash, demurrer, or plea ; and 
 the court, that it may determine whether 
 the facts will sustain the indictment. So 
 here the crime is made to assist in the 
 unlawful combination with an intent to 
 prevent the enjoyment of any right 
 granted or secured by the constitution, 
 etc. All rights are not so granted or se- 
 cured. Whether one is so or not is a 
 question of law, to be decided by the 
 court, not the prosecutor. Therefore the 
 indictment should state the particulars, to 
 inform the court as well as the accused. 
 It must be made to appear — that is to 
 say, appear from the indictment, without 
 going further — that the acts charged will, 
 if proved, support a conviction for the 
 offense alleged. 
 "But it is needless to pursue the argument 
 further. The conclusion is irresistible 
 that these counts are too vague and gen- 
 eral. They lack the certainty and pre- 
 cision required by the established rules 
 of criminal pleading. It follows that they 
 are not good and sufficient in law. They 
 are so defective that no judgment of con- 
 viction should be pronounced upon them. 
 (Campbell: 2; Slacum; Moore: 21.) 
 The order of the circuit court arresting 
 the judgment upon the verdict is, 
 therefore, affirmed; and the cause 
 remanded, with instructions to dis- 
 charge the defendants." 92 U. S. 
 542-559 (23 L. ed. 588). 
 Mr. Justice Clifford, dissenting : 
 "I concur that the judgment in this case 
 should be arrested, but for reasons quite 
 
DATUM POSTS. 
 
 123 
 
 Leading Gases. — 232. Cruikshank. 
 
 different from those given by the court." 
 
 (P. 560) 
 
 "Power is vested in congress to enforce by 
 appropriate legislation the prohibition con- 
 tained in the fourteenth amendment of 
 the constitution ; and the fifth section of 
 the Enforcement Act provides to the effect 
 that persons who prevent, hinder, control, 
 or intimidate, or who attempt to prevent, 
 hinder, control, or intimidate, any person 
 to whom the right of suffrage is secured 
 or guaranteed by that, amendment, from 
 exercising or in exercising such right, by 
 means of bribery or threats ; of depriv- 
 ing such person of employment or occupa- 
 tion ; or of ejecting such person from 
 rented house, lands or other property ; 
 or by threats of refusing to renew leases 
 or contracts for labor ; or by threats of 
 violence to himself or family, — such per- 
 son so offending shall be deemed guilty of 
 a misdemeanor, and, on conviction thereof, 
 shall be fined or imprisoned, or both, as 
 therein provided. 16 Stat. 141. 
 
 "Provision is also made, by section 6 of the 
 same act, that, if two or more persons 
 shall band or conspire together, or go in 
 disguise, upon the public highway, or 
 upon the premises of another, with in- 
 tent to violate any provision of that act, 
 or to injure, oppress, threaten, or in- 
 timidate any citizen with intent to pre- 
 vent or hinder his free exercise and enjoy- 
 ment of any right or privilege granted or 
 secured to him by the constitution and 
 laws of the United States, or because of 
 his having exercised the same, such per- 
 sons shall be deemed guilty of felony, 
 and, on conviction thereof, shall be fined 
 or imprisoned, or both, and be further 
 punished as therein provided. 
 
 "More than one hundred persons were jointly 
 indicted at the April term, 1873, of the 
 circuit court of the United States for the 
 district of Louisiana, charged with 
 offenses in violation of the provisions of 
 the Enforcement Act. By the record, it 
 appears that the indictment contained 
 thirty-two counts, in two series of six- 
 teen counts each ; that the first series 
 were drawn under the fifth and sixth 
 sections of the act; and that the second 
 series were drawn under the seventh sec- 
 tion of the same act ; and that the latter 
 series charged that the prisoners are guil- 
 ty of murder committed by them in the act 
 of violating some of the provisions of the 
 two preceding sections of that act. 
 
 "Eight of the persons named in the indict- 
 ment appeared on (p. 561) the 10th of 
 June, 1874, and went to trial under the 
 plea of not guilty, previously entered at 
 the time of their arraignment. Three of 
 those who went to trial — to-wit, the three 
 defendants named in the transcript — were 
 found guilty by the jury on the first series 
 of the counts of the indictment, and not 
 guilty on the second series of the counts 
 in the same indictment. 
 
 "Subsequently the convicted defendants filed 
 a motion for a new trial, which motion 
 being overruled they filed a motion in 
 arrest of judgment. Hearing was had 
 upon that motion ; and the opinions of the 
 judges of the circuit court being opposed, 
 the matter in difference was duly certified 
 to this court, the question being whether 
 the motion in arrest of judgment ought 
 to be granted or denied. 
 
 Leading Oases. — 232. Cruikshank. 
 
 "Two only of the causes of arrest assigned 
 in the motion will be considered in 
 answering the questions certified: (1) Be- 
 cause the matters and things set forth 
 and charged in the several counts in ques- 
 tion do not constitute offenses against the 
 laws of the United States, and do not come 
 within the purview, true intent, and mean- 
 ing of the Enforcement Act. (2) Be- 
 cause the several counts of the indictment 
 in question are too vague, insufficient, 
 and uncertain to afford the accused proper 
 notice to plead and prepare their defense, 
 and do not set forth any offense defined 
 by the Enforcement Act. 
 
 "Pour other causes of arrest were assigned ; 
 but, in the view taken of the case, it will 
 be sufficient to examine the two causes 
 above set forth. 
 
 "Since the questions were certified into this 
 court, the parties have been fully heard 
 in respect to all the questions presented 
 for 'decision in the transcript. Questions 
 not pressed at the argument will not be 
 considered ; and, inasmuch as the counsel 
 in behalf of the United States, confined 
 their arguments entirely to the thirteenth, 
 fourteenth, and sixteenth counts of the 
 first series in the indictment, the answers 
 may well be limited to these counts, the 
 others being virtually abandoned. Mere 
 introductory allegations will be omitted 
 as .unimportant, for the reason that the 
 questions to be answered relate to the 
 allegations of the respective counts de- 
 scribing the offense. 
 
 "As described in the thirteenth count, the 
 charge is, that the (p. 562) defendants 
 did, at the time and place mentioned, 
 combine, conspire, and confederate to- 
 gether, between and among themselves, 
 for and with the unlawful and felonious 
 intent and purpose one Levi Nelson and 
 one Alexander Tillman, each of whom be- 
 ing then and there a citizen of the United 
 States, of African descent, and a person 
 of color, unlawfully and feloniously to in- 
 jure, oppress, threaten, and intimidate, 
 with the unlawful and felonious intent 
 thereby the said persons of color, respect- 
 ively, then and there to hinder and pre- 
 vent in their respective and several free 
 exercise and enjoyment of the rights, 
 privileges, and immunities, and protection, 
 granted and secured to them respectively 
 as citizens of the United States and citi- 
 zens of the state, by reason of their race 
 and color ; and because that they, the said 
 persons of color, being then and there citi- 
 zens of the state and of the United States, 
 were then and there persons of African 
 descent and race, and persons of color, and 
 not white citizens thereof, the same being 
 a right or privilege granted or secured to 
 the said persons of color respectively in 
 common with all other good citizens of 
 the United States, by the federal constitu- 
 tion and the laws of congress. 
 
 "Matters of law conceded, in the opinion of 
 the court, may be assumed to be correct 
 without argument ; and, if so, then discus- 
 sion is not necessary to show that every 
 ingredient of which an offense is composed 
 must be accurately and clearly alleged in 
 the indictment, or the indictment will be 
 bad, and may be quashed on motion, or 
 the judgment may be arrested before sen- 
 tence, or be reversed on a writ of error. 
 
124 
 
 DATUM POSTS. 
 
 Leading Oases. — 232. Cruikshank. 
 
 United States v. Cook, 17 Wall. 174 (21 
 L. ed. 539). « 
 
 ""Offenses created by statute, as well as 
 offenses at common law, must be accu- 
 rately and clearly described in an indict- 
 ment ; and, if the offense cannot be so 
 described without expanding the allega- 
 tions beyond the mere words of the stat- 
 ute, then it is clear that the allegations 
 of the indictment must be expanded to 
 that extent, as it is universally true that 
 no indictment is sufficient which does not 
 accurately and clearly allege all the in- 
 gredients of which the offense is composed, 
 so as to bring the accused within the true 
 intent and meaning of the statute defining 
 the offense. Authorities of great weight, 
 toesides those referred to by me, in the 
 dissenting opinion just read (p. 563), 
 may be read in support of that proposi- 
 tion. 2 East. P. C. 1124 ; Dord v. People, 
 9 Barb. 675 ; Ike v. State, 23 Miss. 525 ; 
 State v. Bldridge, 7 Eng. 608. 
 
 H 'Every offense consists of certain acts done 
 or omitted under certain circumstances ; 
 and in the indictment for the offense, it is 
 not sufficient to charge the accused gen- 
 erally with having committed the offense, 
 but all the circumstances constituting the 
 offense must be specially set forth. Arch. 
 Cr. PI., 15th ed., 43. 
 
 "Persons born or naturalized in the United 
 States, and subject to the jurisdiction 
 thereof, are citizens thereof, and the four-" 
 teenth amendment also provides, that no 
 state shall make or enforce any law 
 which shall abridge the privileges or im- 
 munities of citizens of the United States. 
 Congress may, doubtless, prohibit any 
 violation of that provision, and may pro- 
 vide that any person convicted of violating 
 the same shall be guilty of an offense, 
 and be subject to such reasonable punish- 
 ment as congress may prescribe. 
 
 ""Conspiracies of the kind described in the 
 introductory clause of the sixth section of 
 the Enforcement Act are explicitly for- 
 bidden by the subsequent clauses of the 
 same section ; and it may be that if the 
 indictment was for a conspiracy at com- 
 mon law, and was pending in a tribunal 
 naving jurisdiction of common-law of- 
 fenses, the indictment in its present form 
 might be sufficient, even though it contains 
 no definite allegation whatever of any par- 
 ticular overt act committed by the de- 
 fendants in pursuance of the alleged con- 
 spiracy. 
 
 ""Decided cases may doubtless be found in 
 which it is held that an indictment for a 
 conspiracy, at common law, may be sus- 
 tained where there is an unlawful agree- 
 ment between two or more persons to do 
 an unlawful act or do a lawful act by 
 unlawful means ; and authorities may be 
 referred to which support the proposition, 
 that the indictment, if the conspiracy is 
 well pleaded, is sufficient, even though it 
 be not alleged that any overt act had been 
 done in pursuance of the unlawful com- 
 bination. 
 
 ""Suffice it to say, however, that the authori- 
 ties to that effect are opposed by another 
 class of authorities equally respectable, 
 and even more numerous, which decide 
 that the indictment is (p. 564) bad un- 
 less it is alleged that some overt act was 
 committed in pursuance of the intent and 
 purpose of the alleged conspiracy ; and in 
 
 Leading Cases. — 232. Cruikshank. 
 
 all the latter class of cases it is held, 
 that the overt act, as well as the un- 
 lawful combination, must be clearly and 
 accurately alleged. 
 
 "Two reasons of a conclusive nature, how- 
 ever, may be assigned which show, be- 
 yond all doubt, that it is not necessary to 
 enter into the inquiry which class of those 
 decisions is correct. 
 
 "1. Because the common law is not a source 
 of jurisdiction in the circuit courts, nor 
 in any other federal court. 
 
 "Circuit courts have no common-law juris- 
 diction of offenses of any grade or de- 
 scription ; and it is equally clear that the 
 appellate jurisdiction of the supreme court 
 does not extend to any case or any ques- 
 tion, in a case not within the jurisdiction 
 of the subordinate federal courts. State 
 v. Wheeling Bridge Co., 13 How. 563 ; 
 United States v. Hudson et al., 7 Cranch, 
 32. 
 
 "2. Because it is conceded that the offense 
 described in the indictment is an offense 
 created and defined by an act of congress. 
 
 "Indictments for offenses created and de- 
 fined by statute must in all cases follow 
 the words of the statute ; and, where there 
 is no departure from that rule, the in- 
 dictment is in general sufficient, except in 
 cases where the statute is elliptical, or 
 where, by necessary implication, other con- 
 stituents are component parts of the 
 offense : as where the words of the statute 
 defining the offense have a compound sig- 
 nification, or are enlarged by what im- 
 mediatly precedes or follows the words 
 describing the offense, and in the same 
 connection. Cases of the kind do* arise, 
 as where, in the dissenting opinion in 
 United States v. Reese et al., supra, p. 
 222, it was held, that the words offer to 
 pay a capitation taw were so expanded by 
 a succeeding clause of the same sentence 
 that the word 'offer' necessarily included 
 readiness to perform what was offered, the 
 provision being that the offer should, be 
 equivalent to actual performance if the 
 offer failed to be carried into execution 
 by the wrongful act or omission of the 
 party to whom the offer was made. 
 
 'Two offenses are in fact created and de- 
 fined by the eighth section of the Enforce- 
 ment Act, both of which consist of a (p. 
 565) conspiracy with an intent to perpe- 
 trate a forbidden act. They are alike in 
 respect to the conspiracy ; but differ very 
 widely in respect to the act embraced in 
 the prohibition. 
 
 '1. Persons, two or more, are forbidden to 
 band or conspire together, or go in dis- 
 guise upon the public highway, or on the 
 premises of another, with intent to vio- 
 late any provision of the Enforcement Act, 
 which is an act of twenty-three sections. 
 
 'Much discussion of that clause is certainly 
 unnecessary, as no one of the counts un- 
 der consideration is founded on it, or con- 
 tains any allegations describing such an 
 offense. Such a conspiracy with intent to 
 injure, oppress, threaten, or intimidate 
 any person, is also forbidden by the suc- 
 ceeding clause of that section, if it be done 
 with intent to prevent or hinder his free 
 exercise and enjoyment of any right or 
 privilege granted or secured to him by 
 the constitution or laws of the United 
 States, or because of having exercised the 
 same. Sufficient appears in the thirteenth 
 
DATUM POSTS. 
 
 125 
 
 leading Cases. — 232. Cruikshank. 
 
 count to warrant the conclusion, that the 
 grand jury intended to charge the defend- 
 ants with the second offense created and 
 defined in the sixth section of the Enforce- 
 ment Act. 
 
 "'Indefinite and vague as the description of 
 the offense there defined is, it is obvious 
 that it is greatly more so as described 
 in the allegations of the thirteenth count. 
 By the act of congress the prohibition is 
 extended to any right or privilege granted 
 or secured by the constitution or laws of 
 congress ; leaving it to the pleader to 
 specify the particular right or privilege 
 •which had been invaded, in order to give 
 the accusation that certainty which the 
 rules of criminal pleading everywhere re- 
 quire in an indictment ; but the pleader 
 In this case, overlooking any necessity 
 for any such specification, and making no 
 attempt to comply with the rules of crim- 
 inal pleading in that regard, describes the 
 supposed offense in terms much more 
 vague and indefinite than those employed 
 in the act of congress. 
 
 "'Instead of specifying the particular right 
 or privilege which had been invaded, the 
 pleader proceeds to allege that the de- 
 fendants, with all the others named in the 
 indictment, did combine, conspire and con- 
 federate together with the unlawful intent 
 and purpose the said persons of African 
 ■descent and (p. 566) persons of color theli 
 and there to injure, oppress, threaten and 
 Intimidate, and thereby then and there 
 to hinder and prevent them in the free 
 exercise and enjoyment of the rights, 
 privileges and immunities and protection 
 granted and secured to them as citizens of 
 the United States and citizens of the state 
 "without any other specification of the 
 rights, privileges, immunities and protec- 
 tion which had been violated or invaded, 
 or which were threatened except what fol- 
 lows ; to-wit, the same being a right or 
 privilege granted or secured in common 
 with all other good citizens by the con- 
 stitution and laws of the United States. 
 
 ■"Vague and indefinite allegations of the kind 
 are not sufficient to inform the accused in 
 a criminal prosecution of the nature and 
 cause of the accusation against him, with- 
 in the meaning of the sixth amendment of 
 the constitution. 
 
 "Valuable rights and privileges, almost with- 
 out number are granted and secured to 
 citizens by the constitution and laws of 
 congress ; none of which may be with im- 
 punity, invaded in violation of the prohi- 
 bition contained in that section. Congress 
 intended by that provision to protect citi- 
 zens in the enjoyment of all such rights and 
 privileges ; but in affording such protec- 
 tion in the mode there provided congress 
 never intended to open the door to the 
 invasion of the rule requiring certainty in 
 criminal pleading, which for ages has been 
 regarded as one of the great safeguards 
 of the citizen against oppressive and 
 groundless prosecutions. 
 
 "'Judge Story says the indictment must 
 charge the time and place and nature and 
 circumstances of the offense with clearness 
 and certainty, so that the party may have 
 full notice of the charge, and be able to 
 make his defense with all reasonable 
 knowledge and ability. 2 Story Const., 
 § 1785. 
 
 "'Nothing need be added to show that the 
 
 Leading Cases. — 232. Cruikshank. 
 
 fourteenth count is founded upon the same 
 clause in the sixth section of the Enforce- 
 ment Act as the thirteenth count, which 
 will supersede the necessity of any ex- 
 tended remarks to explain the nature and 
 character of the offense there created and 
 defined. Enough has already been re- 
 marked to show that that particular clause 
 was passed to protect citizens in the free 
 exercise and enjoyment of every right or 
 privilege granted (p. 567) or secured to 
 them by the constitution and laws of 
 congress, and to provide for the punish- 
 ment of those who band or conspire to- 
 gether, in the manner described, to injure, 
 oppress or intimidate any citizen, to pre- 
 vent or hinder him from the free exercise 
 and enjoyment of all such right or privi- 
 lege, or because of his having exercised 
 any such right or privilege so granted or 
 secured. 
 
 "What is charged in the fourteenth count 
 is, that the defendants did combine, con- 
 spire, and confederate the said citizens of 
 African descent and persons of color to 
 injure, oppress, threaten and intimidate, 
 with intent the said citizens thereby to 
 prevent and hinder in the free exercise 
 and enjoyment of the right and privilege 
 to vote at any election to be thereafter 
 had and held according to law by the 
 people of the state, or by the people of the 
 parish ; they, the defendants, well know- 
 ing that the said citizens were lawfully 
 qualified to vote at any such election 
 thereafter to be had and held. 
 
 "Confessedly, some of the defects existing in. 
 the preceding count are avoided in the 
 count in question ; as, for example, the 
 description of the particular right or priv- 
 ilege of the said citizens which it was 
 the intent of the defendants to invade is 
 clearly alleged : but the difficulty in the 
 count is, that it does not allege for what 
 purpose the election or elections were to 
 be ordered, nor when and where the elec- 
 tions were to be had and held. AH that 
 is alleged upon the subject is, that it 
 was the intent of the defendants to pre- 
 vent and hinder the said citizens of Af- 
 rican descent and persons of color in the 
 free exercise and enjoyment of the right 
 and privilege to. vote at any election 
 thereafter to be had and held, according 
 to law, by the people of the State, or by 
 the people of the parish, without any 
 other allegation whatever as to the pur- 
 pose of the election, or any allegation 
 as to the time and place when and where 
 the election was to be had and held. 
 
 "Elections thereafter to be held must mean 
 something different from pending elec- 
 tions ; but whether the pleader mepns to 
 charge the intent and purpose of the al- 
 leged conspiracy extended only to the next 
 succeeding election to be held in the state 
 or parish, or to all future elections to be 
 held in the state or parish during the 
 lifetime of the parties, may admit of (p. 
 568) a serious question, which cannot be 
 easily solved by any thing contained in 
 the allegations of the count. 
 
 "Reasonable certainty, all will agree, is re- 
 quired in criminal pleading ; and if so it 
 must be conceded, we think, that the alle- 
 gation in question fails to comply with 
 the requirement. Accused persons, as 
 matter of common justice, ought to have 
 the charge against them set forth in such 
 
126 
 
 DATUM POSTS. 
 
 Leading Cases. — 232. Cruikshank. 
 
 terms that they may readily understand 
 the nature and character of the accusation 
 in order that they, when arraigned, may 
 know what answer to make to it, and that 
 they may not be embarrassed in conduct- 
 ing their defense ; and the charge ought 
 also to be laid in such terms that, if 
 the party accused is put to trial, the ver- 
 dict and judgment may be pleaded in bar 
 of a second accusation for the same 
 offense. 
 
 "Tested by these considerations, it is quite 
 clear that the fourteenth count is not 
 sufficient to warrant the conviction and 
 sentence of the accused. 
 
 "Defects and imperfections of the same kind 
 as those pointed out in the thirteenth 
 count also exist in the sixteenth count, 
 and of a more decided character in the 
 latter count than in the former ; con- 
 clusive proof of which will appear by a 
 brief examination of a few of the most 
 material allegations of the charge against 
 the defendants. Suffice it to say, with- 
 out entering into details, that the intro- 
 ductory allegations of the count are in 
 all respects the same as in the thirteenth 
 and fourteenth counts. None of the in- 
 troductory allegations allege that any 
 overt act was perpetrated in pursuance 
 of the alleged conspiracy ; but the jurors 
 proceed to present that the unlawful and 
 felonious intent and purpose of the de- 
 fendants were to ' prevent and hinder the 
 said citizens of African descent and per- 
 sons of color, by the means therein de- 
 scribed, in the free exercise and enjoy- 
 ment of each, every, all, and singular 
 the several rights and privileges granted 
 and secured to them by the constitution 
 and laws of the United States In com- 
 mon with all other good citizens, without 
 any attempt to describe or designate any 
 particular right or privilege which it 
 was the purpose and intent of the de- 
 fendants to invade, abridge or deny. 
 
 ■'Descriptive allegations in criminal plead- 
 ing are required to be reasonably definite 
 and certain, as a necessary safeguard (p. 
 569) to the accused against surprise, mis- 
 conception, and error in conducting his 
 defense, and in order that the judgment 
 in the case may be a bar to a second 
 accusation for the same charge. Con- 
 siderations of the kind are entitled to 
 respect ; but it is obvious, that if such a 
 description of the ingredient of the offense 
 created and defined by an act of congress 
 is held to be sufficient, the indictment 
 must become a snare to the accused : as 
 it is scarcely possible that an allegation 
 can be framed which would be less cer- 
 tain, or more at variance with the uni- 
 versal rule that every ingredient of the 
 offense must be clearly and accurately 
 described so as to bring the defendant 
 within the true intent and meaning of the 
 provision defining the offense. Such a 
 vague and indefinite description of a ma- 
 terial ingredient of the offense is not a 
 compliance with the rules of pleading in 
 framing an indictment. On the contrary, 
 such an indictment is insufficient, and 
 must be held bad on demurrer or in arrest 
 of judgment. 
 
 "Certain other causes for arresting the judg- 
 ment are assigned in the record, which 
 deny the constitutionality of the Enforce- 
 ment Act ; but having come to the con- 
 
 Leading Cases. — 232. Cruikshank. 
 
 elusion that the indictment is insufficient, 
 it is not necessary to consider that ques- 
 tion." 92 U. S. 559-569 (23 L. ed. 594- 
 597). 
 
 U. 8. v. Cruikshank involves several of the 
 most important principles of procedure. 
 It reaffirms the leading rule in R. v. 
 Wheatley : 19, and Rushton : 5 — the state- 
 ment of claim shall define a wrong known 
 to the laws of the land. Prom those 
 cases, and in relation to the rule they 
 bear, this case should be carefully con- 
 sidered. See Allegations ; Continental 
 Ins. Co. v. Rhoads. Slacum ; Bowman 
 v. P. ; 2 Cent. Dig. App. & Ekror. § 
 1223; 2 Cyc. 691, 715. 
 
 No case better presents the rule that the 
 pleading shall state "a cause of action" — 
 describe a wrong. The motion in arrest 
 was represented by able lawyers, among 
 whom was David Dudley Field, the author 
 of the New York Code of Civil procedure, 
 with which this motion in arrest was con- 
 sistent, because that Code provides that 
 the complaint shall contain a statement 
 of the facts constituting a cause of action 
 in ordinary and concise language and 
 without unnecessary repetition. 
 
 U. 8. v. Mills and U. S. v. Cook, widely cited 
 cases to the point that an indictment must 
 be certain and contain regular allegations 
 of fact, are stated and explained. Hunts- 
 man. 
 
 There must be regular allegations, is the 
 fourth requirement of "due process of 
 law/' as defined in Murray : 219. The fore- 
 going cases discuss that element and indis- 
 pensable requirement in "due process of 
 law." Huntsman ; Moore : 21. 
 
 The motion in arrest depended upon the rule, 
 every presumption is against a pleader, as 
 it was applied in Dovaston: 217; Green: 
 90, and in Kewaunee : 29; Harvey v. 
 Brydges and Hanford: 86. In relation 
 to this the court observed : 
 
 "We may suspect that race was the cause 
 of the hostility, but it is not so averred. 
 This is material to a description of the 
 substance of the offense, and cannot be 
 supplied by implication. Everything es- 
 sential must be charged positively, and 
 not inferentially. The defect here is 
 not in form, but in substance. 1 * 92 U. 
 S. 556. 
 
 Resort cannot oe had to judicial knowledge 
 to raise controversies not raised by the 
 pleadings. 180 U. S. 480, n. : cases; id. 
 533. See Dictum. 
 
 The abovp quotation expresses a rule 
 that is applied to all records, civil or 
 criminal, and from all courts, superior or 
 inferior. Jurisdictional facts are not pre- 
 sumed. Ranso?n : 122 ; Hannah : 128 ; 
 Rushton : 5 ; Hanford : 86 ; Borkenha- 
 gen; Sto. PI. 10. Bowman v. P.. Slacum; 
 2 Cyc. 689-691 (conflicting cases) ; Moore: 
 21 : cases. 
 
 Jurisdictional facts must affirmatively appear 
 in a record; "regular allegations" must 
 present these. Murray: 219. In an indict- 
 
DATUM POSTS. 
 
 127 
 
 Leading Cases. — 232. Cruikshank. 
 
 ment they must appear in black upon white, 
 and within its four corners ; they cannot 
 be interred and argued in, they must be 
 tangible and plainly appear with cer- 
 tainty. They cannot depend upon suspi- 
 cion or conjecture. De non apparentibus. 
 If omitted the defect is one of substance 
 and cannot be waived ; a sentence without 
 them is vulnerable to a motion in arrest 
 of judgment, and of course collateral at- 
 tack. 
 
 The indictment is the foundation of a 
 criminal prosecution, and if it is bad in 
 substance the sentence fails. Debile fun- 
 damentum fallit opus; Frustra probatur 
 quod probatum non relevat. 
 
 Conclusions of. law are insufficient — they are 
 nullities. This rule is applied in a very 
 clear and instructive way. For this rule 
 the case should be studied and well re- 
 membered. J'Anson: 91; Green: 90; 
 Moore : 21 ; Hopper : 4 ; Mallinckrodt : 
 126. See Allegations ; Conclusions ; 
 Cause of Action ; Identification. 
 
 JSxpressio unius est exclusio alterius is well 
 illustrated in reference to the enumerated 
 powers of the federal government (p. 549, 
 92 U. SO, and also with respect to the 
 necessity ,of description of one certain 
 crime (pp. 556-559, 92 U. S.). 
 
 The polity of the federal government, and 
 its relation to the state governments is 
 clearly presented. The Slaughter House 
 Cases is quoted from, and also other nota- 
 ble and leading federal cases, such as 
 Gibbons and New York v. Miln. See also 
 Collector v. Day: 148. Cruikshank was 
 much considered in U. S. v. Hodges, 203 
 U. S. 1. In this case a conspiracy against 
 negroes with proper averments failed. This 
 far Cruikshank was denied. See James : 
 233 ; Hanford : 86 ; Burks : 217a. 
 
 Statutory crimes must be charged in lan- 
 guage beyond the words of the statute, 
 if necessary to describe the elements of a 
 crime. Act and intent are essential to 
 constitute crime, and each of these ele- 
 ments must be averred. Actus non facit 
 reum nisi mens sit rea. In this case the 
 intent is not charged. Generally it is 
 sufficient to charge a crime in the language 
 of the statute. C. v. Bean: cases: 226. 
 
 General allegations are insufficient. From 
 such, courts will not carve out a crime to 
 fit the evidence after its admission. 
 James: 233. One has the right to know 
 the specific crime he Is charged with, and 
 if he cannot determine this, the allega- 
 tions are nullities and cannot be waived 
 or cured or aided. They are fatal to any 
 and all attacks — to motions in arrest o! 
 judgment. McAllister; Hopper. They 
 are no authority for receiving evidence. 
 Pleadings are to limit issues and to nar- 
 row proofs; Kollock; Gay: 138; Shutte: 
 291. Frustra probatur. 
 
 Omne majus continet in se minus is not ap- 
 plied to establish particular and necessary 
 allegations from sweeping general state- 
 
 Leading Cases. — 232. Cruikshank. 
 
 ments, out of which almost any kind of an 
 offense could be carved and established 
 by the ingenuity of counsel, before a loose 
 and uncertain court which had no compre- 
 hension of a, certain and definite theory of 
 procedure. De non apparentibus, etc. A 
 certain crime must be charged and it 
 must be proved as laid. Bristow : 135. 
 Adore, etc. 
 
 A case may be too broadly stated. CrvAk- 
 ' shank, and so, too, of dilatory matter. 
 Kraner: 299. 
 
 A conspiracy may be provided for with- 
 out reference to any specific act, but if 
 the latter is provided for, then it must be 
 averred as descriptive of the offense. "Wil- 
 liams : 7 ; Bartlett ; Russell v. Mann ; 
 Haddock ; Andrews ; Tyler v. Pomeroy ; 
 Virginia Coupon Cases. 
 
 That a study of procedure is a study of 
 government is well illustrated in V. S. v. 
 Cruikshank. For this view it deserves 
 especial attention. 
 
 The uses of the indictment to apprise 
 the defendant of the charge and of the 
 court is reiterated with the usual em- 
 phasis ; there was also reference to its 
 use for res adjudicata (former jeopardy) 
 purposes. The case also shows the im- 
 portance of the record to enable the ap- 
 pellate court to review the precise points 
 that were viewed and considered by the 
 trial court. 
 
 Accusatory governments must respect the 
 principle in Cruikshank. Governments 
 that proceed without allegations and 
 proofs are inquisitorial, and are absolute 
 or savage or barbarous. These are not 
 protecting. See Windsor : 1 ; J'Anson : 
 81 ; Lange : 159 ; Dovaston : 217. 
 
 Courts are bound by their records wherever 
 the points assigned and the record in- 
 volved is presented and discussed, as in 
 Cruikshank. About this the case is a 
 model that might be well followed in 
 appellate procedure. Wherever records 
 are disposed of by sweeping conclusions 
 and palpable disregard is shown the mat- 
 ter presented, courts do not consider they 
 are bound by their records. 
 
 Indictments must be certain, to inform the 
 defendant of what he stands charged. 
 2 Sto. Const., § 1785. And for other pur- 
 poses. Sto. PI. 10 ; R. v. Goldsmith : 20 ; 
 sub, Rosen : 92 ; Guedel : 74a. 
 
 Statements to found a judgment on must be 
 certain.. Huntsman; Beaumont: 367; 
 Moore, 43 Or. 243, 99 Am. St. 724 (Code) ; 
 Saunderson (Code). 
 
 232a. DOBSON V. CAMPBELL (1S33), 
 1 Sumner, 319 : Cases, 1 Robt. Pat. 681, 
 7 Fed. cases 783 ; And. Steph. PI. 230 : 
 Cases, with Jackson v. Pesked, 1 M. & S. 
 237 (1 Chit. PI. 705, 714) ; also notes 1 
 Saunders, R. 228 (same rule as R. v. 
 Goldsmith: 20), also Spieres v. Parker 
 1 T. R. 145 (Rushton: 5), and Smith v. 
 U. S. 1 Gall. 267. 1 Chit. PI. 705-716. 
 From all, the rule is gathered and stated : 
 
 "If the declaration upon an assignment of a 
 
128 
 
 DATUM POSTS. 
 
 Leading Cases. — 232a. Dobson. 
 
 patentright omits to state that the assign- 
 ment has been duly recorded in the state 
 department, the defect is cured by a ver- 
 dict for the plaintiff. 
 
 "Where a fact must necessarily have been 
 proved at the trial to justify the verdict, 
 and the declaration omits to state it, the 
 defect is cured by the verdict, if the gen- 
 eral terms of the declaration are other- 
 wise sufficient to comprehend the proof." 
 Omne majus continet in se minus : 70-83, 
 105 Mo. Ap. 567 (rule in Dobson stated). 
 
 In Jackson BUenborough said: "When a 
 matter is so essentially necessary to be 
 proved, that, had it not been given in 
 evidence, the jury could not have given 
 such a verdict, then the want of stating 
 that matter in express terms in the decla- 
 ration, provided it contains terms suffi- 
 ciently general to comprehend it in fair 
 and reasonable intendment, will be cured 
 by a verdict." 
 
 Smith : — "It is a general rule that, where- 
 soever it may be presumed that anything 
 must of necessity be given in evidence, the 
 want of mentioning it in the record, will 
 not vitiate it after a verdict." 
 
 It will not be assumed that the trial 
 court acted absurdly, or without authority, 
 if by intendment, a different construction 
 can be given the record. Interest reipub- 
 licce, etc. ; Ut res magis valeat quam 
 per eat. 1 Gr. Bv. 19 ; Bro. Max. 182, 
 602, Moore; Waverton; Waters: 21, 70, 
 71; R. v. Goldsmith: 20. Young, 105 
 Mo. Ap. 563 (liberal). Robinson, id. 
 567. See Allegations. 
 
 333. JAMES V. BOWMAN (1903), 190 
 U. S. 127. Cited, § 246, Gr. & Rud. 
 
 The same rule applies in fraud also in 
 civil cases. Fish v. Cleland ; Frustra pro- 
 batur, etc. 
 
 James stated: Bowman was convicted in a 
 federal court for bribing negro voters, 
 in Kentucky. The conviction rested on 
 § 5507 R. S. U. S., which was a general 
 provision against bribery at all elections, 
 both state and federal. The statute rested 
 on the XVth Amendment of the Constitu- 
 tion of the United States : "§ 1. The right 
 of citizens of the United States to vote 
 shall not be denied or abridged by the 
 United States or by any state on account 
 of race, color, or previous condition oi 
 servitude." "§ 2. The congress shall 
 have power to enforce this article by ap- 
 propriate legislation." 
 
 B. raised the question of the statute 
 (§ 5507) by habeas corpus, and was re- 
 leased, according to Lackey, 46 C. C. A. 
 189, 107 Fed. 114. 
 
 The government appealed. Its conten- 
 tion was : 1. That the statute was to pro- 
 tect federal elections under the broad pow- 
 er of protecting its own existence. (M'Cul- 
 loch : 147 ; Logan : 249.) 2. That a statute 
 may be valid in part and void in part. 
 (Spraigue.) 
 It was not alleged that any state agency was 
 violating the law, nor was it averred 
 that the voters were bribed on account of 
 race, color or previous condition of servi- 
 tude. In substance, such were the lead- 
 
 Leading Cases. — 233. James. 
 
 ing features of the record. Cruikshank. 
 
 The court held the statute was uncon- 
 stitutional because it was too broad; that 
 where the manifest intent of the lawmaker 
 is to include things that are unconstitu- 
 tional, the courts will not judicially legis- 
 late and carve out of such broad, sweeping: 
 statutes what they may consider valid. 
 This statute was void in toto. U. S. v. 
 Reese, 92 U. S. 214; Trade Mark Cases, 
 100 U. S. 82 (quoted in 190 U. S. 140- 
 142) ; Cujus est instituere. 
 
 A statute may be void for uncertainty. 
 Suth. Stat. 86, 410, 411; Augustine, 41 
 Tex. Cr. R. 59, 96 Am. St. 765 ; Burks v. 
 Bosso : 217a. 
 
 Omission of the allegation that a state 
 agency was violating the law was fatal 
 to the indictment. It is insufficient to 
 aver that Bowman and others, as indi- 
 viduals, had committed the wrong. The 
 XlVth and XVth amendments interdict 
 state oppression, not that committed by 
 individuals upon their own account. Cruik- 
 shank (an indictment must be specific 
 and certain. Huntsman: 231). 
 
 Under those amendments the indictment 
 must show a wrong committed by a state 
 agency. V. S. v. Harris (1883), 106 U. 
 S. 629, 639 (quoted in 190 U. S. 138). 
 And the particulars — the means — of its 
 commission. Bssential facts must appear 
 to uphold the sentence. Haddock. 
 
 A statement of the wrong must disclose 
 with certainty a wrongdoer within federal 
 jurisdiction. Cruikshank ; James. De 
 non apparentibus, etc. 
 This c-ase well illustrates the importance 
 of construction to the practitioner. He 
 must also know the polity of the federal 
 government as expounded in M'Culloch, 
 Cohens, Martin, Tarble's Case, Cruikshank 
 and James. In this connection it may be 
 well to call attention to technical distinc- 
 tions so often introduced by the federal 
 court, as in U. S. v. Lee, sub, Belknap v. 
 Schild (U. S. officers may be sued, but the 
 government cannot be). See also Rosen: 
 92 (obscene matter cannot be pleaded 
 when relevant) . 
 Federal and state statutes. Sovereignty in 
 America is divided, qualified and compli- 
 cated ; it is distributed among federal 
 and state agencies — the federal and the 
 state governments. Congress has a legis- 
 lative power only in respect to certain 
 subjects enumerated in the federal con- 
 stitution. The state legislatures have a 
 general legislative power within the sev- 
 eral states. These are limited by state 
 constitutions and also further diminished 
 and qualified by the supreme laws of the 
 land (Art. VI. Const, of the United 
 States), which comprise all that is granted 
 the federal government for its enumerated 
 purposes. For these the powers of the 
 federal government are supreme, and they 
 cannot be disparaged or denied by state 
 power ; and this in turn in its rightful 
 
DATUM POSTS. 
 
 129 
 
 Leading Cases. — 233. James. 
 
 domain is equally supreme and cannot be 
 abrogated or obstructed by federal power. 
 Ableman ; Cohens ; Martin ; Tarble's ; 
 Cruiksbank ; James, Cool. Const. Lim. 7- 
 27 ; Donnell, 48 Miss. 661, 12 Am. Rep. 
 375 (constitutional amendments, 13, 14, 
 15, U. S., discussed and Civil Rights Act 
 in Mississippi upheld) ; Suth. Stat. Con- 
 struct. 21 : cases. 
 
 The theory of the federal and the state gov- 
 ernments must be familiar to a practi- 
 tioner. Haddock. A study of the fore- 
 going cases will best impress that fact, 
 and also that the study of procedure is a 
 study of government. Cf. James with TJ. 
 S. v. Hodges, 203 U. S. 1. 
 
 234. R. V. ROWLANDS (1851), 17 Q. 
 B., A. & B. (N. S.) 671, 79 B. C. L. R., 
 2 Den. C. C. 364, 5 Cox, C. C. 466 ; cited 
 and approved in Cruikshank ; Mews' B. C. 
 L. : cases. 
 
 Indictments must be certain. S. P., 
 R. v. Wheatley; s. v. Thurstin; C. v. 
 Eastman ; Moore v. C. : 19-23. 
 
 335. V. S. V. MH.I.S (1833), 7 Pet. 
 138 (8 L. ed. 138) ; 2 Bish. New Crim. 
 Proc. 1002. 
 
 Mills stated: This case, like Cruikshank, 
 was reviewed upon a certificate of division 
 among the judges of the circuit court, be- 
 fore whom was pending a motion in arrest 
 of judgment, for alleged omissions in the 
 indictment. Mills was indicted as an 
 aider and abettor to rob the U. S. Mail — 
 for a conspiracy to rob. It was not 
 averred in a separate count that the rob- 
 bery had actually been committed, but it 
 did appear elsewhere. For such omission 
 it was claimed the indictment was in- 
 sufficient. However, the court held other- 
 wise, and said : 
 
 "The general rule is that, in indictments 
 for misdemeanors created by statute, it is 
 sufficient to charge the offense in the words 
 of the statute. There is not that technical 
 nicety required as to form, which seems 
 to have been adopted and sanctioned by 
 long practice in cases of felony, and with 
 respect to some crimes, where particular 
 words must be used, and no other words, 
 however synonymous they may seem, can 
 be substituted. But in all cases the of- 
 fense must be set forth with clearness 
 and all necessary certainty to apprise the 
 accused of the crime with which he stands 
 charged." R. v. Waters: 70-74. 
 
 It is sufficient to lay the charge in the words 
 of the law. V. 8. v. Gooding: 212. 2 
 Bast, P. C. 781; 2 Leach, C. C. 578. 
 Mills and V. S. v. Cook are widely cited 
 cases upon the sufficiency of an indict- 
 ment. They emphasize the use of plead- 
 ings to apprise a defendant with what he 
 must meet at the trial. Huntsman; Cruik- 
 shank: 231-232. "The iteration and re- 
 iteration of the use of pleadings to ap- 
 prise a defendant" (Guedel : 74a) seems 
 to leave bad the effect to obscure other 
 conserving principles, and Datum Posts. 
 In "American law," these are not made 
 prominent nor are they uniformly re- 
 spected. Dovaston : 217. 
 
 9 
 
 Leading Cases. — 
 
 236. SFRAIGUE v. THOMPSON" 
 
 (1886), 118 U. S. 90 (30 L. ed. 115). 
 Construction. Statutes and other compacts 
 may be valid in part and void in part. 
 Mayor of Valverde, 19 Colo. 104, ,41 Am. 
 St. 208, n. ; Chicago, etc. R. R., 149 111. 
 361, 41 Am. St. 278-304, n. ; Fisher v. 
 McGirr (casus omissus cannot be sup- 
 plied) ; Ut res magis valeat, etc. ; Penni- 
 man's Case, 103 U. S. 714 ; Virginia Cou- 
 pon Cases ; Noel v. P., 187 111. 587, 79 
 Am. St. 238, n. ; Brown v. P., 29 Mich. 
 
 232 ; Suth. Stat. 296-308. 
 
 Statutes void in part. Blake ; Austin v. 
 Tennessee ; Osgood v. R. R. Suth. Stat. 
 169-178 ; Bish. Stat. Crimes, 34 ; Fayette 
 Co., 47 Ohio, 503, 10 L. R. A. A. 196, n. ;. 
 Lawton, 40 Fed. Rep. 480, 7 L. R. A. 55. 
 n. ; McGowan, 111 Cal. 57, 52 Am. St. 149. 
 
 Contracts also may be void in part. Mallan : 
 373 ; Miller v. Race. See Illegal Con- 
 tracts. Or a plea. Rison. Statute must 
 speak for itself. Omissions cannot be in- 
 serted nor can insertions be omitted. 
 Blake (each word must be given effect) ; 
 In re Walker (1895), 110 Cal. 387, 52 
 Am. St. 104. See Casus omissus; James: 
 
 233 (denial of rule) ; Ballentine, 3 Idaho. 
 496, 95 Am. St. 17-28, n. 
 
 Borrowed statutes, how construed. S. 
 v. Moore: 222a, Suth. Stat. 191, 319. See 
 Statute. 
 Constitutions may be void in part. McCar- 
 dle, 66 N. J. Law, 590, 88 Am. St. 496 
 (Ut res magis valeat quam pereat). 
 
 237. CALDEE v. BULK (1798), 3 DalL 
 (Pa.) 386, Myer, Vested Rights, 1, 2 
 Thayer, Const. Cas. 1435 ; stated, 1 Kent, 
 409, Myer, Vested Rights, 1 ; 1 Tucker,. 
 Const. 180, 2 id. 321 {ex post facto law) : 
 cited, Suth. Stat., 3 Pars. Conts. 504, 
 Cool. Const. Lim., Sedgk. Stat, q.v., End. 
 Stat., 3 L. R. A. 181, 5 Crim. Law, Mag. 
 325-528 ; Dash : 237a ; Brown Jurisdic, 
 1 Bish. C. L. 279-284 : cases. 
 
 Ex post facto laws; Nova constitutio futuris- 
 formam imponere debet, non prwteritis : 
 A legislative enactment ought to be pros- 
 pective not retrospective in its operation. 
 Kring, 107 U. S. 221; 3 - Thayer, Const. 
 Cas. 1448 ; Tucker, Const. For history of 
 ex post facto clause in federal constitu- 
 tion, see Medley case, cited, 134 U. S. 160, 
 post. Fletcher v. Peck, cited, Cool. Const. 
 Lim. 320, 327 ; Suth. Stat. Construe. 465- 
 467 ; Larkins, 1 Okla. 53, 11 L. R. A. 
 413, n. ; P. v. Hayes, 140 N. Y. 484, 37 
 Am. St. 572-596, ext. n. ; 23 L. R. A. 
 830 ; Wright, 3 Wyo. 478, 31 Am. St. 94,. 
 n. ; Lindzey, 65 Miss. 542, 7 Am. St. 674 ; 
 S. v. Cooler, 30 S. C. 105, 3 L. R. A. 181, 
 n. ; Gibson v. Mississippi, 162 U. S. 565, 
 590. 
 
 Colder stated: A probate court decreed 
 against the validity of a will, and the 
 time for appeal — a review — expired. Af- 
 terward the legislature convened, and set 
 that decree aside, and ordered a new hear- 
 ing, at which the will was declared valid. 
 From the state courts, the cause was re- 
 
130 
 
 DATUM POSTS. 
 
 Leading Cases. — 237. Galder. 
 
 moved to the supreme court of the United 
 States, and it was there assigned for 
 error, that the act was an ex post facto 
 law. Upon this followed a definition of 
 ex post facto and of retrospective laws. 
 The former relates only to crime, and 
 means that an innocent act can not after- 
 ward be declared a crime, nor can a crim- 
 inal act be augmented or aggravated and 
 added to, after its commission ; nor can 
 the burden of proof be diminished or 
 lessened or changed in favor of the prose- 
 cution after a crime is committed. Calder ; 
 it is stated in Dash. 
 
 Municipal bonds not affected by change 
 of laws. Von Hoffman ; Bronson. 
 The nullity of ex post facto laws. 1 Bish. 
 C. L. 279-284 ; Garvey's Case, 7 Colo. 384, 
 4 Crim. Law Mag. 715. Contracts may 
 be paid in legal-tender medium at the 
 time of maturity. Legal Tender Cases ; 
 Juilliard, 110 U. S. 449. Contra: Gris- 
 wold, 2 Duv. (Ky.) 20, 8 Wall. 303 (19 
 L. ed. 503) ; 2 Thayer, "Const. Cas. 222, 1 
 Hand. Com. Pap., § 98, n. (reviewing 
 Legal Tender Cases), 2 Danl. Nego. Insts., 
 § 1247, n. Note payable in "specie" calls 
 for gold and silver. Trebilcock, 12 Wall. 
 687. 
 Ex post facto laws ; when interdicted to the 
 states, by the XlVth Amendment. Mallet, 
 181 U. S. 589 (stating Calder; Kring). 
 Retrospective statutes. Otoe County, 111 
 U. S. 1 ; cases ; Suth. Stat. Construe. 
 463-483 ; Killam, 39 Pa. St. 120, 1 Am. 
 Law Reg. (N. S.) 18-35, n., Bad. Stat. 
 267-294 ; Bullard, - 10 Mont. 168, 11 L. R. 
 A. 246, n. (congress may impair a con- 
 tract to regulate commerce). See Due 
 Process of Law. State statute changing 
 punishment in the least is ex post facto. 
 Medley (Colorado Case), 134 U. S. 160 
 (33 L. ed. 834, n.). Ex post facto laws 
 and bills of attainder. 5 Crim. Law Mag. 
 325-358 ; 2 Tucker, Const. 656. 
 
 Prisoner may be given an allowance for 
 good behavior. Howard v. U. S., 75 Fed. 
 986, 34 L. _R. A. 509, n. ; Miller, 110 
 Mich. 676, 64 Am. St. 376 (heavier pen- 
 alty for second offense allowable). 
 
 Crimes must be prescribed by previous 
 law. 12 Cyc. 139-144. 
 
 Retrospective decisions are more ob- 
 noxious than are retroactive legislation, 
 for the reason that the judicial depart- 
 ment should not change the laws at all. 
 Sub, Bronson. 
 237a. SASH V. VAN KLEECX (1S11), 
 7 Johns. (N. Y.) 477, 5 Am. Dec. 291 , 
 2 Thayer, Const. Cas. 1498 ; 1 Kent, 291, 
 2 id. 15, Cool. Const. Lim. 24, n. 441 
 447, 6th ed. ; Suth. Stat. ; § 20 in Hughes 
 on contracts. Cited, §§ 56, 17, 28, 52, 76 
 101, 179, 203, 206, 350, 351, 352, Hughes' 
 Proc. 
 Cited, §§ 5, 33, 80, 119, 120, 139, 140, 262, 
 
 266, Gr. & Rud. 
 Departure from usual procedure vitiates. An- 
 thony, 83 Va. 338, 5 Am. St. 277 ; Wind- 
 sor ; Munday ; Hume. 
 
 Leading Cases. — 237a. Dash. 
 
 Retrospective decisions and statutes impair- 
 ing or denying a remedy for any right 
 arising from the principles of the com- 
 mon law, and whether ex delicto or ex 
 contractu in character, are forbidden. 
 Dash ; Bronson ; Von Hoffman ; Tiede. 
 Pol. Power; Terry (defense cannot be 
 taken away). Rights arising from torts 
 are equally protected as contracts. 2 
 Mech.^ Sales, 970. Division of state power. 
 Dash ; Dennett : 145. 
 
 Legislatures cannot impair vested rights; 
 a fortiori, or other state agencies cannot, 
 for reasons involved in the division of 
 state power. They cannot make and un- 
 make laws. But see Hanford : 86. Lex 
 non vetat. Lange : 159. 
 
 Leges posteriores priores contrarias abro- 
 gant: When the provisions of later stat- 
 utes are opposed to those of an earlier, 
 the earlier is considered as repealed. 95 
 Minn. 153, 111 Am. St. 448, 462, ext. a. 
 
 238. BRONSON V. KIT? Z IE (1843) 1 
 How. 311 (11 L. ed. 143) ; Myer, Vested 
 Rights, McClain, Const. Cas. 1028. Nova 
 constitutio futuris formam imponere debet 
 non prwteritis: A legislative enactment 
 ought to be prospective, not retrospective 
 in its operation. Bro. Max. 34-41 ; Dash ; 
 Suth. Stat, q.v.; Cool ; Const. Lim. 346- 
 352; Sedgk. Stat. 613-634; 2 Tucker, 
 Const. 389 ; 1 Cool. Tax. 128 ; Brown, 
 Jurisdic. ; Kirkman, 22 Utah, 100 ; 83 Am. 
 St. 774, 2 Beach, Conts. 1667-1670 ; Suth. 
 Stat. Cited, 520, Hughes' Conts. 
 
 Cited, §§ 179, 305, 334, 351, 352, Hughes' 
 Proc. ; §§ 140, 163, 268, Gr. & Rud. 
 
 Bronson stated: In 1838 K. mortgaged his 
 lands to B. under an existing condition 
 allowing a mortgage to foreclose imme- 
 diately upon a breach of condition and 
 giving the right of absolute sale to satisfy 
 the debt. In 1841 the legislature of Illi- 
 nois enacted laws fettering foreclosure 
 proceedings by giving the mortgagor tone 
 year to redeem, and also providing for an 
 appraisement and that lands must sell 
 for at least two-thirds of the appraise- 
 ment. Afterward B. undertook foreclosure 
 proceedings under the law of 1838, and 
 K. insisted the law of 1841 should govern. 
 Held, that the latter was void. But the 
 time for redemption may be altered or 
 added. 
 
 Rights given by a statute may be abro- 
 gated at any time before final judgment 
 establishing rights thereon. See Repeal. 
 
 Impairing the obligation of a contract a 
 federal question. Chicago R. R. v. Ne- 
 braska, 170 U. S. 57 ; Fletcher v. Peck ; 
 Terre'Haute R. R. v. Indiana (a remedial 
 act defined as flagrantly unconstitutional). 
 Impairing the obligations of contract for- 
 bidden. 1 Cool. Tax. 107-129. 
 
 Limitations on power to change rules of 
 procedure. Burk, 113 la. 232, 86 Am. 
 St. 372, n. See Adjective Law. Windsor. 
 
 Legislatures alone contemplated by consti- 
 tution ; other state agencies may destroy 
 contracts. Hanford : 86 ; Cool. Const. Lim. 
 36, n., 7th ed. 
 
DATUM POSTS. 
 
 131 
 
 Leading Cases. — 238. Bronson. 
 
 Impairing a remedy impairs the obliga- 
 tion of contracts. Von Hoffman ; Bronson ; 
 Louisiana, 102 U. S. 203 (26 L. ed. 132, 
 n. ) : cases. 
 
 Courts may change rules of evidence. This 
 is not impairing the obligation of a con- 
 tract. S. v. Heldenbrand, 62 Neb. 136, 
 89 Am. St. 723, n. ; S. v. Thomas : 257. 
 Still it might, e. g. a deed conclusively 
 imports a consideration. Jackson v. Cleve- 
 land ; Rann : 412. Now, if this rule were 
 changed, then a grantee would be required 
 to ■ obtain more evidence and possibly 
 impossible evidence. The value of a con- 
 tract includes the power to establish or 
 to prove it. A right depends upon a prac- 
 tical remedy, also the remedy contracted 
 for. Gilliam (Mont., 31 L. H. A. 721, ext. 
 j,., 33 L. R. A. 556. 
 
 The doctrine of Bronson is also found 
 in S. v. Sears (1896), 29 Or. 508, 54 Am. 
 St. 808, n. ; 55 Kan. 485 ; 49 Am. St. 
 271; 33 L. R. A. 556; 1 Kent, 419; Cool. 
 Const. Lim. 346-352 ; Sedgk. Stat., 613- 
 634 ; Yeatman, 2 N. Dak. 421, 33 Am. St. 
 797, n. ; Swinburn, if Wash. 611, 61 Am. 
 St. 932, n. 
 
 Ex post facto and retrospective laws are 
 closely allied, yet distinguished. The for- 
 mer is discussed in Calder, 5 Crim. Law 
 Mag. 325-528 ; Dash ; Brown, Jurisdic. ; 1 
 Bish. C. L. 279-284 : cases. Cool. Const. 
 Lim.; Kring v. Missouri (1883), 107 U. 
 S. 221, 2 Thayer, Const. Cas. 1448, § 294, 
 Gr. & Rud. ; Suth. Stat. Construe. 463- 
 483 : eases; Cummings v. Missouri (1866), 
 4 Wall. 277, 2 Thayer, Const. Cas. 1446- 
 1448, n. 
 
 Retrospective decisions and changes of the 
 law denying a remedy, not permissible. 
 Dash; Von Hoffman; P. v. Hayes (1894), 
 140 N. Y. 434, 37 Am. St. 572-596, ext. 
 n., 23 L. R. A. 830, 83 Am. St. 774, n. 
 See Hanford : 86 ; Lange : 159. 
 
 <!ommon-law rights to a remedy are equal to 
 any rights. Pennoyer ; Dash ; S. v. Hel- 
 denbrand (1901), 62 Neb. 136, 89 Am. St. 
 743, n. ; Cruikshank ; 2 Kent, 8, 12, § 54. 
 
 239. VON HOFFMAN V. QTJINCY 
 (1867), 4 Wall. (U. S.) 535-555 (18 L. ed. 
 403), 2 Thayer, Const. Cas. 1654; stated, 
 Cool. Const. Lim. 355, Ror. Interstate 
 Law, 104, 2 Tucker, Const. 829, 839 ; 
 cited, Dill. Corp., Beach, Corp., Bish. Conts. 
 561, 565, Suth. Stat. 206, 471-478, Ror. 
 Interstate Law, 104-115, Bish. Writ. 
 Laws, 197, 1 Kent, 419, n., 2 Beach, 
 Conts. 1668, Cool. Tax., Fost. Fed. Prac. 
 (Mandamus), Brown, Jurisdic. 163. 
 
 Cited, § 179, Hughes' Proc. ; § 140 Gr. & Rud. 
 
 Von Hoffman stated: V. held coupons from 
 bonds issued by the city of Quincy, Illinois, 
 under Acts .of 1851, authorizing local taxa- 
 tion to pay those bonds. Afterward the 
 powers of the city were restricted by other 
 acts, and upon this did not pay. Judgment 
 and mandamus were obtained. (Knox v. 
 Aspinwall). Held: A legislature may bind 
 itself as effectually as a private person. 
 Fletcher v. Peck stated and applied. That 
 .subsequent acts derogating from the power 
 
 Leading Cases. — 239. VonHoff man 
 
 to tax and pay those bonds were nullities. 
 Bronson ; Suth. Stat. Construe. 471-478. 
 States and their corporations must be 
 honest. Von Hoffman. And their credi- 
 tors will be protected by the United States. 
 Von Hoffman; 1 Dill. Corp., 849-854; 2 
 Beach, Corp., 1423. The condition of the 
 debtor is an element of trust, which will 
 be respected and enforced. Von Hoffman ; 
 1 Dill. Corp., 849-854 ; 1 Beach, Corp., 
 435, 473, 1141. Common law and statu- 
 tory incidents annex themselves. Ex- 
 pressio eorum, etc. Von Hoffman, 2 Beach, 
 Pub. Corp., 1412, 1423, Bish. Conts. 565 ; 
 Fawkner, 88 Iowa 169, 45 Am. St. 230. 
 A principal thing carries its incidents. 
 Von Hoffman ; Expressio eorum, etc. ; 
 Logan : 248 ; M'Culloch : 147. 
 
 Statutes in force at time contract is 
 made are incorporated by implication. Von 
 Hoffman; Green v. Biddle (1823), 8 
 Wheat. : 92 ; McCracken, 2 How., 612 ; 
 P. v. Bond, 10 Cal. 570 ; Bronson ; Ogden ; 
 Sturges ; Planter's Bank ; Mason. These 
 and other cases stated and applied. Von 
 Hoffman ; Pom. Const. Law 512-627 iex 
 post facto and retroactive laws) ; Fore- 
 paugh, 128 Pa. 217, 15 Am. St. 672, 5 
 L. R. A. 508-513, ext. n. (rights of prop- 
 erty cannot be changed) . Remedy, a part 
 of the contract. An obligation without 
 a remedy cannot exist. Von Hoffman ; 1 
 Kent, 456 ; Sedgk. Stat., 652 ; Mason v. 
 Haile ; Edwards v. Kearzey. Remedies 
 may be changed, but not the obligation. 
 Von Hoffman ; Ror. Interstate Law, 104 ; 
 Suth. Stat. 471-478 ; Bronson. 
 
 Dissolution of corporation : effect upon 
 liabilities. 1 Beach, Corp., 457 ; 1 Dill. 
 Corp., 170 ; Ror. Int. Law, 107. 
 
 Partition and dissolution of corpora- 
 tions. 1 Beach, Pub. Corp. 436-481. Ret- 
 rospective decisions cannot be made af- 
 fecting contracts. Von Hoffman ; 1 Beach, 
 Pub. Corp., 1412 ; Bronson ; 2 Beach, 
 Conts. 1664. Mandamus after judgment. 
 Von Hoffman ; 2 Beach, Pub. Corp. 1410 ; 
 Knox Co. v. Aspinwall. Corporations sub- 
 ject to legislative control, if no contract 
 is impaired. Von Hoffman ; Lycoming ; 
 Bish. Conts. 565 ; Pom. Const. Law 587, 
 sub, Hill v. Boston. 
 
 240. TERRY v. ANDERSON (1877), 5 
 Otto (U. S.), 628 (24 L. ed. 365), 121 
 N. C. 206, 61 Am. St. 661 ; Turner v. 
 New York (1897), 168 N. Y. 95, 168 
 U. S. 90 ; Ror. Int. Law, 231, 254, 1 Kent, 
 419, n. ; Tucker, Const. Cited, § 351, 
 Hughes' Proc. 
 
 Constitutional law; impairing the obliga- 
 tion of contracts; statute of limitations. 
 These are subject to change or repeal at 
 any time. This is only a part of the 
 remedy and is no part of the contract. 
 Mason ; Bronson ; Culbreth, 121 N. C. 205, 
 61 Am. St. 661; Koshkonong, 104 U. S. 
 668 ; Bell v. Morrison. 
 
 After the statute has accrued it is a vested 
 right and cannot be taken away. Suth. 
 Stat. 480 : cases ; Wilson v. Isininger 
 
 / 
 
132 
 
 DATUM POSTS. 
 
 Leading Oases.— 240. Terry. 
 
 (1901), 186 U. S. 55; Baltimore R. R., 
 158 Ind. 25, 92 Am. St. 293 ; Sedgk. Stat. 
 109 ; Cool. Const. Lim. 448 ; Bicknell, 113 
 V. S. 149, End. Stat. 279. Sub, Whit- 
 coinb v. Whiting; Gilbert, 159 N. Y. 118, 
 45 L. R. A. 118 : cases ; McEldowney, 44 
 W. Va. 711, 45 L. R. A. 600-615, ext. n. 
 See Fletcher v. Peck. 
 
 Statute accruing at the domicile of the par- 
 ties is available elsewhere, and in states 
 where the bar is longer. Bingartner, 103 
 Wis. 373, 74 Am. St. 871. Contra: Ar- 
 lington, 127 N. C. 190, 80 Am. St. 791, n. 
 
 Tested rights cannot be impaired. Suth. 
 Stat. 480 : cases. See Vested Rights, id. 
 Is property the same as tangible things. 
 Suth. Stat. 480. 
 
 341. BARRON V. BALTIMORE 
 
 (1822), 7 Pet. (U. S.) 243 (8 L. ed. 
 673) ; cited, Marsh. Const. Dec. 724-735, 
 n. ; Thayer, Cas. Const. Law, 1 Kent, 407, 
 Cool. Const. Lim., Dill. Corp., Beach, Pub. 
 Corp., Sedgk. Stat., 10 Curt. 464, 1 Thay- 
 er, Const. Cas. 449 ; stated, McClain, 
 Const. Cas. 14, n., g.v. As to the Four- 
 teenth Amendment, and what it means : 
 O'Neil v. Vermont, 144 U. S. 323, Brown, 
 Jurisdic, 2 Tucker, Const. 326-337 (first 
 ten amendments) ; Cruikshank ; 3 Cook, 
 Corp. 2632 ; 1 Cool. Tax. 55 : cases ; 1 
 Lewis, Em. Dom. 11 : cases. 
 
 Cited. §§ 19, 22, 221, 349, Hughes' Proc. ; 
 §§ 64, 152, 158, 159, 268, 294, 297, Gr. 
 & Rud. 
 
 Barron stated: Barron owned a wharf at 
 deepest water, and so it was most valu- 
 able. Artificial streams created by the 
 city carried and deposited detritus near 
 the wharf, and by such means filled up 
 its water approach and made it shallow 
 and thus damaged the wharf. For this 
 B. sued the city, relying upon the Fifth 
 Amendment to the constitution of the 
 United States, which provides that private 
 property shall not be taken or damaged 
 without paying a just compensation there- 
 for. But it was held that this had no 
 application to the states or their agencies, 
 and B. was defeated. 
 
 States only bound where named to be bound 
 in federal constitutions. 2 Kent, 407 ; 
 James : 233, 2 Lewis, Suth. Stat. 514. 
 Roy n'est lie per ascun statute, si il ne 
 soU expressement nosme is applied in Bar- 
 ron ; Lee v. Tillotson (1840), 24 Wend. 
 337, 35 Am. Dec. 624, Tiede. Pol. Power, 
 5 ; 1 Lewis, Em. Dom. : cases. 
 
 The first ten articles of the amendment were 
 not intended to limit the power of the 
 state governments in respect to their own 
 people, but to operate on the national 
 government alone. 15 L. R. A. 601 ; 
 Brown v. Walker, 161 U. S. 591 ; Jack v. 
 Kansas; St. Joseph, 128 Mo. 588, 49 Am. 
 St. 577, 12 Am. R. R. & Corp. Rep. 407 ; 
 Presser, 116 U. S. 252, 260, 265 ; Cook 
 v. V. S., 138 U. S. 181 ; S. v. Atkinson, 
 40 S. C. 363, 42 Am. St. 877, n. ; Withers, 
 20 How. 84, 15 L. ed. 816, n. (Fifth 
 Amend, does not apply to states. Barron) ; 
 62 L R. A. : cases ; Ohio, 194 U. S. 445 ; 
 Cruikshank: 232. 
 
 Leading Cases. — 241. Barron. 
 
 "The Constitution was ordained and estab- 
 lished by the people of the United States 
 for themselves, for their own government, 
 and not for the government of the indi- 
 vidual states. Each State established a. 
 constitution for itself, and in that con- 
 stitution provided such limitations and re- 
 strictions on the powers of its particular 
 government as its judgment dictated." 
 Barron. 
 
 Eminent domain; protection of property 
 from state spoliation is not guaranteed 
 by the federal constitution. It only .pro- 
 tects from wrongs and oppression from, 
 federal power, not state power. Barron; 
 Withers, supra. 
 
 It does not interdict compulsory self- 
 crimination. St. Joseph, supra; Spies 
 (Anarchist's Case) ; Presser. 
 
 General limitations in the constitution 
 do not apply to the states. Wilkerson ; 
 Barron. In other words the states are 
 not bound unless they are named to be 
 bound. 1 Kent, 407 : cases ; 2 Tucker,. 
 Conts. 325 : cases. 
 
 The guaranties of protection and of rights- 
 in the first ten amendments afford no pro- 
 tection whatever, except from federal 
 agencies. They impose no restrictions on 
 the states, e. g., the guaranty of jury 
 trial, etc., applies only to proceedings in 
 federal courts. Eilenbacker, 134 U. S. 31. 
 But the guaranty of "due process of law"' 
 in the XlVth Amendment does apply to 
 the states, for it reads : "No state shall 
 deprive any person within its jurisdiction 
 of life, liberty or property without due 
 process of law," etc. James: 233. This 
 applies to the States, for they are named 
 to be bound. Roy n'est lie per ascun, etc. 
 In this relation arises considerations re- 
 flected from Nullum tempus occurrit regi. 
 
 No more important cases can be introduced 
 to the practitioner than Barron, Cruik- 
 shank, James, Tarble's Case, Martin v. 
 Hunter's Lessees, M'Culloch, Logan, 
 Windsor and Campbell v. Porter. 
 
 242. WORK v. S. (1853), 2 Ohio St. 
 297, 1 Lead. dim. Cas. 482-496, ext. n., 
 59 Am. Dec. 671-677, n., 43 L. R. A. 35. 
 
 Cited, §§ 19, 33, 45, 90, 158, 300, 304, 
 Hughes' Proc. ; §§ 57, 115, 152, 169, 294, 
 Gr. & Rud. 
 
 Jury trials. A jury of twelve is meant in 
 constitutions, unless otherwise expressed. 
 Work; 1 Bish. Cr. Proc. 890-894; Whart. 
 Cr. Pi. & Pr. 605-695 ; Clark, Crim. Proc. 
 158-168 ; Lommen, 65 Minn. 196, 60 Am. 
 St. 450, n. ; Thompson, 170 U. S. 343 (42 
 L. ed. 1061, n.), 190 U. S. 246; Bailey, 
 Jurisdic. 64, And. Die. 582. 
 
 "Jury" in a constitution means a jury of 
 twelve. Words like "jury" and "jurisdic- 
 tion" are given a common-law meaning, 
 of possible. Contemporanea expositio, etc. 
 And thus the common law is favored. 
 Murray Case. Contra, S. v. Kaufman, 51 
 la. 578, 33 Am. Rep. 148, 1 Crim. Law- 
 Mag. 57-64, n. 
 
DATUM POSTS. 
 
 133 
 
 Leading Cases. — 242. Work. 
 
 Number and agreement of, necessary for a 
 valid verdict. S. v. Bates, 14 Utah, 293, 
 43 Li. R. A. 33-81, ext. n. (able resume). 
 
 Contracts affecting the right to judicial trial. 
 Scott. And of personal liberty. Gr. Pub. 
 Pol. 466-477. The safeguards that liberty 
 has thrown around her children cannot 
 be bartered away nor dispensed with. See 
 §§ 14-18, Hughes' Conts. ; Cruikshank. 
 
 Whatever is a subject of waiver is a 
 subject of contract, for the essence of 
 waiver is assent express or implied. This 
 should be comprehended. Cf. Consensus. 
 "Jury" as used in a statute ; how con- 
 strued. Suth. Stat. 423. 
 
 Constitutions are construed in the light of 
 old law. Murray : 219 ; C. v. Hess : 215. 
 If a constitution commands a record, 
 this is construed to mean a bound volume 
 formally made and preserved. Montgom- 
 ery : 47. 
 
 243. WARMN V. SLADE (1871), 23 
 Mich, lj 9 Am. Rep. 70-74. Computation 
 of time; rules. The first and last day. 
 Halbert v. San Saba Springs Ass'n, 89 
 Tex. 230, 49 L. R. A. 193-248, ext. n. ; 
 Citizens' Bank v. Ober (1874), 1 Abb. 
 503; 4 Bank Reg. 156, 10 Am. Law Reg. 
 (N. S.) 36-49, ext. n., 1 Beach, Conts. 
 631-638, 2 Bouv. Die. ; S. v. Michel 
 (1900), 52 La. Ann. 936, 68 Am. St. 
 364-386, n. 
 
 The general rule is, the first day is ex- 
 cluded and the last is included. Warren ; 
 Dutcher, 94 U. S. 553 (states and follows 
 English rule). If the last day is on Sun- 
 day, then the following day is the day of 
 performance. But see Sedgk. Stat. 358. 
 Fractions of a day. See Day ; Bouv. Die. 
 When statutes take effect. Suth. Stat. 
 104-111, 160. Statutory provisions re- 
 quiring official acts directory as to time. 
 Suth. Stat. 448-450. 
 
 •Computing in case of notices. Cool. 
 ' Tax. 829 ; Ricketson : 59. Time fixed for 
 official action ; when mandatory and when 
 directory. Cool. Tax.. 481-489. 
 
 244. COHENS V. VIRGINIA (1821), 6 
 Wheat. 399 (5 L. ed. 257'), Thayer, Const. 
 Cas. 285 (a court is bound by its records). 
 Marshall's Const. Dec. 357-420 ; Tuck. 
 Const. See Dictum ; Houston : 245 ; 
 Horan : 85. 
 
 Cited, p. 34; §§ 10, 13, 17, 18, 19, 20, 28, 
 30, 39, 79,' 87, 95, 98, 100, 124, 173, 
 186a, 210, 213, 234, 241, 251, 260, 268, 
 272, 274, 276, 278, 291, 352, Hughes' Proc. 
 
 Cited, §§ 111, 137, 147, 152, 213, 237, 266, 
 268, 311, Gr. & Rud. See Steaudek. 
 
 Dicta do not bind. Houston; Northern Bk. 
 v. Porter Township, 110 U. S. 610, 615 ; 
 Martin v. Evans; (opinions can neither, 
 augment nor diminish the record proper) ; 
 Commercial Bk., sub, Houston. 
 
 To indicate how opinions are to be con- 
 strued, we quote from U. S. v. Wong Kim, 
 Ark., 169 U. S. 678. Justice Miller in 
 the Slaughter House cases, 16 Wall. 73, 
 used language broader than the record — 
 "the case" before him — and the court re- 
 strained this language in the Wong Case 
 as follows : 
 
 Leading Cases. — 244. Cohens. 
 
 "Mr. Justice Miller, indeed, while discussing 
 the causes which led to the adoption of 
 the 14th Amendment, made this remark : 
 'The phrase, "subject to its jurisdiction," 
 was intended to exclude from its operation 
 children of ministers, consuls, and citizens 
 or subject of foreign states born within 
 the United States.' 16 Wall. 73. This 
 was wholly aside from the question in 
 judgment, and from the course of reason- 
 ing bearing upon that question. It was 
 unsupported by any argument, or by any 
 reference to authorities ; and that it was 
 not formulated with the same care and 
 exactness, as if the case before the court 
 had called for an exact definition of the 
 phrase, is apparent from its classing for- 
 eign ministers and consuls together — 
 whereas it was then well settled law, as 
 has since been recognized in a judgment 
 of this court in which Mr. Justice Miller 
 concurred, that consuls, as such, and un- 
 less expressly invested with a diplomatic 
 character in addition to their ordinary 
 powers, are not considered as intrusted 
 with authority to represent their sovereign 
 in his intercourse with foreign states or 
 to vindicate his prerogatives, or entitled 
 by the law of nations to the privileges 
 and immunities of ambassadors or public 
 ministers, but are subject to the juris- 
 dition, civil and criminal, of the courts of 
 the county in which they reside. 1 Kent, 
 44 ; Story, Conft. Laws, § 48 ; Wheaton, 
 International Law, 8th ed., § 248 ; The 
 Anne (1818), 3 Wheat. 435, 445, 446; 
 Gittings v. Crawford (1838), Taney, 1, 
 10, Res Baiz (1890), 135 U. S. 403, 424. 
 "In weighing a remark uttered under such 
 circumstances, it is well to bear in mind 
 the- often quoted words of Chief Justice 
 Marshall : 'It is a maxim not to be dis- 
 regarded, that general expressions, in 
 every opinion, are to be taken in connec- 
 tion with the case in which those expres- 
 sions are used. If they go beyond the 
 case, they may be respected, but ought not 
 to control the judgment in subsequent suit 
 when the very point is presented for de- 
 cision. The reason of this maxim is ob- 
 vious. The question actually before the 
 court is investigated with care, and con- 
 sidered in its full extent. Other prin- 
 ciples which may serve to illustrate it 
 are considered in their relation to the case 
 decided but their possible bearing on all 
 other cases is seldom completely investi- 
 gated.' Cohens." 
 This language is widely quoted and meets 
 universal acceptance. Wells, Res Adj. 
 581 ; Wadsworth, 18 Colo. 600, 36 Am. St. 
 600, 23 L. R. A. 812, 8 Am. R. R. & Corp. 
 Rep. 127. Johnson v. Bailey (Colo.) ; 
 40 Wis. 190 ; Vhfelder v. Levy, 9 Cal. 
 607, 615, Chapman v. S., 104 Cal. 690, 
 43 Am. St. 158, n. ; Johnson's Est., 98 Cal. 
 531, 21 L. R. A. 380-383 : cases ; Wagner 
 v. Law (1892), 3 Wash. 500, 28 Am. St. 
 56, 59 ; Windsor ; Cool. Const. Lim. 62 ; 
 U. S. v. Wong Kim, Ark. (1899), 169 U. 
 S. 649, 678; Woodruff v. Parham (1869), 
 8 Wall. 123, 9 Am. Law Reg. (N. S.) 25. 
 Cohens but involves a fundamental rule 
 of construction ; Verba generalia restrin- 
 guntur ad habilitatem, etc. 1 Chit. Conts. 
 120-122 ; Contemporanea expositio, etc. 
 
134 
 
 DATUM POSTS. 
 
 Leading Cases. — 244, Cohens. 
 
 Opinions ; how far considered to deter- 
 mine the law of the case. Thompson, 
 168 U. S. 451. 
 Opinions are construed like judgments of 
 inferior courts — like taxation proceedings. 
 An inferior judgment is disregarded, ex- 
 cept for the record from which it arises. 
 Kempe's Lessee : 115 : cases. 
 Pleadings essential to confer jurisdiction and 
 to restrain courts. See Jurisdiction ; 
 Windsor : 1 ; Munday : 79. 
 Courts cannot choose — select their cases and 
 decide whatsoever they will. S. v. Baugh- 
 man : 268 ; Weaver v. Toney : 67. Every 
 sentence of every court of every grade 
 may be inquired into ; and the reality of 
 injured party ; of injury and wrongdoer 
 may always be sought after, and if want- 
 ing, then such fundamental defects may 
 be alleged and proved (Williams v. Eg- 
 gleston : Windsor), especially in all claims 
 for res adjudicata. Cromwell : 26. Un- 
 real, false, sham and ficticious cases may 
 always be shown to be such. Courts 
 cannot rightfully pass on such. S. v. 
 Baughman : 268. Debile, etc. Ultra vires 
 acts are nullities unless they are crimes. 
 A court is bound by its records. Camp- 
 bell : 2 ; Drake, Attach., §§ 86, 87. And 
 this record may always be alleged, proved 
 and held up to limit judgments and de- 
 crees, and a fortiori opinions. 
 
 A judgment reciting or declaring juris- 
 dictional facts is limited by what the rec- 
 ord discloses as to those facts. Oleber- 
 mann, 93 Wis. 669, 57 Am. St. 947, n. 
 See Narrow v. Grogan (111.). 
 To emphasize we quote : 
 "But it is an equally well settled rule in 
 jurisprudence that the jurisdiction of any 
 court exercising jurisdiction over the sub- 
 ject may be inquired into in every other 
 court when the proceedings in the former 
 are to be relied upon, and brought before 
 the latter, by a party claiming the benefit 
 of such proceedings. The rule prevails 
 whether the decree or judgment has been 
 given in a court of admiralty, chancery, 
 ecclesiastical court or court of common 
 law, or whether the point ruled has arisen 
 under the laws of nations, the practices 
 in chancery, or the municipal laws of 
 states." Williamson: 65; Horan : 85. 
 A court is but an agency, of government like 
 the other departments of state; it is co- 
 ordinate with the other departments of 
 state. P. v. Stapleton, 18 Colo. 568. But 
 see Cujus est instituere, etc. 
 
 A court must issue from and be founded 
 upon a constitution and derive all its just 
 powers therefrom. Marbury : 142. 
 Looking from these, no court can make a 
 record, without power to make it. Star- 
 buck: 263; Van Fleet, Coll. Att. f §§ 432, 
 439, 471, 548, 612 ; 1 Whart. Ev. 796, 
 808 ; 123 N. Y. 445, 20 Am. St. 77 ; 
 Mech. Ag. 810. Judicial recitals in a 
 decree may be contradicted. Ferguson : 
 264. A sheriff's return may be im- 
 peached. Hauswirth : 51. A domestic 
 judgment may be impeached. Needham : 
 261 ; Harshey ; Furman : 262. 
 
 Leading Cases. — 244. Cohens. 
 
 A judgment void for want of jurisdiction in 
 any and every form is worthless, and no 
 rights can be built upon it. Freem. Judg. 
 117 ; Van Fleet, Coll. Att 14-16. Debile 
 fundamentum fallit opus. See Coram 
 judice. 
 
 245. HOUSTON V. WILLIAMS (1859), 
 13 Cal. 24, 73 Am. Dec. 565-567, 1 Thay- 
 er, Const. Law, 184 ; Martin v. Evans 
 (opinions of courts depend upon the rec- 
 ord) ; Commercial Bank, . 151 111. 329, 
 Tiede. Pol. Power, 166a; Phcenix Ins. Co. 
 v. Fuller (1898), 53 Neb. 811, 40 L. R. 
 A. 408, 68 Am. St. 637 ; Horan : 85 ; Do- 
 vaston : 217. 
 
 Cited, §§ 19, 98, 251, 288, Hughes' Proc. ; § 
 152, Gr. & Rud. 
 
 246. MARTIN V. HUNTER'S LESSEE 
 (1816), 1 Wheat. (U. S.) 304 (4 L. ed. 
 97), 1 Thayer, Const. Cas. 123, McCIain, 
 Const. Cas. 746-763, Boyd, Const. Cas. 
 616. See Coram, judice. 
 
 Cited, p. 34; §§ 10, 16, 17, 20, 28, 39, 52, 
 76, 124, 177, 186a, 203, 206, 210, 213, 
 268, 271, 278, 291, Hughes' Proc. 
 
 Cited, §§ 33, 46, 47, 80, 137, 147, Gr. & Rud. 
 
 Appellate jurisdiction of supreme court of 
 the United States over state courts. Cohens. 
 
 Proceedings coram judice essential for a sen- 
 tence. Martin. 
 
 Construction .is for the perpetuity of 
 government. Trist : 212; Murray: 219. 
 
 247. TARBLE'S CASE (1871), 13 Wall. 
 (U. S.) 397 (20 L. ed. 597), McCIain, 
 Const. Cas. 43; Robb v. Connolly (1883), 
 111 U. S. 624. Brown, Jurisdic. ; also in 
 Hughes on Contracts. 
 
 Cited, p. 13 ; §§ 17, 20, 34, 210, 213 ; §§ 46, 
 99, 137, Gr. & Rud. 
 
 Polity of federal government affects proced- 
 ure. Martin ; Cohens ; Cruikshank : 232 ; 
 Texas v. White (1868), 7 Wall. (U. S.), 
 700, Boyd, Const. Cas. 552, Siebold, 100 
 U. S. 371, Boyd, Const. Cas. 571. A review 
 in the supreme court of the United States 
 of a state judgment depends upon a record. 
 Campbell : 2. See Pleadings ; Supreme 
 Laws of the Land. 
 
 Justification defenses depend upon a record, 
 and, too, a sufficient record. J'Anson : 
 91 ; Savacool : 164 ; Six Carpenters' ; 
 Howard v. S. ; Rushton. See Springer ; 
 Douglas v. Whiting (omission of a de- 
 fendant's name in an execution vitiates 
 an execution sale). 
 
 An authority must be pleaded is an impor- 
 tant rule of pleading, the significance of 
 which appears from considerations of Res 
 adjudicata and the above cited cases. 
 Hopper ; Buck v. Colbath. See Story. 
 
 M'Culloch : 47, Cohens : 244, Martin : 
 246, and Tarble's case should be collect- 
 ively considered for sound instruction in 
 constitutional law. 
 
 248. NEAGLE'S CASE (NEAGLE, IN 
 RE) (1890), 135 U. S. 1 (34 L. ed. 35), 
 12 Crim. Law Mag. 23-49. Sub, Logan: 
 249. Cited, Hughes' Conts ; § 151, Gr. & 
 Rud. 
 
 A principal thing carries its incidents. The 
 necessity for a judge to proceed and hold 
 court involves the right to defend him. 
 M'Culloch : 142 ; S. v. Townley : 225a. 
 
DATUM POSTS. 
 
 135 
 
 Leading Cases. — 
 
 249. LOGAN v. UNITED STATES 
 
 (1892), 144 U. S. 263 (36 L. ed. 429), 
 12 Sup. Ct. Rep. 61T, Abb. Sel. Cas. Ev. 
 47, Thayer, Cas. Ev. 1072 (partial), 1 
 Thayer, Const. Cas. 343 ; stated. 34 Cent. 
 L. J. 486, and in subsequent federal cases ; 
 cited. Brad. Ev. 72, 350, 1 Fost. Fed. Prac. 
 274 (competency of witnesses). 
 
 Logan stated: The Marlows and others 
 were in the custody of one Johnson, a 
 deputy United States marshal, for larceny 
 in the Indian country within the exclusive 
 jurisdictipn of the United States. Logan 
 and others conspired, combined and con- 
 federated together to mob them (§§ 5508, 
 5509, R. S. U. S. set out in the opinion), 
 and that in furtherance of their con- 
 spiracy and to deprive the Marlows of 
 "due process of law," they waylaid in 
 the night-time the United States marshal 
 while he was traveling with the Marlows 
 in his custody, and with firearms assaulted 
 said prisoners and murdered Epp Marlow 
 while in the custody of the United States 
 marshal. There were several trials of 
 Logan and his confederates, and several 
 of them were acquitted. Owing to this 
 Logan pleaded former jeopardy. However, 
 this plea was denied, and he was finally 
 tried and convicted. 
 
 The surviving Marlows were permitted 
 to testify on behalf of the government, 
 that while they were escaping from the 
 fight, Charles Marlow told his companions 
 he believed Logan was the man at whom 
 he shot and who was shooting at him 
 during the fight. Logan objected to this 
 evidence as declarations made in their ab- 
 sence — as hearsay. But it was admitted 
 as part of the res gestae. Sparf. 
 
 A^ter a conspiracy comes to an end, it is 
 otherwise. Sparf v. U. S. ; 1 Gr. Ev. 233 ; 
 Brown v. U. S„ 150 U. S. 93, 98, U. S. 
 V. Gooding: 202. 
 
 Logan asked for an instruction, that he 
 was not liable under the laws of the 
 United States — it had no jurisdiction of 
 his acts. This was refused, and instead, 
 the court instructed the jury that when 
 a citizen of the United States is in its 
 custody he has a right to a speedy public 
 trial by an impartial jury, according to 
 "due process of law," to humane treat- 
 ment and to protection against violence, 
 etc., to which Logan excepted. This was 
 a pivotal point in the case. In addition, 
 Martin and Spear, witnesses for the gov- 
 ernment, were shown to have been con- 
 victed in other states, and that Spear was 
 afterwards pardoned in Texas. Logan ob- 
 jected to these witnesses — to Spear be- 
 cause a statute of Texas made him in- 
 competent. Out of these facts the case 
 took a wide range, and as to the federal 
 question involved (the instruction given 
 by the trial judge) M'Culloch, Ableman, 
 and their cognate cases were applied with 
 great force in logical detail. Supremacy 
 of the national government in matters 
 of national concern is pronounced and re- 
 
 Leading Cases. — 249. Logan. 
 
 asserted in a masterful and consistent rea- 
 soning, and in line with Marshall's and 
 Taney's great classics. 
 
 The statute of Texas is local in that state. 
 At common law conviction for a felony 
 does not destroy competency of a witness. 
 Federal statutes enumerate grounds of 
 incompetency for conviction (statutes 
 quoted), but these do not include a case 
 like Spear's. 
 
 "The laws of the state in which the court 
 shall be held shall be the rules of the de- 
 cision as to the competency of witnesses 
 in the courts of the United States, in trials 
 of common law, in equity and in ad- 
 miralty. 12 Stat. 598." 
 
 Logan is not only interesting, but most in- 
 structive. It affords a splendid stand- 
 point to view fundamental maxims of con- 
 struction {Bxpressio eorum, etc. ; Cuicun- 
 que aliquis quid, etc.), and also their com- 
 panion pieces, M'Culloch : 142, Ableman 
 and cognate case ; Juilliard, 110 U. S. 421, 
 441, 2 Thayer, Const. Cas. 2255 ; U. S. v. 
 Reese, 92 U. S. 214, 217; Cruikshank ; 
 Strauder, 100 U. S. 303, 1 Thayer, Const. 
 Cas. 543 ; cited, 1 Beach, Pub. Corp. 137, 
 3 Crim. Law Rep. (Hawley), 515; Vir- 
 ginia, 100 U. S. 339 (25 L. ed. 676), 3 
 Crim. Law Rep. (Hawley), 537; U. S. v. 
 Harris, 106 U. S. 629 ; Civil Rights Cases, 
 109 U. S. 3 (27 L. ed. 825), 1 Thayer, 
 Const. Cas. 554; 190 U. S. 137; Yar- 
 brough, 110 U. S. 651 ; U. S. v. Waddell, 
 112 U. S. 78 ; Baldwin, 120 U. S. 678 ; 
 Neagle, Seibold, 100 U. S. 371, 394 ; U. S. 
 v. Perez ; Simmons v. U. S., 142 U. S. 148 
 (former jeopardy). All these cases are 
 cited, and most of them are stated and re- 
 viewed, with others. Quarles, 158 U. S. 
 532-558 (it is the right of a citizen' to 
 inform of violations of law) . Civil Rights 
 Cases, supra; '190 U. S. 137. "Rights, 
 privileges and immunities" (14th Amend, 
 to Constitution of United States) ; mean- 
 ing of. §§ 134-137 ; 1 Beach, Pub. Corp. ; 
 Bartemeyer ; 190 U. S. 133 : cases. 
 
 Accessorium non ducit sed sequitur suum 
 principale : The incident shall pass by the 
 grant of the principal, but not the prin- 
 cipal by the grant of the incident. See 
 Neagle (Cunningham v. Neagle) ; cited, 
 Ror. Interstate Law, 297, 431, 39 Fed. 
 Rep. 833, 5 L. R. A. 78, 1 Thayer, Const. 
 Oas. 355 (federal authority protects fed- 
 eral officials on the way to exercise their 
 functions). Ex- Judge Terry, of Califor- 
 nia, assaulted Justice Field, of the Su- 
 preme Court of the United States, while 
 en route to hold court in California, and 
 United States Marshal Neagle killed Terry. 
 Held, state had no jurisdiction. In prw- 
 sentia majoris cessat potentia minoris; 
 Juilliard (Legal Tender Case), 110 U. S. 
 421, 18 L. ed. 204 (congress may create 
 legal tender in payment of debts as an 
 incident necessary and proper for carry- 
 ing into execution the power vested by the 
 constitution. Field, J., dissenting) ; U. S. 
 v. Waddell, 112 U. S. 76 (claimant of 
 homestead protected by federal govern- 
 ment in establishing his rights to title) ; 
 Baldwin, 120 U. S. 678 (congress, by ap- 
 propriate enactment, protect Chinese resi- 
 dents in the exercise of rights guaranteed 
 them by treaty, but it has nor in §§ 5508, 
 5519, 5536, R. S. U. S.) ; Yarbrough, 110 
 U. S. 651 (congress may protect the elec- 
 
136 
 
 DATUM POSTS. 
 
 Leading Cases. — 249. Logan. 
 
 tive franchise when exercised in the selec- 
 tion of federal officials) ; Strauder (state 
 statute excluding all but white jurors con- 
 flicts with XlVth Amendment) ; Virginia, 
 100 U. S. 339 (sheriff discriminating 
 against negro jurors, liable under federal 
 laws) ; U. S. v. Reese (XlVth Amend- 
 ment founds exercise of power for protec- 
 tion of voters ; rejection of qualified vote 
 must be because of race, color or previous 
 condition of servitude) ; Civil Rights Case 
 (Xllth and XlVth Amendments protect 
 only against state action ; Innkeepers, the- 
 aters and carriers may choose their pa- 
 trons and specially provide for them ; about 
 this federal authority will not interefere ; 
 Bradley, J., dissenting). Cruikshank ; U. S. 
 v. Harris (XlVth Amendment, § 1, ex- 
 cludes state action only ; it does not de- 
 scribe and regulate the conduct of citi- 
 zens to each other) ; James : 233 ; Ten- 
 nessee, 100 U. S. 257, Thayer, Cas. Const. 
 Law, 316 (a United States deputy revenue 
 collector killed one resisting arrest, for 
 violating federal laws. Held, the state 
 had no jurisdiction). Martin: 246; Co- 
 hens ; Osborne, are stated and reviewed ; 
 also § 643, R. S. U. S., under which re- 
 movals are made ; M'Culloch ; Cuicunque 
 aliquis quid, etc. 
 
 Original package cases proceed upon the 
 theory that protection of a principal thing 
 demands protection of its incidents. Crow- 
 ley, 137 U. S. 86; Leisy, 135 U. S. 100; 
 Brown v. Maryland ; Bartemeyer. And 
 assignment of a right carries its remedy. 
 Bronson : 238 ; Edwards v. Kearsey. 
 
 The telegraph is an instrument of commerce, 
 and as such is not subject to state taxa- 
 tion or regulation of telegrams to be de- 
 livered in other states. Ratterman, 127 
 U. S. 411; Western U s Tel., 122 U. S. 
 347. 
 
 Commerce is within federal protection; 
 hence its incidents are protected. Harmon 
 v. Chicago, 147 U. S. 396, 7 Am. R. R. 
 & Corp. Rep. 539-544 ; Gibbons ; Brown v. 
 Maryland ; Norfolk, etc. v. Penn (state 
 cannot tax an instrument of interstate 
 commerce) ; Debs' Case; Penn. v. Wheel- 
 ing Bridge Co. Obstruction* of highways 
 and of commerce and of the mail may be 
 removed by the federal government. Debs' 
 Case. 
 
 The supreme court of the United States 
 is given appellate jurisdiction whenever 
 a federal right, statute, constitution or 
 treaty is drawn in question, irrespective 
 of citizenship. Mathews v. Zane, 4 
 Cranch, 382 ; Williams v. Norris, 12 
 Wheat. 117. 
 
 Crime depends upon a punishment. Quod 
 lex non vetat permittet. What the law 
 does not forbid, it permits, applies here. 
 
 Punishment is an incident of crime, 
 and denying the incident denies the prin- 
 cipal. That it is no contempt of court 
 if no punishment can be inflicted, we 
 elsewhere observe. Expressio eorum, etc. ; 
 Cuicunque aliquis quid, etc. ; Von Hoffman. 
 See Construction. 
 
 Grants carrying incidents; ways of necessity. 
 A grantor selling a parcel of land entirely 
 
 Leading Cases. — 249. Logan. 
 
 surrounded by other lands of his, impliedly 
 gives a right of way over his remaining 
 lands to the parcel sold. Pettengill, 8 
 Allen, 1, 85 Am. Dec. 671-681, n. ; Moak, 
 Torts, 487-501; Grayford v. Moffatt, L. 
 R. 4 Chan. 133 ; 5 Mews' B. C L. 1096 ; 
 Pinnington, 3 Kent, 424, n. 
 
 Assignment of debt carries remedy. Bron- 
 son ; Edwards v. Kearzey ; Expressio 
 eorum, etc. 
 
 Eminent domain. Property need not be 
 actually taken, under constitutions which 
 provide it shall not be taken or damaged. 
 Osborne & Co. v. Missouri, etc., R. R. 
 (1892), 147 U. S. 248 ; Story v. El. R. R. 
 
 Injury to an incident is an injury to the 
 principal thing. Note, 37 L. ed. (U. S.) 
 136. 
 
 Power to construe a contract can defeat it, 
 or impair and destroy an obligation, as 
 we elsewhere point out, in reference to 
 commercial paper. Miller v. Race ; Von 
 Hoffman ; Cujus est instituere, etc. 
 
 "Due process of law" depends upon its in- 
 cidents, equal and uniform law in plead- 
 ings, procedure and evidence. The law of 
 the land depends upon these incidents. 
 Sub, Salus populi suprema lex. Power 
 to construe pleadings, or direct proce- 
 dure, can destroy any right, for the same 
 reason that a right depends upon its rem- 
 edy. Bronson ; Edwards. A right with- 
 out a remedy cannot exist ; it is like a 
 crime without a punishment. Cujus est 
 instituere, etc. 
 
 State power cannot determine the jurisdic- 
 tion of federal courts. Tyler (1893), 149 
 U. S. 164 ; Mexican Central R. R. v. 
 Pinkney, 148 U. S. 194. 
 
 Equity. Jurisdiction of federal courts can- 
 not be ousted by states making the cause 
 of statutory cognizance. Sheffield Fur- 
 nace Co., 149 U. S. 574. 
 
 Due process of law; jurisdiction. Lawless 
 violence done to one in custody of a 
 United States marshal is actionable in 
 federal courts. U. S. v. Shipp, 203 U. S. 
 563 (cites Logan). 
 
 250. BOBEL y. P. (1898), 173 111. 19, 64 
 Am. St. 64-107, ext. n. ; Parkins, 158 N. 
 Y. 306, 70 Am. St. 483 ; Paxton Co., 45 
 Neb. 884, 50 Am. St. 585, 29 L. R. A. 
 853 ; Davis v. S., 7 Md. 151, 61 Am. Dec. 
 331-346, ext. n. ; Nuendorf, 69 N. H. 557, 
 25 Am. Rep. 235-246, n., 1 Kent, 460, 8 
 Crim. Law Mag. 184, Suth. Stat. 76-101, 
 210, 211; Sedgk. Stat. 517-536, Cool. 
 Const. Lim. 169-180 ; Crookston, 79 Minn. 
 283, 78 Am. St. 453-486, ext. n. ; S. v. 
 Sloan, 66 Ark. 575, 74 Am. St. 106, n. 
 (comprehensive titles are valid; legisla- 
 ture is sole judge of what is properly a 
 general or special law) ; 107 Ala. 444, 32 
 L. R. A. 520 ; Boorum, 60 N. J. Law, 197, 
 88 Am. St. 469, n. ; Expressio unius, etc. ; 
 Nigrum nunquam excedere debet rubrum. 
 
 Cited, § 104, Hughes' Proc. § 61, Gr. & Rud. 
 
 Constitutional law; title to statutes must be 
 certain and specific ; requirements of. 
 Bobel : cases. See DeYoe, 140 Cal. 476, 
 98 Am. St. 73. 
 
 Revision and republication of codes; subject 
 
DATUM POSTS. 
 
 137 
 
 Leading Cases. — 250. Bobel. 
 
 of. when sufficiently expressed. Lewis, 
 134 Cal. 291, 86 Am. St. 257-279, ext. 
 n., 55 L. B. A. 838-856, ext. n. ; 98 Am. 
 St. 73. 
 
 351. NOBLE y. D1TBELL (17S9), 3 Term 
 Rep. (D. & E.) 271, Sedgk. Stat. 212-218, 
 5 Mews' E. C. L. 238 ; 2 Wh. Ev. 958 : 
 cases ; Jones, Construe. Conts. 116, End. 
 Stat. 195-357, 362 (that a pound of but- 
 ter shall contain eighteen ounces in a par- 
 ticular town is had ; a universal law can- 
 not receive different interpretations at dif- 
 ferent times). 
 
 Cited, §§ 178a, 180, 289, 293, Hughes' Proc. 
 
 A custom contrary to a statute is bad. 
 Houghton, 194 TJ. S. 89 (positive language 
 controls — Contemporanea, etc., is limited) ; 
 U. S. v. McDaniel, sub, Costs (usage can- 
 not alter the law) ; Governor, 6 Gratt. 
 (Va.) 24, 50 Am. Dec. 95-105, ext. n. ; 
 Maher v. S. ; Feather v. R., 6 B. & S. 
 289, 292 (118 E. C. L. R.) ; stated, Bro. 
 Max. 141. 
 
 Written conditions in a power of attorney 
 cannot be varied by oral evidence. Whart. 
 Ag. 225, stating general rule. 
 
 Practical Construction. Maher : 255. See 
 
 CONSTRUCTION. 
 
 252. P. V. IUBKEB (1870), 55 111. 280, 8 
 Am. Rep. 645. S. P. Oakley: 222. Cited, 
 §§ 160, 304, Hughes' Proc. ; §§ 46, 139, 
 269, 294, Gr. & Rud. 
 
 "The parent has the right to the care, cus- 
 tody and assistance of his child. The duty 
 to maintain and protect it, is a principle 
 of natural law. He may even justify an 
 Assault and battery, in the defense of his 
 children, and uphold them in their law 
 suits. Thus the law recognizes the power 
 of parental affection, and excuses acts 
 which, in the absence of such a relation, 
 would be punished. Another branch of 
 parental duty, strongly inculcated by 
 "writers on natuial law, is the education of 
 children. To aid in the performance of 
 these duties, and inforce obedience, parents 
 have authority over them. The municipal 
 law should not disturb this relation, ex- 
 cept for the strongest reasons. The ease 
 with which it may be disrupted under the 
 laws in question ; the slight evidence re- 
 quired, and the informal mode of pro- 
 cedure, make them conflict with the nat- 
 ural right of the parent. Before any 
 -abridgment of the right, gross misconduct 
 or almost total unfitness on the part of 
 the parent, should be clearly proved. This 
 power is an emanation from God, and ev- 
 ery attempt to infringe upon it, except 
 from dire necessity, should be resisted in 
 all well governed states. In this country, 
 the hope of the child, in respect to its 
 education and future advancement, is 
 mainly dependent upon the father ; for 
 this he struggles and toils through life ; 
 the desire of its accomplishment operating 
 as one of the most powerful incentives to 
 industry and thrift. The violent abrup- 
 tion o£ this relation would not only tend 
 to wither these motives to action, but nec- 
 essarily in time, alienate the father's nat- 
 ural affections." 55 111. 284. 
 
 Limitations of legislative power. Millett ; 
 Taylor: 219a; S. v. Brown, 107 Am. St. 
 798 n. See Police Power ; Constitu- 
 tional Law. Oakley: 222. 
 
 Leading Oases. — 
 
 253. BISON V. FAHK (1865), 24 Ark. 
 161, 87 Am. Dec. 52-65. 
 
 Cited, §§ 5, 273, Hughes' Proc. 
 
 Immoral, blasphemous and unchristian stat- 
 ute valid, if only constitutional. Donahoe, 
 38 Me. 379, 61 Am. Dec. 256, n. ; Bennett, 
 Baldw. 60, 74, 75, No. 1, 319 Fed. Cas. ; 
 S. v. Wrightson (1893), 56 N. J. Law, 
 126, 22 L. R. A. 548, n. ; Suth. Stat. 85: 
 330 ; Cool. Const. Lim. 1 Bish. C. L. 496, 
 497 ; Bish. Stat. Crimes, 40 ; 1 Pom. Eg.. 
 64, n. See Christianity. Trist : 214 ; 
 Oakley : 222 ; Police Power. 
 
 Plea bad in part is bad for whole where 
 plea is entire. Rison ; 1 Chit. PI. 546 ; 
 Bissell: 42; Webb v. Martin (1662), 1 
 Levinz (Eng.), 48. 
 
 Demurrers must not be too broad. See 
 Demuhrer ; Bissell : 42. 
 
 "The rules which prevail in the construction 
 and allowance of a plea in bar, are, 1st. 
 That it is to be construed most strongly 
 against the defendant. (Every presump- 
 tion against the pleader. Dovaston ; Verba 
 fortius, etc. ; 190 U. S. 546.) 2d. That a 
 general plea, if bad in part, is bad tor the 
 whole. An entire contract, if void in part, 
 is in toto. (Spraigue — statute; Mallan — 
 contract; or a plea; Rison.) 3d. That sur- 
 plusage will not in general vitiate." Sur- 
 plusagium non nocet; Utile per inutile, etc. 
 
 354. BLAIR v. EILGLEY (1867), 41 Mo. 
 68, 97 Am. Dec. 248-258, n., And. Am. 
 Law ; Suth. Stat. 21, Cool. Const. Lim. 
 40, 316. 
 
 If a law is constitutional, it is valid, 
 although it is immoral, unjust and against 
 natural justice. Suth. Stat. 85 ; § 5 
 {contra). Conclusions of law; facts must 
 be averred ; they will not be implied. 
 Rushton ; Dovaston ; Rison. 
 
 Federal and state laws; respective spheres 
 of each. Blair.; Calder ; Cummings v. 
 State of Mo. ; Logan : 249 ; Ashby, stated 
 and discussed. 
 
 255. MAHER v. S. (1834), 1 Porter 
 (Ala.) 265, 26 Am. Dec. 379-381. 
 
 Cited, §§ 178a, 289, 293, Hughes' Proc. 
 
 Practical construction. A construction of a 
 statute long acted upon by the people at 
 large will be adopted by the courts, if 
 not in direct contradiction of its terms. 
 Communis error facit jus; Cool. Const. 
 Lim. 81-86, is of great weight. In re 
 State Lands, 18 Colo. 359 ; § 255, Hughes' 
 Proc. 
 
 Custom contrary to statutes bad. Noble, 
 251 ; End. Stat. 357-395. Violation of a 
 trust for two hundred years is no reason 
 for its continuance. Atty. Gen. v. Bris- 
 tol, 2 Jac. & W. 321, End. Stat. 358. Bro. 
 Max. 682. Construction of a statute long 
 acquiesced in will not be disturbed. C. 
 v. Posey (1787), 4 Call (Va.), 109, 2 Am. 
 Dec. 560-564 ; Contemporanea expositio 
 est optima, etc. ; Ita lex scripta est; Suth. 
 Stat. Construe. 308, 310 ; Sedgk. Stat. 212, 
 217 ; End. Stat. 358. Construction de- 
 duced from acts is proper, especially where 
 contract is uncertain ; where the acts done 
 under it supplement and make certain its 
 meaning. 1 Wary. Vend. 121 ; 1 Brandt, 
 
138 
 
 DATUM POSTS. 
 
 Leading Cases. — 255. Maher. 
 
 Sur. 94; Michigan Bank, 28 Vt. 200, 65 
 Am. Dec. 234 ; Cravens, 120 Ind. 6, 16 
 Am. St. 298, n. 
 
 Practical construction to show intent in con- 
 tracts. Destrehan, 45 La. Ann. 290, 40 
 Am. St. 265. 4 Wigm. 2465. Boundaries 
 fixed and acted upon, although variant 
 from calls in a deed, control. Knowles, 
 58 Me. 172, 3 Gray, Cas. Prop. 297 ; 
 Emery, 38 Me. 99, 3 Gray, Cas. Prop. 
 297 ; Heaton ; Falsa demonstration etc. In- 
 tent in a contract controls ; it prevails if 
 ascertainable. Jones, Construe. Conts. 
 21 ; Harper ; Kemble. It may be gathered 
 from a course of dealing, when it oper- 
 ates as an estoppel. Moller. 
 
 General intent overrides ordinary meaning 
 of particular words. Jones, Construe. 
 Conts. 218, 219 ; Smith, Conts. 562 ; Ex 
 antecedentibus, etc. ; Verba generalia re- 
 stringuntur, etc. 
 
 Wo law can be assumed to enter into a con- 
 tract, if it contradicts the express terms 
 of the writing. Jones, Construe. Conts. 
 29. An acre in a contract means the 
 statute acre, and this cannot be contra- 
 dicted. Paull, 4 Watts (Pa.), 402; Sedgk. 
 Stat. 217 ; Noble, 2 Wh. Bv. 958 ; End. 
 Stat. 362. 
 
 Practical construction of a contract by par- 
 ties to it, is of great weight, if it is doubt- 
 ful. Mueller. Res ipsa loquitur; Com- 
 munis error facit jus. Stipulations in con- 
 tracts ; Specialties may be waived. At- 
 lantic Ins., 3 Colo. 224, 227-228 ; or part- 
 nership articles. Byers, 4 Colo. 515, 523 ; 
 conditions in policies. Farmers', etc. Co., 
 2 Colo. App. 265, of specifications of 
 building contracts. Schaefer, 3 Colo. 15, 
 17. If such provisions can be annulled, 
 then why cannot substitutes be made? 
 Are they not made? 
 
 Practical construction of statute to show in- 
 tent. Ramsey, 95 Tex. 614, 93 Am. St. 
 857-881, n. Contemporanea expositio, etc. ; 
 Ames, 111 U. S. 449 (constitution). 
 
 256. P. V. SEYMOUR (1860), 16 Cal. 
 332, 76 Am. Dec. 521-540, ext. n. ; cited. 
 Cool. Tax. Taxation ; assessments ; cura- 
 tive acts ; limitations of statutory power. 
 Cool. Tax. 313-323, 2d ed., 2 Desty, Tax. 
 115-118 ; Meigs, 162 N. Y. 322, 76 Am. 
 St. 322. See Taxation ; Allen v. Jay. 
 
 Retrospective taxation forbidden. 1 Cool. 
 Tax. 492 ; Cool. Const. Lim. 382. Cura- 
 tive acts. 1 Cool. Tax. 510. Curative de- 
 fects in tax proceedings. 1 Cool. Tax, 
 508-545. Steger. Defective assessments 
 and curative acts. Welty, Assess. 230, 
 249 : cases. 
 
 257. S. v. THOMAS (1880), 47 Conn. 
 546, 36 Am. Rep. 98-103, n. ; 1 Ell. Ev. 
 86. Cited, Hughes' Conts. 
 
 Cited, §§ 28, 119, Hughes' Proc. ; § 294. Gr. 
 
 Power of legislature to make certain pre- 
 sumptions conclusive evidence. 1 Cool. 
 Tax. 67, 506-508, 2 id. 1004-1017 : cases. 
 Vega Steamship Co., 75 Minn. 308, 43 L. 
 R. A. 843 ; Meyer, 39 Minn. 438, 1 L. 
 R. A. 177, 12 Am. St. 663. Missouri R. 
 R„ 64 Kan. 802 (due process of law 
 
 Leading Cases. — 257. Thomas. 
 
 opposes) ; P. v. Cannon, 139 N. Y. 32, 
 36 Am. St. 668, 669, ext. n. (statute may 
 make presumptions prima facie guilt) ; 
 P. v. Turner, 117 N. Y. 227, 15 Am. St. 
 498, n. ; 1 Bish. Crim. Proc. 1088-1090 ; 
 Adams v. N. Y. 
 
 Tax titles cannot be made conclusive. Notes, 
 15 Am. St. 508; Larson, 39 Neb. 463; 
 42 Am. St. 595, n. ; Jackson, 7 Cow. 88, 
 17 Am. Dec. 502-514, n., New, Eject. 
 117, 120 ; Dev. Deeds, 1347-1424 (tax 
 deeds) , Cool. Tax. 472, 2d ed. ; 2 Desty, 
 Tax. 136 ; Long, 13 Iowa, 28, 81 Am. 
 Dec. 420, n. ; Hurd, 3 Wash. 1 ; 28 Am. 
 St. 17, n. ; Marx : 126. Question of tax 
 title must show what. 2 Cool. Tax. 1057 ; 
 Welty Assess. 231. 
 
 Burden of proof shifts if defect is pointed 
 out. Notes, 28 Am. St. 21 ; § 119, Hughes' 
 Proc. 
 
 Legislative prescriptions of evidence; limita- 
 tions. S. v. Beach (liability of insolvent 
 banker for receiving deposits), 258. 
 
 Possession of stolen property cannot be 
 made conclusive. Kirby v. U. S. Cr. Rep. 
 330. R. v. Partridge: 190. 
 
 258. S. v. BEACH (1896), 147 Ind. 74, 
 36 L. R. A. 179; 1 Ell. Ev. 86. 
 
 Cited, §§ 147, 269, 294, Gr. & Rud. 
 
 Legislatures may prescribe what shall con- 
 stitute prima facie proof of guilt. Phelps : 
 191 ; Thomas : 257. Meadowcroft v. P. 
 (1896), 163 111. 56, 35 L. R. A. 175; 
 Adams v. N. Y. ; S. v. Thomas, 144 Ala. 
 2 L. R. N. S. 1011-1012 : cases ; 113 
 Am. St. 17-20. 
 
 "Due process of law" proceedings essential; 
 its elements required and protected. Mur- 
 ray : 219 ; Cryps v. Baynton ; Cruikshank : 
 232 (there must be sufficient allegations). 
 
 259. HUNSAKER v. BOBBIN (1855), 5 
 Cal. 288, 63 Am. Dec. 130-132 ; Laws. 
 Conts. 119. 
 
 Cited, §§ 29, 300, 348, Hughes' Proc; §§ 
 63, 64, Gr. & Rud. 
 
 Sovereignty ; right to sue ; cannot be 
 sued against is consent. 
 
 And. Die. : "Suitor" ; Ayers, 123 U. S. 
 443, 505: cases; Russell v. U. S. (1901), 
 182 U. S. 516, Sto. PL 69a, Ans. Conts. 
 104 n., Bish. Conts. 989, Laws., Beach. 
 Pub. Corp. 739-775, n. ; Cool. Const. Lim. 
 17 : cases ; Belknap : 260 ; Carr v. S., 
 127 Ind. 204, 11 L. R. A. 370, n. See 
 Chisholm ; 34 Am. Law. Rev. 689-708 : 
 cases (what is a suit against a state). 
 See Sovereignty. 
 
 Petition of right; procedure. Pering, 2 M. 
 & W. 837, 5 D. P. C. 750, M. & H. 223, 
 8 Rul. Cas. 268, n. 
 
 United States can only be sued by its con- 
 sept. It has not consented to be sued in 
 tort. Overholser, 68 Ohio, 263, 96 Am. 
 St. 658. See Election of Remedies. 
 
 The V. S. can sue a state, but a state 
 can not sue the U. S. Kansas v. U. S., 
 204 U. S. 331. 
 
 260. BELKNAP v. SCHZLD (1896), 161 
 TJ. S. 10. Government as a party to suits. 
 No suit can be maintained or injunction 
 granted against the United States unless 
 
DATUM POSTS. 
 
 139 
 
 Leading Cases. — 260. Belknap. 
 
 expressly permitted by act of congress. 
 Rex non potest peccare. Harlan and 
 Field, JJ. dissenting. See U. S. v. Lee 
 (1882), 106 U. S. 196, stated and ex- 
 plained in Belknap (state must be tech- 
 nically a party — a party on the record 
 to claim the exemption ; the agent or 
 officer of the government may be sued) ; 
 2 Tucker, Const. Law. 783, 791. 
 
 Government as a party to contracts. 
 Laws. Conts. 117-120 ; International Co., 
 194 U. S. 601 (states and explains Bel- 
 knap and Lee cases). 
 
 261. NEEDHAM V. THAYER (1889), 
 147 Mass. 536, 18 N. E. Hep. 429, 7 New 
 Bng. Rep. 159 ; Brown, Jurisdic. 
 
 Cited, p. 15 ; §§ 5, 31, 51, 52, 56, 57, 62, 63, 
 86, 147, 150, 152, 167, Hughes' Proc. ; 
 §§ 13, 18, 70, 108, 240, Gr. & Bud. 
 
 Domestic judgments may be collaterally at- 
 tacked for fraud. Belcher, 53 Cal. 635 ; 
 Starbuck ; Hauswirth ; Ex dolo malo, etc. ; 
 Windsor; Harshey ; Van Fleet, Coll. Att., 
 p. 437 ; Little Rock, etc. Co., 61 Ark. 
 354, 54 Am. St. 448 ; Dobbins, 113 Ind. 
 54, 3 Am. St. 626 ; Merriman, 105 Cal. 
 403, 45 Am. St. 50, 30 L. R. A. 786-802, 
 n. See cases, 31 and 32 L. R. A., and n. ; 
 Furman ; Weeks, Att'ys, 204 ; Bailey, 
 Jurisdic, citing Needham ; Dunham, 162 
 111., 589, 95 L. R. A. 70 (fraud vitiated a 
 judgment) ; Thompson, 18 Wall. 457 ; 
 Hollinger, 138 Ind. 363, 46 Am. St. 402, 
 n., 24 L. R. A. 46 (fraud must be promptly 
 complained of) ; 3 Bncyc. PI. & Pr. 607- 
 632. See Quod ab initio, etc. 
 
 Equitable jurisdiction over judgment. Earl 
 of Oxford's Case (1616), 1 Ch. Rep. 1 
 (13 Jac. 1), 2 Lead. Eq. Cas. (W. & T.) 
 1291-1416, ext. n. ; 21 Bng. Reprint, 485 ; 
 Marine Ins. Co. v. Hodgson (1813), 7 
 Cranch (U. S.), 332, 3 L. ed. 362, Laws. 
 Lead. Cas. Bq. 129 n. ; Kinnier, sub, Han- 
 ford : 86 ; Graver : 603 ; Dimes : 176. Va- 
 cating judgments for fraud is an inherent 
 power of courts, irrespective of statutory 
 power. Furman ; Graver. Judgment rest- 
 ing upon perjury may be set aside. Barr ; 
 Graver. Void judgment will not be en- 
 joined. Camp, 69 Vt. 268, 60 Am. St. 
 929, n. See St. Louis R. R., 138 Mo. 
 533, 60 Am. St. 565, n. 
 
 Fraud vitiates a record for res adjudicata 
 purposes. This is .a leading rule of res 
 adjudicata. See Collateral Attack. 
 Service of process ; defects in. Sanford v. 
 Edwards; McClung, 47 W. Va. 150, 81 
 Am. St. 785, n. 
 
 A judgment is an entirety, and if void in 
 part it is void in toto. Watson, 19 R. I. 
 218, 61 Am. St. 768, n. (process must be 
 served on all defendants) ; Enos, 12 111. 
 255. 
 
 Jurisdiction may be inquired into. Mills : 
 57 ; Starbuck, 176 U. S. 356 : cases ; 
 Thompson ; Windsor ; McElmoyle : 56. 
 
 The first covenants of society have 
 often been overlooked by courts, with 
 respect to their records. But a liberal 
 rule was well introduced in the federal 
 courts in Mills v. McElmoyle, and fully 
 maintained in German, etc., 192 U. S. 
 
 Leading Cases.— 261. Needham. 
 
 125, 128; Andrews, 188 U. S. 14 (S. C. 
 170 Mass. 92, 93) ; also in Oalpin, Penn- 
 oyer, Windsor and Haddock; and similar 
 views are maintained in Ferguson, Fur- 
 man, Needham, Graver. Ex dolo malo, 
 etc. See Res Adjudicata. 
 
 Courts of exclusive jurisdiction are a 
 subject of review. Frobreck, 45 Or. 13, 
 106 Am. St. 634-647. 
 
 262. rUBMAN v. rUBMAN (1897), 153 
 N. Y. 309, 60 Am. St. 629-663, ext. n. ; 
 § 28. Vacating of judgments in further- 
 ance of justice may be after time fixed by 
 statute. Sub, Needham ; Larson, 100 Iowa 
 110, 62 Am. St. 544, n. ; Hauswirth: 51. 
 
 And for negligence of attorney. Peterson,, 
 
 110 Iowa, 19, 80 Am. St. 261-271, ext. 
 n. O'Brien, 139 Cal. 220, 96 Am. St. 105- 
 
 111 n. 
 
 Courts have inherent powers. Sub, Yates* 
 In re j Graver ; Needham ; Dimes ; Kol- 
 
 . lock; Schwam, 179 N. J. 35, 103 Am. 
 St. 382. 
 
 Equitable relief against judgments. Fergu- 
 son ; Hauswirth ;• Needham. 
 
 For perjury. Barr ; Wonderly ; Graver ; 
 Ex dolo malo. 
 
 A void judgment may be set aside at 
 any time, and by the court sua spontc. 
 White, 41 Ore. 324; 93 Am. Dec. 732. 
 
 263. STARBUCK v. MURRAY (1830), 5 
 Wend. 148, 157, 21 Am. Dec. 172-181, u.. 
 Van Fleet, Coll. Att. 432, 1 Wh. Ev. 796, 
 123 N. Y. 445, 20 Am. St. 77, Mech. Ag. 
 810, 2 Sm. Lead. Cas. 801 (side p. 683, 
 7th ed.), 855, 8th ed., Bailey, Jurisdic. 
 §§ 5, 12, 31, 51, 72, 77, 86, 120, 123, 147, 
 152, 167, Hughes' Proc. ; §§ 13, 96, 239, 
 Gr. & Rud. 
 
 A court cannot make a record without au- 
 thority from parties and allegations. 
 Ferguson ; Windsor : 1. Cohens ; Pollard, 
 13 Wis. 569 ; Bailey, Jurisdic. 172, 176 
 U. S. 356. 
 
 Pleadings must present a subject-matter for 
 recovery or of defense. Starbuck ; Mc- 
 Laughlin : 31 ; Eddy Co. : 137 ; R. v. 
 Carlile (1831), 2 Barn. & Adol. 362-369 
 (22 E. C. L. R.), 11 Rul. Cas. 1-16, n. 
 (no allegation can be made against a rec- 
 ord). See Bro. Max. 329, 342. Jurisdic- 
 tional inquiries may be raised at any 
 time. Thormann, 176 U. S. 350 ; Thomp- 
 son v. Whitman ; Needham ; Fabula, etc. ; 
 S. v. Baughman : 248 ; Harrigan v. Gil- 
 christ, sub, Magna Chaeta ; Story. 
 
 264. PEBGUSON V. CRAWFORD (1877), 
 70 N. Y. 253, 26 Am. Rep. 580, 601 ; 
 Rood, Garn. 88, Aid. Jud. Writs, 133, n„ 
 7 Am. St. 714, Bailey, Jurisdic, Mech. Ag. 
 810, Ror. Interstate Law, 143, 1 Wh. Ev. 
 706, 797, 803 ; Reynolds, 30 Kan. 106, 46 
 Am. Rep. 86. 
 
 Cited, p. 16, § 5, Hughes' Proc. ; §§ 13, 70, 
 96, 108, Gr. & Rud. 
 
 Ferguson stated: A mortgagee sought to. 
 foreclose his mortgage. To his claims it 
 was pleaded he was estopped by a plea of 
 res adjudicata, averring that in a prior 
 foreclosure suit to the mortgaged prop- 
 erty he was a defendant, and appeared by 
 his attorney, Mills. No reply was filed to- 
 these allegations. At the trial the record 
 
140 
 
 DATUM POSTS. 
 
 Leading Cases. — 264. Ferguson. 
 
 in the prior suit was offered in evidence 
 to plead the estoppel of record. This 
 record was relied upon as an absolute 
 verity. But the court admitted evidencs 
 showing that Mills did not appear for the 
 mortgagee, and that his written appearance 
 was a forgery ; that the recital in the rec- 
 ord of the appearance was founded upon 
 a forgery. DeMle fundamentum, fallit 
 opus. Upon this record the court con- 
 sulted many authorities and stated much 
 that relates to "due process of law" — 
 Audi. Borden : 267 ; Bloom : 266 ; Star- 
 buck : 263 ; Williamson : 65 and Mills : 57 
 were cited, discussed and approved. Star- 
 buck and Bloom are stated at length. 
 
 Cases holding that the remedy was 
 against the attorney were discussed and 
 distinguished. Denton v. Noyes (1810), 
 6 Johns. 296 (attorney appearing without 
 authority is liable but his record is con- 
 clusive. See Harshey v. Blackmarr) ; 1 
 Smith, Lead. Cas. (Hare & W.) p. 842, 
 marginal page cited. 
 
 -■1 reply to new matters is unnecessary. See 
 Munday : 79 ; Indianapolis, etc. : 223 ; Ita 
 lex, etc. ; Kollock. 
 
 Defenses not pleaded may nevertheless be 
 available. Bridgeport Bank, 28 Conn. 
 557 ; stated and approved, 70 N. Y. 268. 
 
 Defenses need not be anticipated. "One 
 should not jump the stile before he gets 
 to it," p. 269. 
 
 It is well to observe that McParquhar, 
 for whom the false record was made, was 
 not a party to thjs case. Still the court 
 declared his decree of foreclosure a nul- 
 lity. See Williams: 93. 
 
 Equity; attaching for one purpose, attaches 
 for all. Brugger : 162 : cases. Harrigan 
 v. Gilchrist, supra. 
 
 One's right to a full fair bona fide op- 
 portunity to be heard is above interests 
 and rights founded upon fraud. Ex dolo 
 malo non oritur actio. The right to "due 
 process of law" cannot be swept away or 
 defeated by conspiracy and chicane. That 
 guarantee must be first satisfied before 
 rights of purchasers and equity claimants 
 can be defended. Where one of two 
 equally innocent persons must suffer from 
 the fraud of a third, be who first trusted 
 must first suffer. See Audi alteram par- 
 tem: §§ 51-78, Hughes' Proc. 
 
 Recital of jurisdictional facts in a judgment 
 is not conclusive; they may be collater- 
 ally attacked. Ferguson. And by evi- 
 dence aliunde. James, 99 Cal. 374, 37 
 Am. St. 60, n. ; Hauswirth : 51 ; Mastin, 
 19 Kan. 458, 27 Am. Rep. 149 ; Needham : 
 261 ; Belcher ; Santa Clara, 18 Fed. 385, 
 398-406 (Field J.), 13 Am. & Bng. R. R. 
 Cas. 182-247: Ex dolo; "Fraud vitiates 
 all into which it enters" ; Audi; King- 
 ston's Case ; Dennett : 145. See Due Pro- 
 cess of Law : Cool. Const. Lim. 27 : cases. 
 They are only prima facie true. Bicker- 
 dike, 157 111. 95., 29 L. R. A. 782, 2 
 Encyc. PI. & Pr. 596 ; Bailey, Jurisdic. 172. 
 
 Leading Cases. — 264. Ferguson. 
 
 Presumptions from judgments. Omnia 
 prwsumuntur rite, etc. : Van Fleet, Coll. 
 Att. Judg. 805-857 ; Arthur, 15 Colo. 147, 
 22 Am. St. 381, n., 10 L. R. A. 603; 
 Adams, 95 Mo. 501, 6 Am. St. 74, n. ; 
 Freem. Judg. 124 ; Kent, 262, n. ; Eichofl! 
 107 Cal. 42, 48 Am. St. 110; Hahn v. 
 Kelly (liberal rule), 101 St. 993-998. 
 
 The whole record will be inspected and 
 jurisdictional recitals will be limited by 
 other parts of the record. Laney, 105 
 Mo. 355, 24 Am. St. 391; Adams v. 
 Cowles, supra; Verba generalia restringun- 
 tur, etc. ; Bailey, Jurisdic. 185. Judg- 
 ments and judicial records. 1 Wh. Ev. 
 758-841 ; Kingston's Case ; Consensus, 
 etc. ; Bailey, Jurisdic. 136-286. 
 
 A judgment establishes a right, and not 
 the facts upon which it is founded. Crom- 
 well : 26 ; Aspden ; Wright : 28. See Voor- 
 hees : 119. 
 
 A judgment or decree to be affected by 
 loose file papers, either disputed or sus- 
 tained by them, has many objections. If 
 they contradict the decree and they are 
 lost then the invalid or uncertain decree 
 may be validated or made certain. Verba 
 relata hoc maxime, etc. Decrees may 
 contain surplusage. Utile per inutile, etc. 
 
 Clerks* unnecessary recitals are surplusage. 
 Hobbs v. S. (1892), 133 Ind. 404, 18 L. 
 R. A. 774. Presumptions from recitals in 
 judgments as to service of process. Aid. 
 Jud. Writs, 131-140. Judicial recital of 
 facts is not conclusive. See Dictum. 
 
 Parties only can create and present 
 jurisdictional facts and issues authorizing 
 judicial power to act. Starbuck : 263 ; 
 Windsor : 1. Not even consent can confer 
 jurisdiction of subject-matter. Cooper v. 
 Reynolds. See Division of State Poweb ; 
 De non apparentibus, etc. 
 
 Equitable relief from judgments. Har- 
 shey ; Dimes : 176 : Needham : 261 ; Haus- 
 wirth : 61 ; Hayne Appeal, 337-342 ; Ex 
 dolo malo, etc. ; Crown. 
 
 265. BARB v. POST (1900). 59 Neb. 361, 
 80 N. W. 1041, 80 Am. St. 680. 
 
 Cited, §§ 5, 42, 52, 86, 147, Hughes' Proc. 
 
 Perjury is a ground for vacating a judgment 
 founded upon it. Secord, 61 Neb. 615, 87 
 Am. St. 474, n. ; Munro, 55 Neb. 75, 70 
 Am. St. 366 ; Graver : 103 : cases. Con- 
 tra: Pico, 91 Cal. 129, 25 Am. St. 159- 
 171, ext. n., 13 L. R. A. 336-340, n. ; 
 Green, 2 Gray, 361, 61 Am. Dec. 454, n. ; 
 U. S. v. Throckmorton, 98 U. S. 61, 25 
 L. ed. 93 ; Camp, 69 Vt. 286, 60 Am. St. 
 929, n. ; Graver. 
 
 It is a ground for granting a new trial. 
 Fabrilius v. Cook (1765), 3 Burr. (Eng.) 
 1771 ; stated, 25 Am. St. 166 : contra 
 cases ; 11 Mews' E. C. L. 510 ; Freem. 
 Judg. 489 : cases, 4th ed. 
 
 Relief from judgments. See Needham ; 19 
 Am. Dec. 603-612 ; 23 Am. St. 104-119 
 (what is collateral attack upon judgment). 
 
 aee. bloom v. bubdick (1841), i Hill 
 
 (N. Y.), 130-143, 37 Am. Dec. 299, 79 
 Am. St. Rep. 82 800 ; Brown, Jurisdic, 
 
DATUM POSTS. 
 
 141 
 
 Leading Cases. — 266. Bloom. 
 
 Bailey, Jurisdic. ; Van Fleet, Coll. Att. ; 
 Suth. Stat. ; Stated, 1 Sm. Lead. Cas. 835, 
 5th ed., id. 1014, 6th ed., 1119, 7th ed., 
 1131, 8th ed., 2 Sm. Lead. Cas. 1019, 
 9th ed. ; cited, Mech. Ag. 585, Wap. At- 
 tach. 276, 314, 330, Wap. Proceed. In 
 Rem, 1 Wh. Ev. 63, note, Crepps, 1 Sm. 
 Lead. Cas. 2 Kent, 426 ; Freem. Judg. 
 Cited, §§ 20, 51, 58, 70, 72, 88, 120, 130, 
 133, 143, 158, 179, 180, 186, 261, Hughes' 
 Proc. 
 Jurisdiction; elements. See Audi. Superior 
 and inferior courts ; distinctions. Bates : 
 225; Harrigan v. Gilchrist (Wis.), supra; 
 Jurisdiction. 
 Statutory authority by which a man may 
 be deprived of his estate, must be strictly 
 pursued, and exactly as an agent must act 
 within the "scope of the agency," the 
 "range of the business," and according 
 to the authority conferred to transact 
 the particular act. Ransom : 122 : cases ; 
 Thatcher ; Deputron. 
 Jurisdictional facts will not be presumed 
 nor supplied by intendment; they must 
 affirmatively appear. Cruikshank : 232 ; 
 Hannah : 128. The presumption of regu- 
 larity will not supply them. Dovaston : 217. 
 
 If an account is presented its effect is 
 not destroyed by calling it an inventory. 
 Falsa demonstrate ; Ut res magis valeat, 
 etc. ; Prwsentia corporis. 
 
 One document may answer the double 
 purpose of an account and an inventory ; 
 and an inventory made and presented at 
 the time the petition for an order of sale 
 is filed, may be treated as an account 
 and give the court jurisdiction to the same 
 «xtent as a separate account containing 
 the same matter. Liberal construction 
 is applied to uphold the proceeding. 
 
 Description of land in an order of sale, 
 as "ninety-one acres of the south-west 
 <sorner of lot number eleven," is not fa- 
 tally defective if the intestate owned that 
 number of acres and no more in the lot 
 named. Certum est quod certum reddi 
 potest; Ut res magis valeat quam pereat, 
 was most liberally applied. Bloom. 
 
 A surrogate court is of inferior juris- 
 . -diction — a mere creature of the statute. 
 Persons claiming under Its orders must 
 show affirmatively that it obtained juris- 
 diction to make them by pursuing the 
 forms prescribed by statute. Harvey : 123 ; 
 Mohr: 68. 
 Record must show jurisdictional facts in 
 statutory proceedings. Gardner, 100 Mo. 
 269, 18 Am. St. 548, n., Wap. Attach. 
 330, Wap. Proced. In Rem, 571-572. 
 Notice of proceedings essential. Pennoyer : 
 58 ; Audi, etc. ; Borden ; Cooper v. Rey- 
 nolds ; Crepps : 43 ; notes, Smith, Lead. 
 Cas., supra. Notice of appearance in- 
 dispensable. 2 Smith, Lead. Cas. 955, 8th 
 ed., 801 (side p. 683), 7th ed. 
 
 Court exercising statutory powers and 
 jurisdictional facts appearing to be ab- 
 sent, its proceedings are void. Bloom ; 
 Galpin: 63, 64; Dorrance, 67 Conn. 1, 
 52 Am. St. 266, n. (sale of a defendant's 
 
 Leading Cases. — 266. Bloom. 
 
 estate) ; Mohr : 68 ; 2 Smith Lead. Cas. 
 1019, 9th ed. 
 
 267. BORDEN T. FITCH (1818), 15 
 Johns. (N. Y.) 121, 8 Am. Dec. 225 ; 
 stated, Brown, Jurisdic, Bailey, Jurisdic, 
 2 Kent, 109, 261, Savacool ; cited, Mech. 
 Ag. 585, Bigl. L. C. Torts, 345, Bigl. 
 Fraud, 178, 1 Wh. Ev. 795, Wap. Attach., 
 Cool. Const. 27, 495, notes, Crepps, 1 Sm. 
 L. C. q.v.. Black, Freem. Judg. 
 
 Cited, §§ 5, 12, 22, 29, 51, 52, 58, 72, 77, 
 86, 120, 123, 147, Hughes' Proc. ; §§ 13, 
 96, 220, 268, Gr. & Rud. 
 
 A divorce obtained against a non resident 
 wife, not personally served with process, 
 but only by publication, is void. Borden ; 
 Ex dolo malo, etc ; Needham ; Pennoyer ; 
 2 Kent, 109 ; Haddock. 
 
 Statutory proceedings; record must show 
 jurisdictional facts. Ricketson : 59 ; 
 Crepps ; Bloom ; Piper : 114 ; Audi, etc. 
 
 Notice is essential for validity of judicial 
 proceedings. Notes, Crepps, 1 Smith, L. 
 C. 835, 5th ed., id. 1014, 6th ed., 1119, 
 7th ed., 1131, 8th ed. Audi is ably ar- 
 gued at those pages. Windsor : 1 ; Pen- 
 noyer : 58. 
 
 False and sham allegations inducing a judg- 
 ment or decree vitiates it. Borden ; 
 Graver ; Wonderly. Cf. Rensberger v. 
 Britton, 31 Colo. 77-89 (a sham plea of 
 res adjudicata upheld and considered). 
 Fabula; S. v. Baughman : 268 ; Haddock. 
 Jurisdiction ; its elements ; sister state 
 judgments. Mills: 57. See Jurisdiction. 
 
 868. S. v. BAUGHMAN (1882). 38 Ohio 
 St. 455, 459. Cited, p. 11, §§ 5, 13, 19, 
 21, 28, 34, 35, 42, 45, 51, 90, 92, 100, 
 120, 123, 133, 141, 155, 203, 204, 276, 
 278, 329, 349, 353, Hughes' Proc ; §5 
 70, 93, 115, 119, 122, 152, 157, 292, Gr. 
 & Rud. 
 
 Fictitious cases do not bind. Ex facto ori- 
 tur jus; Ex dolo malo non oritur actio; 
 Watkins v. S. ; S. v. Conkling ; Wonderly : 
 102; Graver: 103. 
 
 "A case is never concluded against a judge," 
 in divorce law. See Marriage (connivance 
 at divorce) ; Bro. Max. 329, n., 342 ; Aus- 
 tin R. R. 
 
 Parties and allegations essential for a sen- 
 tence. Williams v. Eggleston : 94 ; De 
 non apparentibus, etc. ; Campbell v. Por- 
 ter ; Fabula, etc. See Story. 
 
 "A judgment or sentence is a judicial de- 
 termination of a cause agitated between 
 real parties ; upon which a real interest 
 has been settled. In order to make a 
 real sentence, there must be a real in- 
 terest, a real argument, a real prosecu- 
 tion a real defense, a real decision. Of all 
 these requisites, not one takes place in 
 the case of a fraudulent and collusive 
 suit; there is no judge, but a person in- 
 vested with the ensigns of a judicial office 
 is misemployed in listening to a fictitious 
 cause proposed to him ; there is no party 
 litigating, there is no party defendant, no 
 real interest brought into question." 
 
 Argument in Kingston's Case, 20 How. 
 St. Tr. 478, 479 ; adopted by Lord Broug- 
 ham in Bandon v. Becher (1835), 3 CI. 
 & Fin. 510, 6 Eng. R. 1517 (instructive 
 case) ; Bro. Max. 329, n. 
 
142 
 
 DATUM POSTS. 
 
 Leading Cases. — 268. Baughman. 
 
 Courts are not concluded by fictitious suits. 
 Wonderly ; Graver : cases. Collectively 
 consider the Bandon, Beaumont, Seabury, 
 and White v. Bluett Cases. There are 
 limits of jurisdiction ; which can only 
 attach to real bona fide matter. Fabula 
 non judicium. See Jurisdiction ; due 
 process of law requirements require essen- 
 tial ingredients. Audi ; Murray ; Taylor : 
 -219a. 
 
 Replying to a sham and mythical plea 
 of res adjudicata cures objection to it. 
 Rensberger v. Britton (1903), 31 Colo. 
 77-89. 
 
 268a. WELTMER v. BISHOP (1902), 
 171 Mo. 110, 65 L. R. A. 584. Cited, 
 §§ 13, 15, 22, 27, 30, 42, 87, 121, 156, 
 349, 353, Hughes' Proc. ; §§ 52, 70, 95, 
 100, 119, 122, 157, 169, 225, 237, 241, 
 253, 268, 292, 309, Gr. & Rud. 
 
 Judicial notice. Courts are not required 
 to give credence to testimony that would 
 falsify well known laws of nature. 
 
 "The business of pretending to heal absent 
 patients by supernatural powers without 
 medicine or surgery is fraudulent and not 
 protected by the law against libel, al- 
 though many persons claim to have been 
 benefited by the treatment." Seabury : 
 281 ; Fabula, etc. 
 
 The subject-matter merging in a judgment 
 may afterward be inquired into . to see if 
 it was such as should have been considered 
 or adjudicated. Andrews v. Andrews : 
 cases (citing McBlmoyle) ; Wonderly; S. 
 v. Baughman : 268 ; Beaumont : 367 ; R. 
 v. Wheatley : 19 : cases. See Subject- 
 Matter. To illustrate, if a claimant 
 stated he was the original author of the 
 Ten Commandments, or the Lord's Prayer, 
 or Magna Charta, or the Declaration of 
 American Independence, and that a de- 
 fendant had pirated them, the admission 
 of such allegations by the latter, thereby 
 permitting a judgment thereon, would not 
 foreclose inquiry into the merits of the 
 controversy. If such a judgment was set 
 up to estop persons in privity with the 
 above confessing defendant, they would 
 have the right to show there was no real 
 or bona fide controversy or subject-matter. 
 See In pari delicto, etc. In this connec- 
 tion it seems instructive to observe that 
 an amicus curiae might properly advise 
 the court of such a proceeding ; it is his 
 duty to do so. Lawyers are not supposed 
 to view with serenity the degradation of 
 jurisprudence, and the degenerate exer- 
 cise of state power for the establishment 
 of absurd mockeries. Lange : 159 ; Won- 
 derly : 102 ; S. v. Baughman : 268 ; Fa- 
 bula non judicium. See Rensberger ; 
 Texas R. R. v. Humble. For such needs 
 of protection pleadings must be required. 
 They cannot be waived. 
 
 Frustra legis auxilium invocat, qui in 
 legem committit: "He seeks the aid of 
 the law in vain who offends against it." 
 He must come into court with clean 
 hands. 
 
 Obviously false and impossible things are 
 
 Leading Cases. — 268a. Weltmer. 
 
 not to be countenanced and enforced as 
 valid merely because some one happened 
 to swear to them or to admit or confess 
 them. Prcesentia Corporis. 
 
 269. WATKINS v. S. (1879), 68 Ind. 427, 
 34 Am. Rep. 273-276,. Bish. C. L. 1010. 
 
 Cited, §§ 120, 123, 136, 150, 156, 353, 
 Hughes* Proc. 
 
 One cannot prosecute himself. A real party 
 in interest essential. One committing a 
 crime cannot complain against himself 
 and be fined anything less than a maxi- 
 mum fine, and plead such a proceeding 
 against a real prosecution. Watkins. 
 Fraud vitiates a prosecution. 3 Gr. Ev. 
 38 ; Ex dolo malo, etc. ; Nemo cogit in 
 seipsum : No man acts against himself. 
 Bro. Max. 216. Nemo debet esse judex. 
 Fraud cannot become the basis of any 
 advantage. Ex dolo malo, etc. ; Collins 
 v. Blantern ; Wonderly. See Res adjudi- 
 cata. 
 
 270. CALIFORNIA V. SAN PABLO B. B. 
 (1893), 149 U. S. 308, 37 L. ed. 747: 
 cases. 
 
 Cited, §§ 15, 21, 122, 147, Hughes' Proc. 
 
 Dead issues will not be considered on ap- 
 peal. Courts will only act where there 
 are parties and allegations or issues and 
 a real controversy existing. Graver ; 
 Bro. Max. 329, n. ; Elgin, 106 U. S. 578. 
 Causes must be real and bona fide; and 
 they must appear from allegations. Camp- 
 bell : 2 ; Harrigan, sub, Magna Charta. 
 Cause op Action. 
 
 Courts are created to protect injured per- 
 sons only. They will neither make nor 
 declare disputes, and pass upon these — 
 they have no such power ; nor will they 
 allow false, sham and fictitious pleadings. 
 Graver : 103 : cases ; Moffatt, 112 U. S- 
 24 ; P. v. McCumber : 110 ; Cohens : 244. 
 
 One cannot appeal from a discharged judg- 
 ment. S. v. Conkling, 54 Kan. 108, 45 
 Am. St. 270-274, n. : cases ; American 
 Book Co. 
 
 Actual controversies only decided. Floyd, 
 24 Colo. 489 ; Bro. Max. 329, n., 339 ; 
 Wonderly : 102 ; Fabula. 
 
 One cannot prosecute himself. Watkins v. S. 
 
 Fraud vitiates a prosecution. 3 Gr. Ev. 38. 
 Ex dolo malo ; Bro. Max. 216. Fraud 
 cannot become the basis of any right or 
 advantage. Fabula. 
 
 271. S. V. CROTEAU (1849), 23 Vt. 14, 
 1 Lead. Crim. Cas. (B. & H.) 363-433, 64 
 Am. Dec. 90-119, n. ; S. v. Burpee (1892), 
 63 Vt. 1-34, 36 Am. St. 775-802, 19 L. 
 R. A. 143-157, n., 9 Am. Cr. Rep. 536- 
 562 (overrules S. v. Croteau), 156 U. S. 
 86 ; stated, 156 V. S. 72, 19 L. R. A. 145 ; 
 cited, Cool. Const. Lim. 396, 2 Thomp. 
 Tri. 2140-2149, 1 Bish. Crim. Proc. 452, 
 461 (joinder of misdemeanors) ; id. 982b, 
 Clark, Crim. Proc. 174-176. 
 
 Cited, §§ 39, 41, 67, 89, 90, 99, 126, 
 Hughes' Proc; §§ 57, 63, 169, 170, 278, 
 294, Gr. & Rud. 
 
 Juries; province of, in criminal cases. In 
 criminal cases juries try causes. A judge 
 cannot direct a verdict. U. S. v. Taylor 
 (1882), 11 Fed. 470, 3 Crim. Law Mag. 
 552. See U. S. v. Wilson (1830), 1 
 
DATUM POSTS. 
 
 143 
 
 Leading Cases. — 271. Croteau. 
 
 Baldwin, 78-100 ; stated. Cool. Const. Lim. 
 397; U. S. v. Morris (1851), 1 Curtis, 
 C. C. Rep. 23, Gt. Opin. Gt. Judges, 551, 
 136 U. S. 65-75, 2 Am. Law Reg. 348 ; 
 §39, Magna Charta ; Schnier v. P. (1859), 
 23 III. 17, 25, 26 (aff'g S. v. Croteau) ; 
 R. v. Audley (1631), 3 How. (Cobb.) St. 
 Tri. 402. Xparf v. U. 8. (1895), 156 
 U. S. 51-183, 39 L. ed. 343-389, 10 Am. 
 Cr. Rep. 168-227 (judge cannot direct 
 jury to convict of crime ; one can only be 
 tried by a jury of bis peers. Magna 
 Chabta.) Tbis is an exbaustive case and 
 reviews tbe English and American cases ; 
 cited, §§ 39, 41, 89, 99, 126, Hugbes' 
 Proc. ; §§ 63, 170, 278, 294, Gr. & Rud. 
 R. v. Parish (1837), 8 Car. & P. 94 (34 
 B. C. L. R.) ; stated, 156 U. S. 96 (jury 
 can only pass on facts in criminal cases) ; 
 Parmiter, 6 Mees & Wels. 105, 106 (libel 
 case; same rule) ; Kane v. C. (1879), 89 
 Pa. 522, 1 Crim. Law Mag. 4757, n., 33 
 Am. Rep. 787-792 ; R. v. Dean of St. 
 Asaph (1784), reported in note (1793), 
 3 T. R. 428. stated in Croteau, Burpee and 
 Sparf cases, 156 U. S. 77, 10 Am. Crim. 
 Rep. 196. 
 
 From all standpoints save one, but a 
 dogma is involved in these extended dis- 
 cussions. The principle involved is only 
 important in trial procedure ; for it is 
 necessary to comprehend ■ how tbe court 
 and bow the jury function shall be ad- 
 dressed, and to what extent the court 
 may regulate the conduct of the trial and 
 enforce its ideas of decorum. In all 
 other particulars the results are the same. 
 For, whatever the court may instruct or 
 wish, if the jury acquits, that ends the 
 case. Directing an acquittal. 1 Bisb. 
 Crim. Proc. 977. 
 
 Misdemeanors; distinct transactions may be 
 joined, but not felonies. S. v. Croteau ; 1 
 Bish. Cr. Proc. 452, 461; Ben, 22 Ala. 
 9, 53 Am. Dec. 234-250, ext. n. ; C. v. 
 Shutte (1889), 130 Pa. 272, 17 Am. St. 
 773, n. ; Hunter, 79 Pa. 503, 3 Cent. L. J. 
 129' (Pa. rule); Brugger : 161 (same 
 rationale under codes) ; 65 Am. St. 484, 
 485, Bliss, PI. 116 ; 71 Am. St. 213, n. ; 
 R. v. Castro. 
 
 Evidence of distinct misdemeanors may be 
 given if within the statute of limitations. 
 S. v. Croteau. A verdict of acquittal bars 
 the crown. R. v. Duncan, post. New 
 trials not given tbe prosecution in crim- 
 inal cases. S. v. Croteau. 
 
 Bills of exceptions will not lie in be- 
 half of the state in criminal cases, because 
 of former jeopardy guarantee. S. v. Cro- 
 teau ; P. v. Corning ; C. v. Cummings ; 
 R. v. Duncan, post. 
 
 In civil cases. Chicago R. R., 52 III. 296 ; 
 Walker, 52 111. 347, 351. See Ad qum&tio- 
 nem facti, etc. ; Max. : 4 ; §§ 89-103, 
 Hughes' Proc. ; for rule in civil cases. 
 Neilson (courts must construe contracts). 
 Constitutional right of. Steck v. Colo, 
 etc.; S. v. Whit (1858), 5 Jones Law 
 (N. C), 224, 72 Am. Dec. 533-549, ext. n. 
 
 Beading law reports to jury. S. v. Whit 
 (judge and jury; domain of each) ; Askew 
 v. S. 94 Ala. 4, 33 Am. St. 83, n. ; S. v. 
 
 Leading Cases. — 271. Croteau. 
 
 Whitmore, 53 Kan. 343, 42 Am. St. 288- 
 295, ext. n. (permissible). 
 
 New trial after a conviction for felony is 
 permissible. C. v. Green (1822), 17 
 Mass. 565, 1 Lead. Crim. Cas. (B. & H.) 
 554-592; 1 Bisb. C. L. 110, 972, 998, 
 1003, Whart. Bv. 398. 
 
 Separation of jury; when this operates as 
 an acquittal. R. v. Woolf (1819), 1 Chit. 
 410 (18 B. C. L. R.), 2 Barn. & Aid. 462, 
 1 Lead. Crim. Cas. (B. & H.) 496-512; 
 Thompson, 155 U. S. 271 ; Van Fleet, For. 
 Adj. 641-658. 
 
 Only a convicted person can appeal and seek 
 a review; the crown, state or prosecution 
 cannot. C. V. Cummings (1849), 3 Cush. 
 (Mass.) 212, 1 Lead. Crim. Cas. (B. & IT.) 
 604-612, 50 Am. Dec. 732, 1 Bisb. C. L. 
 992. P. v. Corning (1848), 2 N. Y. (2 
 Comstock) 9, 1 Lead. Crim. Cas. 599-612, 
 n., 49 A.m. Dec. 364-369, 19 L. R. A. 342 ; 
 1 Bish. C. L. 1022, 1024; S. v. Cox 
 (1877), 67 Mo. 46, 3 Crim. Law Rep. 
 (Hawley), 350; P. Miner, 144 111. 308, 19 
 L. R. A. 342-348, n. ; S. v. Lee (1894), 
 65 Conn. 265, 48 Am. St. 202-215, n. 
 
 B. v. Duncan (1881), 7 Q. B. Div. 198, 
 14 Cox, C. C. 571 : cases. B. v. Scaife 
 (1851), 17 Q. B. (A. & E., N. S.) 238, 
 79 B. C. L. R., 2 Den. C. C. 281 ; 1 Bish. 
 
 C. L. 1001, 3 Gr. Bv. 10; 4 Mews' B. C. 
 L. 1898. § 99, Hughes' Proc. 
 
 272. B. v. GIBSON (18S7), 18 Q. B. D. 
 537, 16 Cox, C. C. 181. 
 
 Cited, § 239, Gr. & Rud. 
 
 Evidence; practice; incompetent evidence 
 vitiates. Only legal evidence is to be 
 admitted. Admission of incompetent evi- 
 dence is error, although it may be cumu- 
 lative in character, and notwithstanding 
 there is sufficient evidence in the record 
 to justify a finding. R. v. Gibson ; De 
 ■minimis does not apply here. R. v. Paul 
 (1890), 25 Q. B. D. 202, 17 Cox, C. C. 
 111. ' 
 
 Judge and jury; province of. Courts have 
 no right to discuss and observe upon 
 sufficient evidence. Tbis is an invasion — 
 usurpation — of the province of tbe jury — 
 is material error. Verdicts and findings 
 will not be allowed to stand which are 
 not founded upon legal evidence. To 
 tolerate this would be to recognize the 
 office of the court to decide in what way 
 the jury ought to have acted upon the 
 error before them which was legally ad- 
 ministered. S. v. Croteau : 271 : Ad quws- 
 tionem facti. 
 
 Production of documents; original writings 
 required; telegrams. If possible, the 
 original telegram banded in for transmis- 
 sion must be produced. R. v. Regan, 16 
 Cox C. C. 203 ; Queen's : 53a ; C. v. Kane : 
 183 : cases. 
 
 273. ASHBY V. WHITE (1704), Ld. 
 Raym. 938, Holt, 524, 6 Mod. 45, 1 
 Brown, P. C. 47, 6 St. Tri. 89, 1 Sm. 
 Lead. Cas., 455-489 (7th ed.), 464-521 
 (9th ed.), 240-298, 11th ed. (reviews Eng- 
 lish cases), 1 Rul. Cas. 521 (action; 
 right of, id. 521, 522, Mech. Cas. Dam. 3, 
 
144 
 
 DATUM POSTS. 
 
 Leading Cases.— 273. Ashby. 
 
 Pattee, Torts, 41, 53, Gt. Opin. Gt. Judges 
 23, cited ; stated iu Blair : 254, 41 Mo. 
 68, 97, and in Stockdale ; Suth. Dam., 13 
 Cyo. 13, 6 Mews' B. C. L. 117, 1 Wat. 
 Tres. 13, n., Cool., Bish., Add., Torts, 
 Wood, Nuis., 1 Suth. Dam. 9-16, 1 Sedgk. 
 Dam. 29, 32, 96, Shear Neg., Gr. Pub. 
 Pol., Gould, Waters, 1 Bish. C. L. 237 ; 
 Angle, Dill. Corp., Beach, Corp. (immun- 
 ity afforded officers) ; Webb, 2 Sumn. 192, 
 No. 17,322 Fed. Cases (damage to water- 
 course, citing Marzetti, a bank check 
 case.) 
 Cited, §§ 5, 55, 56, 126, 347, Hughes' Proc. 
 There is no wrong without a remedy, is a 
 principle of almost universal application. 
 Marbury: 142. Ashby is widely cited to 
 sustain that principle. The facts were: 
 A. was a lawful elector and had a right 
 to vote, but his ballot was rejected by W., 
 a judge of the election. For this A. sued 
 W. Although the candidate A. offered 
 to vote for was elected, still he recovered 
 upon the ground that there is no wrong 
 without a remedy. 
 
 S. P., Ubi jus ibi remedium. Bro. Max. 
 191-211. In casu novum, etc. Remedies 
 afforded without precedents : Winsmore v. 
 Greenbank (1745), Willes, 577, Bigl. L. 
 C. Torts, 328-340, ext. n. ; Ames, Cas. 
 Torts, 589; Kujek v. Goldman (1896), 
 150 N. Y. 176, 55 Am. St. 670, n. ; 34 
 L. R. A. 176 ; see Pollard v. Lyon ; De- 
 ceit. Lynch v. Knight (1861), 9 H. Ld. 
 Cas. 577 ; 2 Smith, Cas. Torts, 744 ; Sedgk. 
 Lead. Cas. Dam. 725 ; 8 Rul. Cas. 382 ; 
 Lumley v. Gye (action, right of) ; Sas- 
 portas v. Jennings; 1 Wat. Tres. 13, n. ; 
 Cool. Torts, 71 (duress case) ; Williams 
 v. Bayley (1866), L. R. 1 H. L. Cas. 
 206-222, 6 Rul. Cas. 455 (duress case) ; 
 Guetzkow, 96 Wis. 591, 65 Am. St. 83, 
 n. (duress ease) ; Bevard, 18 Md. 479, 81 
 Am. Dee. 618, Erwin, Cas. Torts, Bailey, 
 Jurisdic. 910 (judges of election not 
 liable, as held in Ashby. 
 
 Vbi jus, etc., is the corner-stone of our juris- 
 prudence. Marbury. With Ignorantia 
 legis neminem excusat and Necessitas 
 privilegium, etc., it is a great underlying 
 fundamental. It is a ground and rudi- 
 ment of law ; it is a part of the prescrip- 
 tion. It is interwoven with the conserving 
 principles of procedure. 
 
 Absence of a precedent is no ground for 
 declining jurisdiction to protect a right. 
 Piper v. Hoard (1887), 107 N. Y. 73, 1 
 Am. St. 789 (child may recover for fraud 
 committed upon mother). See Prece- 
 dent ; Stake Decisis. 
 
 Injunctions will protect from trifling depri- 
 vations of rights to water courses. Webb, 
 supra. Every right at common law or 
 by statute gives a remedy. Suth. Stat. 
 427 ; Expressio eorum, etc. Vbi jus. 
 
 274. MOSTYN V. FABRIGAS (1774), 1 
 Cowp. 161, 1 Sm. L. C. 1027-1078, 11th 
 ed. (reviews English eases), Brown, Juris- 
 dic. Tucker, Const. 382, 4 Mews' E. C. L. ; 
 Suth. Stat. 18, 49 L. R. A. 78. 
 
 Local and transitory actions; venue. Mor- 
 ris, 78 Tex. 17, 22 Am. St. 17-27 ; Wil- 
 
 Leading Cases. — 274. Mostyn. 
 
 Hams, 52 La. Ann. 1417, 78 Am. St. 390> 
 (torts), Suth. Stat. 12. 
 
 Mostyn, by Mansfield, is widely cited and. 
 discussed, and lately, too. A Wisconsin 
 citizen owned land in that state which was 
 damaged by an interstate railroad. He 
 went into Minnesota and sued there for the 
 benefits of a different rule, for trespass 
 to the realty, and the action was main- 
 tained ; but a dissenting opinion attends, 
 which, we regret to observe, is founded 
 on an argument for a small docket,. and a 
 denial of a remedy for reasons of economy. 
 The right to a remedy should not depend 
 on the condition of a docket, and, if it 
 does, then the gauge should be fixed and 
 . determinable. The economic ends are 
 generally answered, by payment of costs 
 and cost bonds. Little, 65 Minn. 48, 60 
 Am. St. 421 (Mostyn case stated and 
 reviewed). Contra, Mexican R. R., 89 
 Tex. 107, 59 Am. St. 28, n. (citizen of 
 Texas should not sue for personal injury 
 in Mexico, because docket would be in- 
 creased and costs of the administration 
 of justice would be greatly increased, 
 and because commercial traffic might be 
 burdened or embarrassed if a remedy was 
 afforded). Actions for injury to land are 
 transitory. Eingartner, 94 Wis. 70, 59 1 
 Am. St. 859-885, ext. n. (is a right, privi- 
 lege and immunity ; Bartemeyer) . 
 
 Jurisdiction of land in another state is a- 
 subject-matter over which a court can 
 have no jurisdiction. Davenport, 123 N. 
 C. 362, 68 Am. St. 827, n. (See Penn.) 
 Conant, 23 Utah, 627, 66 Pac. 188, 90> 
 Am. St. 721. 
 
 Closely allied with Mostyn are the doc- 
 trines of the lex fori and lex loci con- 
 tractus. Van Voorhis (contract, if valid 
 where made, is valid everywhere). 
 
 Contract; place of. McGarry, 110 Ala. 559, 
 55 Am. St. 40-55, n. ; Wilson, 150 N. Y. 
 314, 55 Am. St. 680, n. ; Gist, 45 S. C. 
 344, 55 Am. St. 763-778, ext. n. ; Ford, 6- 
 Bush (Ky.), 133, 99 Am. Dec. 663-675, 
 ext. n. (void where made, void every- 
 where). A foreign corporation may be 
 sued at home for a personal tort done 
 abroad. Barrow Steamship Co., 170 U. S. 
 100 : cases. Statutory rights and actions. 
 Attrill, 70 Md. 191, 14 Am. St. 344-355, 
 ext. n., 2 L. R. A. 779; Adams, 67 Vt. 
 76, 48 Am. St. 800, n. ; Alabama, R. R. r 
 97 Ala. 126, 38 Am. St. 163, 9 L. R. A. 
 288 (allowed where statutes are the 
 same) : Northern Pac. R. R., 154 U. S. 
 190, Ash, 72 Md. 144, 20 Am. St. 461, n. r 
 2 R. R. & Corp. Rep. Cas. 345-352, n. 
 See Rorer, Interstate Law. 
 
 Equity; jurisdiction of non-residents. Penn. 
 Injunction lies to prevent suit in a foreign 
 state. Miller, 85 Md. 601, 60 Am. St. 
 352, n., sub, McKyring, 70 Vt. 543, 67 
 Am. St. 680, n., 686 : cases, 3 Lead. Eq. 
 Cas. 201-272, 3d ed., 3 Pom. Eq. 1318, 
 2 Sto. Eq. 899, 1 High, Injunc. 106. Boni 
 judicis, etc. 
 
DATUM POSTS. 
 
 145 
 
 Leading Cases.— 274. Mostyn. 
 
 Crimes : jurisdiction of. L. C. 171, 172 ; 
 Suth. Stat. § 12. 
 
 A case involving the principle of Mos- 
 tyn arose in Colorado as follows : Two resi- 
 dents of Colorado were mining partners, 
 and as such, incorporated in Iowa. While 
 both were in the latter state, one sued 
 the other there and had him served with 
 process for an accounting about the cor- 
 porate concerns. While this suit was 
 pending each returned to Colorado, where 
 the defendant then sued the plaintiff and 
 enjoined him from prosecuting his suit 
 in Iowa, already commenced there. The 
 defendant disregarded this injunction, 
 which was founded on no equity what- 
 ever, "except that each party was a resi- 
 dent of Colorado. The Colorado court 
 not having jurisdiction of the subject- 
 matter, the plaintiff in the Iowa case 
 disregarded the injunction, for which he 
 was imprisoned eight months, and until 
 the Iowa court made orders of- peremp- 
 tory significance to the defendant until 
 he should cause the plaintiff in the Iowa 
 case to be released. This case involves 
 many principles of the comity of courts. 
 Some of these are discussed from a local 
 and Colorado standpoint in Doyle, 26 
 Colo. See Freeman : 287. 
 
 Foreign laws presumed to be same as 
 domestic. Suth. Stat. 
 
 275. PENN V. BALTIMORE (1750), 1 
 Ves. 444, 27 Eng. Rep. 1132, 2 Lead. Eq. 
 Cas. 1808-1832, ext. n. ; Brown, Jurisdic. ; 
 Mews' B. C. L. ; 1 Fost. Fed. Prac. 319 
 (decrees in personam) ; 1 Tucker, Const. 
 374. 
 
 Cited, § 40, Gr. & Rud. 
 
 Jurisdiction in equity. Equity acts in per- 
 sonam. 1 Pom. Eq. 135-170, 428-431; 
 3 id. 1317, 1318 ; Boni judicis, etc. ; 69 L. 
 R. A. 673-697, ext. n. This is a widely 
 quoted and cited case. 50 N. J. Bq. 638, 
 7 Am. St. 805, 1 Chit. Conts. 47, 1 Pars., 
 Conts., 2 Kent, 1 Beach, Inj. 75, 80 ; 
 Perry, Trusts, Pom. Bq., Bish. Bq. Sto., 
 2 Va. 691, 3 Am. St. 127. See Scofleld v. 
 Ry. Co. (1885), 43 Ohio, 571, 54 Am. 
 Rep. 846-866, n. ; Pennoyer : 58. 
 
 276. FUSSY v. PTJSEY (1684), 1 Vern. 
 243, 23 Bng. Rep. 465, 1 Lead. Eq. Cas. 
 1109, Mews' E. C. L. 
 
 Cited, § 40, Gr. & Rud. 
 
 Specific performance; articles of special 
 
 value; specific delivery up of chattels. 
 
 McGowin, 12 Pa. St. 56, 51 Am. Dec. 
 
 584-590, Ans. Conts. 313 ; Jones, 58 C. C. 
 
 A. 96-111, ext. n. (equitable jurisdiction 
 
 to give title, also possession to chattels) . 
 
 See Dowling, 2 J. & N. 55 (picture of 
 
 especial value will be ordered delivered). 
 
 Flint, 4 Grant Chy. U. C. 45; Id. 540; 
 
 Id. 657. 
 
 277. STOCKDALE v. HANSARD (1839), 
 9 Adol. & El. 1-243, 36 B. C. L. R. 7 
 Car. & P. 731, 8 D. P. C. 474, 2 P. & 
 D. 1. Bro. Max., 1 Kent, 236, 3 Gr. Ev., 
 Mews' E. C. L. ; Tucker, Const. 101, 205. 
 
 Parliament is omnipotent; limitations. Par- 
 liamentary privileges are bounded by 
 reason, justice and the forms of the law. 
 
 10 
 
 Leading Cases.— 277. Stockdale. 
 
 Thorpe, Sharpless, Loan Ass'n : cases. 
 Cool. Const. Lim. (of the powers which 
 the legislative department may exercise) ; 
 Marbury. Are only restrained by con- 
 stitution. Leep, 58 Ark. 407, 41 Am. St. 
 109, n., 23 L. R. A. 264. See Oakley: 
 223. 
 
 Division of state power in England is* 
 fixed' by precedent. Cujus est instituere. 
 
 278. BONAPARTE v. CAMDEN & AM- 
 BOY R. R. (1830), 1 Bald. (U. S. Cir.) 
 205-233; 3 F. C. 821, 1 Ash. Fed. Cit. 
 q. v., stated, 2 Kent, 338-340, High, In- 
 junc, Brown, Jurisdic. ; cited, Wood, Nuis. 
 770, Bish. Conts. 557, Cool. Const. Lim. 
 29, 266, 662, 3 Pom. Eq. 1351, 2 Sto. Eq. 
 927, 9596, Dev. Deeds, 129, 2 Kent, 359, 
 Lewis, Em. Domain, q. v. 
 
 Injunctions granted to restrain trespass; to- 
 prevent irreparable injury from a threat- 
 ened wrong. Bonaparte ; XJbi jus ; Moak. 
 Torts, 109; 2 Wat. Tres. 1131; R. R. v. 
 Greer : 283 ; 3 Pom. Eq. 1346-1358 ; More 
 v. Massini (Cal.), sub, Assignatus utitur, 
 etc. ; Carney, 32 Fla. 344, 37 Am. St. 
 101, 22 L. R. A. 233; Lewis, 16 R. I. 
 **• 15, 27 Am. St. 724, n. ; 2 Beach, Inj. 
 1125-1166; Flint v. Corbey, 4 Grant's 
 Chy. 45 ; Stevenson, id. 540 ; Fuller, id. 
 657 ; Edwards : 282 ; McGregor, 14 Utah 
 97, 60 Am. St. 883, n. ; Moore, 43 Or. 
 243, 99 Am. St. 724-753, ext. n. (juris- 
 diction of equity over trespasses). 
 
 Habeas corpus protects the person from void 
 and illegal acts, and property should have 
 like protection by injunction. 
 
 "That the complainant may recover damages 
 at law, is no answer to the application 
 against the permanent appropriation of 
 his property for the road under a claim 
 of right ; this is deemed an irreparable 
 injury for which the law can give no 
 adequate relief, or none equal to that 
 which is given in equity and is an ac- 
 knowledged ground for its interference. 
 Trespass is destruction in the eye of 
 equity where there is no privity of estate ; 
 it prevents its repetition or continuance ; 
 protects the rights ; arrests the injury and 
 prevents the wrong ; this is a more bene- 
 ficial remedy than the law can give, and 
 therefore the' proper one for a court of 
 equity to administer." 
 
 1 Bald. (U. S.) 232-233 Moak, Underh. 
 Torts, 109, 2 Wat. Tres. 1131 ; Hughes 
 (1748), 1 Ves. Sen. 188, 28 Eng. Rep. 
 470; Osborn; Belknap (1817), 2 Johns. 
 Ch. 472. 
 
 Injunction will not issue for a mere 
 technical trespass, as where a railroad 
 has enhanced the value of the property. 
 O'Reilly, 148 N. Y. 347, 31 L. R. A. 407. 
 
 Tax demands; injunctions to restrain. Dows. 
 
 Eminent domain; condemnor must pay for 
 land before occupation. Bonaparte ; cited, 
 1 High, Injunc. 485-487, § 622 ; Lewis. 
 Em. Domain ; 2 Kent, 338-340 ; Audi. 
 
 A leading purpose of equity is to pro- 
 tect property pending litigation. New 
 York v. Pine (1902), 185 U. S. 93, 98 
 (stated under Equity), Hughes' Proc. 
 Laches will defeat right to. See Equity. 
 
146 
 
 DATUM POSTS. 
 
 Leading Cases. — 
 
 279. DINEHAET v. LAFAYETTE (1865), 
 19 Wis. 677 ; cited, High, Injunc. g. v., 
 1 Beach, Inj. 138. 
 
 Cited, p. 39, § 93, Hughes' Proc. 
 
 Injunctions; pleadings and practice; cer- 
 tainty required; singularly distinctive 
 rules. An ex parte (without notice) in- 
 junction will not issue upon allegations 
 upon information and belief. Dinehart ; 
 1 High, Injunc. 34, 35, 2 id. 1535, 1531, 
 1587, 1569. Nor can a defendant avail 
 himself of like denials on motion to dis- 
 solve in vacation. "Mutuality is equity." 
 Nihil tarn conveniens est naturali, etc. ; 
 Ubi jus, etc. ; 1 Beach, Inj. 314 ; Hill, 
 Inj. 98 ; Adams, Eq. 196, Chap. 116. 
 Strictness and precision are required un- 
 der codes. McLaughlin : 31 : cases. 
 
 J7a; parte injunctions must rest upon at least 
 prima facie proof and upon full and posi- 
 tive allegations positively verified, or else 
 reinforced by attending affidavits of other 
 proofs which are at least prima facie in 
 character. These upon information and 
 belief only, are insufficient. Dinehart ; 
 Norton, 5 Paige, 249 ; Everly v. Rice r 
 3 Gr. Ch. 553; 1 Beach, Inj. 145; 1 
 High, Injunc. 34, 35. 
 
 Motions to dissolve before answer; province 
 of; limitations; pleadings; practice; pro- 
 cedure; rationale. A leading case upon 
 the practice, one widely cited and which 
 leads to the standard bibliography, is 
 Poor ; 37. See 2 High, Injunc. 1507- 
 1527, 1533; 1 Beach, Inj. 105, 144, 299- 
 315, Adams, Eq. 196, n. ; Minturn ; stated 
 in Salmon v. Claggett (1821), 3 Bland, 
 Ch. (Md.) 125, 162, 1 Beach, Inj. 299, 
 313. Limitations of the issues upon these 
 motions is indicated sub, Trapnall (ac- 
 tions upon injunction bonds). 
 
 Every essential equity must be positively 
 averred — must be authenticated — estab- 
 lished at least prima facie. Of course 
 affidavits may attend and supplement ; it 
 is sufficient that the whole record estab- 
 lishes the certainty required. 1 High, 
 Inj. 34, 35, 2 id. 1572, 1581; 3 Danl. 
 Chan. PI. & Pr. 1664-1669. A more lib- 
 eral rule prevails when notice is given. 
 1 High, Inj. 35. 
 
 Accordingly, it may be deduced that the 
 pleadings are most liberally viewed after 
 notice upon final hearing. That a stricter 
 rule applies at an ex parte hearing, al- 
 though on notice ; and that the most strict 
 rules apply in granting an ex parte in- 
 junction without notice. In the latter 
 case the evidence is often pleaded. 
 
 The practice upon •motions to dissolve is 
 peculiar. 1 Beach, Inj. 299-312. If it is 
 affected by the limited issues above indi- 
 cated and is often by statutes. In many 
 jurisdictions it is jumbled and confused, 
 hut generally these statutes are construed 
 permissive of the equity practice. Such 
 statutes are strictly construed, and con- 
 sistently with the rationale involved — ■ 
 the limitations "and the nature of the issue 
 as it may be constituted. The motion Is 
 
 Leading Cases. — 279. Dinehart. 
 
 of a dilatory character — is interlocutory — 
 ad interim — and therefore is naturally 
 governed by the strictness that governs 
 dilatory proceedings. See Abatement. 
 The rationale is, that the writ having 
 issued without notice, the defendant can 
 have a hearing upon the substantial 
 grounds upon which the injunction rests. 
 The motion is to afford this hearing. 
 Audi. Filing a demurrer or an answer 
 raises the issues to be tried ; formal de- 
 fects are given the go-by for this hearing. 
 And it is difficult to see how these can 
 afterward be raised or heard, because 
 of the waiver involved. R. v. Gibson: 149. 
 See Abatement. The hearing is ^limited 
 to pointing out that the injunction im- 
 providently issues, and the equities 
 specifically and positively denied. Con- 
 cerning these, great strictness is observed. 
 2 High, Inj. 1575 ; San Juan, 6 Colo. 222, 
 223. Cf. Breeze. 
 
 New matter can rarely be heard in vacation, 
 for it is the equities and their positive 
 and specific denials alone that can be 
 heard. But new matter touching and re- 
 lating to such equities and such denials 
 may be heard ; otherwise it must wait 
 until the final hearing — the hearing upon 
 the merits. 2 High, Injunc. 1472, 1482; 
 1 Beach. Inj. 299-312. What is respon- 
 sive and what is not. 1 Encyc. PI. & 
 Pr. 916, 917. Pleadings, when responsive, 
 must not be too narrow. Sub, Bissell : 42. 
 Responsive answers ; what are. 1 Beach, 
 Eq. Pr. 369-392. And each defendant 
 must answer. 
 
 Answer, if proper, dissolves injunction, un- 
 less proofs are offered. Note, 69 Am. Dec. 
 190. See 29 Am. St. 258; Poor; 1 Beach, 
 Inj. 305-307 (the modern rule is not ab- 
 solute, but discretionary). 
 
 Verified statement in answer stands as proof 
 unless denied. Hudson, 101 Va. 63, 99 
 Am. St. 849 ; Boileau : 43. 
 
 Refusal to grant injunction requires an 
 appeal to the supreme court. 101 Va. 63, 
 supra. 
 
 Answer is equal to bill, though the latter is 
 verified by several. Manchester, 6 Paige, 
 295 ; Adams, Eq. 196, n. It is because 
 the answer is equal to the bill that the 
 injunction is dissolved, as above noted. 
 Answers in equity. Sub, Boileau : 43. 
 1 Encyc. PI. & Pr. 865-960. Answers in 
 injunction cases. 1 Encyc. PI. & Pr. 957- 
 962. 
 
 Technical defects and inaccuracies of the 
 bill are not available on motions to dis- 
 solve. 2 High, Injunc. 1482. But other- 
 wise as to the answer ; exceptions may be 
 made to it at the hearing. Gibson, 1 
 Bland, Ch. 362, 17 Am. Dec. 306, u., 1 
 Beach, Eq. 292. 
 
 Dissolution of ex parte injunctions in vaca- 
 tion. This must either be for defects in 
 the bill (often demurrer), or answer filed. 
 The answer must, like the bill (for the 
 rule is mutual and reciprocal), be full, 
 
DATUM POSTS. 
 
 147 
 
 Leading Cases. — 279. Dinehart. 
 
 positive and certain. Note, 69 Am. Bee. 
 190. If upon information and belief, 
 this will not do, unless attended with 
 other proofs or affidavits which make it 
 certain, positive and at least prima facie 
 proof. 2 High, Injunc. 1472, 1475 ; Hum- 
 phreys ; Poor : 37, 38. 
 
 An answer sufficient in form dissolved an 
 injunction as a matter of course; former- 
 ly. Parkinson, 3 Scam. (111.) 367 : cases. 
 But otherwise now. Poor, supra; 1 Beach, 
 Bq. 307, 308. 
 
 JCety matter, not touching the essential equi- 
 ties, will not be heard upon a -motion to 
 dissolve in vacation. 2 High, Injunc. 
 1472, 1481; Hardy, 10 Gill & J. (Md.) 
 3^2, 32 Am. Dec. 167. A plea of res 
 adjudicata is new matter. Burnley, 13 
 Tex. 536, 65 Am. Dec. 79 (a plea of res 
 adjudicata) ; Indian River Steamboat Co., 
 28 Fla. 337, 29 Am. St. 258, n. ; 1 Beach, 
 Eq. 308-313 ; Adams, Bq. 196, n. ; Min- 
 turn, supra. 
 
 A motion to dissolve in vacation is limited 
 to the equities, and their full, conscien- 
 tious and positive denials. Beyond this 
 the motion or other pleading itself is lim- 
 ited to what it specifies. Expressio unius, 
 etc., applies. Bach equity must be de- 
 nied. 2. High, Injunc. 1475 ; Indian River 
 Steamboat Co. 
 
 Laches in applying for injunction will de- 
 feat. 2 Danl. Ch. PI. & Pr. 1639 : cases. 
 Rule 31, Moak, Torts. And unless mutual, 
 is ground for dissolution. 2 High, In- 
 junc. 1490 ; 2 Beach, Inj. 297 ; Cessante 
 ratione legis; Hill, Inj. 110. 
 
 Facts must be more fully stated for an 
 ■ex parte injunction than when application 
 is made upon notice. Suppressing any fact 
 is ground for dissolving, without regard 
 to the merits. 2 Danl. Ch. PI. & Pr. 
 1664; 1 Beach, Inj. 280. 
 
 False and sham pleadings confer no juris- 
 diction. Seabury : 281. See Rensberger ; 
 Breeze. 
 
 Deception and fraud in obtaining, is ground 
 for dissolving; the utmost good faith is 
 exacted. 2 High, Injunc. 1474, 1655. And 
 one must stand with clean hands. Sea- 
 bury ; Edwards : 282. A speculator buy- 
 ing lands to speculate on is denied a 
 remedy. Id. 
 
 Prayer must be formal and specific, or re- 
 lief will be denied upon that ground. 
 2 High, Inj. 1432. See White: 140 (a 
 general prayer sufficient — any prayer is 
 sufficient). But a stricter rule is some- 
 times applied where an ex parte injunc- 
 tion is sought (English rule). 
 
 Injunctions are a harsh remedy, and 
 are sparingly used, except upon notice, 
 or after trial. 1 High, Inj. 34, 35, 2 id. 
 1581. Notice is essential to dissolve. 1 
 Beach, Inj. 335. 
 
 Discretion has a large field; the remedy is 
 applied with caution. Hubble, 88 Va. 236, 
 13 L. R. A. 311. And a court may con- 
 sider and weigh opposite interests. New- 
 son, 27 Ch. Div. 43-65, 3 Rul. Cas. 57 ; 
 
 Leading Cases. — 279. Dinehart. 
 
 Griffith, 27 Ch. Div. 474-477 ; 13 Rul. Cas. 
 112-117, n. ; Walker, 135 111. 13, 11 L. 
 R. A. 577, n. ; Fester, 145 Ind. 171, 32 
 L. R. A. 578 ; 1 Beach, Inj. 21, 25, 280- 
 290 ; Moak, Torts, 106 ; Adams, Bq. 196, 
 n. ; Poor. Degrees of merit will be con- 
 sidered. Edwards ; Hill, Inj. 78 ; Moak, 
 Torts, 106; 1 High, Inj. 13. 
 
 A second motion may be allowed, if leave 
 is granted. 1 Beach, Inj. 342. These 
 hearings are not res adjudicata. Chiches- 
 ter. See Res Adjudicata. 
 
 Dismissal of bill follows denial or dissolu- 
 tion, unless an amendment is desired 
 or it is retained for other purposes. 1 
 Beach, Inj. 321, 2 id. 1402. 
 
 Mandatory injunctions. Murdock's Case, 
 sub, Ubi jus, etc. Great strictness of 
 proof exacted in. . Rule 30, Moak, Torts, 
 3 Pom. Eq. 1350, 10 Am. & Eng. Encyc. 
 Law, 791, 1 Beach, Inj. 102. Ubi jus. 
 
 Irreparable injury; what is. Dudley, 67 
 Md. 44, 1 Am. St. 368, ext. n. See Ib- 
 
 EEPABAELE. 
 
 To restrain torts. Bonaparte : 278 ; Moak, 
 Torts, Rules 27-31, 2 Beach, Eq. 710-759, 
 2 Beach, Inj. 1042-1188, Adams, Eq. 200- 
 219 ; Miller, 121 Wis. 558, 7 L. R. A. N. S. 
 49-86, ext. n. (removal of gates and 
 fences). 
 
 Crimes. Hamilton : 280 ; Rose v. Miles ; 1 
 Beach, Inj. 58-60, 574, 1092, 1106. 
 
 Ex parte and interlocutory injunctions. 2 
 Danl. Chan. PI. & Prac. 1663-1683, 7 
 Am. & Eng. Encyc. Law, 786-789; Mews' 
 E. C. L. 
 
 Injunctions, generally. High, Injunc, 2 
 Beach, Eq. 638-780, Beach, Inj., 7 Am. & 
 Eng. Encyc. Law, 729-1020 ; Mews' E. 
 C. L. 
 
 280. HAMILTON v. WHXTRISGE 
 (1857), 11 Md. 128, 69 Am. Dec. 184, 
 n. ; 1 High, Injunc. 782. 
 
 Nuisance; enjoining of; enjoining of crimes 
 and of criminal proceedings. 
 
 Hamilton ; Crighton, 70 Miss. 602, 35 
 Am. St. 666-681, ext. n„ 21 L. R. A. 
 84-89, n. ; Paulk, 104 Ga. 24, 69 Am. St. 
 128, n. ; 1 High. Injunc. 782 ; Columbian 
 Athletic Club, 143 Ind. 98, 52 Am. St. 
 407, n., 2 Am. & Eng. Eq. Cas. 340-356, 
 ext. n. ; Klein, 177 Pa. 224, 55 Am. St. 
 717, n. ; Vegelahn, 167 Mass. 92, 57 Am. 
 St. 443, n., 35 L. R. A. 722 (for a pri- 
 vate person a crime may be restrained) ; 
 Crawford, 128 N. Y. 341, 158 U. S. 593, 2 
 Beach, Eq. 652, 1 High, Injunc. 782 ; 
 Haggart, 137 Ind. 43, 22 L. R. A. 577, 
 n. (saloon) ; Dickinson, 78 la. 710, 6 L. 
 R. A. 721, n. ; Neaf, 103 Ky. 496, 41 L. 
 R. A. 219 (bawdy-house will not be en- 
 joined) ; contra: Hamilton; Blagen, 34 
 Or. 394, 44 L. R. A. 522, stating Ham- 
 ilton; Paulk, 105 Ga. 501, 41 L. R. A. 
 772. 
 
 Morals may be protected by injunction. 
 Hamilton ; 2 Am. & Eng. Eq. Cas. 356, 
 445 ; Millhiser, 96 la. 327, 2 Am. 
 & Eng. Bq. Cas. 445-453, ext. n. 
 
 Crimes; injunctions against. Bawdy-house 
 may be enjoined. 2 Am. & Eng. Eq. Cas. 
 356. 
 
 Town may protect its streets. Huron, 
 
148 
 
 DATUM POSTS. 
 
 Leading Cases. — 280. Hamilton. 
 
 8 So. Dak. 449, 59 Am. St. 769, n., 1 
 Dill. Corp. 784. And the government its 
 highways. Debs' Case. 
 
 Equitable jurisdiction. 1 Bish. Crim. 
 Proc. 1412-1417. Parties. Rose v. Miles ; 
 3 Suth. Dam. 1038, Cool. Torts, 736. 
 Merger. White : 176. Abuses of injunc- 
 tion. Cool. Torts, 22. See Equity. 
 
 Injunctions against commission of crime. 
 Crighton ; Vegelahn, supra; 1 High, In- 
 junc. 2027 (not enjoined). Criminal 
 proceedings not enjoined. 1 High, Injunc. 
 20, 68, 272. 1244. 
 
 281. SEABTJBY v. SEOSVENOR (1877), 
 14 Blatch. U. S. 262, 14 O. G. 679, 53 
 How. Prac. 192, Cox, Trademark Cas. 316, 
 No. 12,576 Fed. Cas., Hopkins' Unfair 
 Trade, 47, 338. §§ 13, 156, 353, Hughes' 
 Proc. §§ 52, 70, 170, 292, Gr. & Rud. 
 
 Seabury stated: Plaintiffs were patent medi- 
 cine sellers. They advertised "Benson's 
 Capcine Plasters," as made from capcine, 
 a wonderful vegetable principle just dis- 
 covered by a celebrated chemist, and that 
 it was approved by great leading and suc- 
 cessful physicians in hospitals ; that the 
 flattering and astonishing results which 
 characterized its action at one stamped 
 it as the most remarkable principle ever 
 discovered. A registered trade-mark was 
 falsely claimed in the word "capcine." In 
 fact, there was no such substance, and 
 all these claims were humbug. 
 
 Courts of equity refuse to interfere in be- 
 half of persons who claim property in a 
 trade-mark, acquired by advertising their 
 wares under such representations as those 
 above cited, if they are false. It was 
 shown there is no such article as "cap- 
 cine" known in chemistry or medicine, 
 or otherwise. The authorities are clear 
 that, ( in a case of this description, a 
 plaintiff loses his right to claim the as- 
 sistance of a court of equity. Lee v. 
 Haley (1870), 5 Chan. App. Cas. 159, 
 Mews' B. C. L. ; High, Injunc. ; Leather 
 Co. v. Am. Co. (1865), 4 De Gex (J. & 
 S.) 142, 11 Hou. L. Cas. 523, 11 Eng. 
 Rep. 1435, Mews' E. C. L. ; High, Injunc. 
 Manhattan Medicine Co., 108 U. S. 218 ; 
 Wilson Co., 80 Fed. 896, 901 : cases, 52 
 Fed. 437 ; 66 Fed. 753. 
 
 Motive and purpose considered in granting 
 equitable relief. Edwards : 282. One must 
 come into court with clean hands. In 
 pari, etc. ; Collins ; Leather Co., supra; 
 Fabula. Plaintiffs guilty of deceit as to 
 origin and quality of a thing, or as to 
 their rights to it, will be denied injunc- 
 tive relief. 2 High, Injunc. 848. 
 
 A plaintiff's right to an interlocutory in- 
 junction is not barred by laches, when he 
 has foreborne in a reasonable hope of an 
 accommodation, and the defendant has 
 not incurred expense or injury through 
 the delay. Lee v. Haley, supra; Mews' 
 E. C. L. ; Weaver : 67. However, laches 
 is often considered. 
 
 A real, bona fide cause of action is es- 
 sential for a judgment and its continu- 
 
 Leading Cases. — 281. Seabury, 
 
 ance. Beaumont : 367 ; White v. Bluett ; 
 Dinehart. See Rensberger v. Britton 
 (Colo.). 
 
 282. EDWARDS V. ALLOUEZ MIN. CO 
 (1878), 38 Mich. 46, 7 Mor. Min. Rep. 
 577, 31 Am. Rep. 301. 
 
 Speculators buying property to litigate over, 
 are denied equitable relief in that litiga- 
 tion. Cool. Torts, 72, 2d ed. Motive 
 sometimes affects the right to a remedy. 
 
 Intent an element in procedure. Graver ; 
 Dash : 103, 238a. See Malicious Acts. 
 
 One cannot cause his injury and complain 
 of it in equity. Lancy, 80 Mich. 169, 6 
 Am. St. 169. Volenti, etc. 
 
 283. B. B. (MEMPHIS & CHARLESTON 
 R. R.) v. GREER (1889), 87 Tenn. 898, 
 711, 29 Cent. L. J. 230, 4 L. R. A. 858, 
 ext. n. ; cited, 1 High, Injunc. 180, 58 
 C. C. A. 540, n. § 296, Gr. & Rud. 
 
 B. B. v. Greer stated: Greer was a freight 
 conductor, and in violation of rules al- 
 lowed one Powell, a kinsman, to ride on 
 a freight train, where he was injured, 
 and for which he was suing in Mississippi 
 for $5,000 damages. Afterward Greer 
 was injured and recovered judgment for 
 $8,000, in Tennessee, against the com- 
 pany. The company applied for an in- 
 junction, setting up that G. was insol- 
 vent ; that if permitted to collect his 
 judgment, and the company was also 
 compelled to pay P. in Mississippi, then 
 in that case G. would be liable over to 
 the company (Harriman v. Stowe), but 
 that it would be unable to collect from 
 him because of his insolvency. Held, that 
 G.'s proceeding should be stayed upon the 
 principle of quia timet. , 2 Beach, Eq. 
 665 ; 1 Beach, Inj. 545-607. 
 
 Quia timet bills will lie in equity to pre- 
 vent irreparable injury on account of in- 
 solvency. R. R. v. Greer; Baird v. Good- 
 rich, 5 Heisk. (Tenn.) 20; Pom. Eq. Jur. 
 1417. It has been held that a surety, 
 when his principal is insolvent, may pro- 
 ceed against ' him before paying the debt. 
 Miller v. Speed (1872), 9 Heisk. (Tenn.) 
 200, 201 : cases ; Pusey : 276 ; Vbi jus. 
 
 Equity suffers no wrong without a rem- 
 edy. Bisph. Eq. 37 ; Burton, 6 Houston 
 (Del.), 522, 22 Am. St. 363, n. 
 
 Ubi jus, ibi remedium is well illustrated at 
 common law in Ashby: 276. It is in- 
 structively applied in R. B. v. Greer; 
 Bonaparte: 278. Assignee of a judgment 
 stands in the shoes of the assignor. 1 
 High, Injunc. 180. 
 
 Equitable jurisdiction to stay judgments 
 and to protect rights to set-off. Freyer 
 Co., 55 C. C. A. 529-543, ext. n. 
 
 284. BOYALL, EX PASTE (1886), 117 
 U. S. 241. Habeas corpus; unconstitu- 
 tional law. Circuit courts of the United 
 States may, in their discretion, relieve one 
 arrested under an unconstitutional law 
 and proceedings of a state court. Brown, 
 Jurisdic. An unconstitutional law is no 
 law. Royall, 117 U. S. 248 ; Siebold, 100 
 U. S. 371, 376; Kelly: 285. 
 
 Habeas corpus to relieve from unconstitu- 
 tional proceedings. Conflict of cases. 
 
DATUM POSTS. 
 
 149 
 
 Leading Cases. — 284. Royall. 
 
 Koeppe, 157 Ind. 172, 87 Am. St. 162- 
 203, ext. n. ; P. v. Mallory, 195 111. 582, 
 88 Am. St. 212, n. (validity of statute 
 cannot be tested on habeas corpus pro- 
 ceedings). 
 
 285. KELLY v. BEMXS (1855), 4 Gray 
 (Mass.), 83, 64 Am. Dec. 50-55, ext. n., 
 2 Bailey, Jurisdic. 905, Mech. Pub. Off. 
 901, Cool. Torts, 544, Van Fleet, Coll. 
 Att. 78, 108, Shear. Neg. 159; Hutche- 
 son, 92 Tex. 685, 71 Am. St. 884. §§ 
 178a, 179, 185, 300, Hughes' Proc. 
 
 Cited, § 258, Gr. & Rud. 
 
 An unconstitutional law and proceed- 
 ings are void and may be relieved against 
 by habeas corpus. Royall, Ex parte (U. 
 S.) 
 
 Unconstitutional statute is no protection for 
 a justice causing an arrest under. Kelly, 
 83 Am. St. 767. Contra: Brooks, 86 
 Mich. 576, 24 Am. St. 137 (justice may 
 pass upon, in good faith). See Maher 
 v. S. See Arrest. 
 
 Practical construction. See Communis error 
 facit jus. Maher : 255. 
 
 Constitutional rights, waiver of. Stewart, 
 45 Kan. 708, 23 Am. St. 746 ; Baker, 6 
 Hill, 47, 40 Am. Dec. 387, n., 2 Beach, 
 Eq. 1092; Osborn v. Clark, 204 U. S. 
 565 (is waived if not objected to). Con- 
 stitutional limitations of indebtedness. 
 Beard v. Hopkinsville. 
 
 When recovery allowed upon contract in 
 violation of constitution. Hitchcock. 
 
 Proceedings in violation of a constitu- 
 tion are coram non judice. Virginia 
 Coupon Cases. Brown, Jurisdic. 105, 110. 
 See Habeas Corpus. Constitutions are or- 
 ganic and therefore paramount. Suth. 
 Stat. 2. 
 
 On principle, any one anywhere at 
 any time should be welcomed to suggest 
 that a law is unconstitutional. Each 
 member of society should be viewed and 
 respected as his brother's keeper from 
 usurping wrong. Each member of so- 
 ciety has the inherent right to defend 
 society from arbitrariness or encroach- 
 ments of state power. Salus populi su- 
 prema lex. There are duties and rights 
 arising from the prescriptive constitu- 
 tion above the consent, the waiver and 
 the acquiescence of injured persons. See 
 Windsor : 1 ; Lange : 159. But a contrary 
 view is fast gaining a foothold in some 
 courts. See Wright v. Braxton, sub, Oak- 
 ley: 222. "Masses" of cases are accumu- 
 lating, against ancient landmarks. 
 
 285a. VIRGINIA COUPON CASES 
 (1884), 114 U. S. 270-340: cases. 
 
 Cited, §§ 47, 107, 262, Gr. & Rud. 
 
 Statement of the case. Poindexter owed the 
 state a tax of $12. Greenhow, a tax col- 
 lector, seized P.'s desk and was proceed- 
 ing to sell it to satisfy the tax. He 
 brought a suit of detinue against G. Be- 
 fore the seizure. P. had made a tender of 
 the tax with coupons to state bonds which 
 had been issued upon the condition that 
 they were receivable by the state for its 
 taxes. Afterward the state sought to re- 
 
 Leading Oases. — 285a. Va. Oases. 
 
 pudiate the bonds and thus impair the 
 obligation of its contract. 
 
 G. undertook to defend upon an author- 
 ity given by the state ; he succeeded in its 
 courts from which P. removed the cause 
 on error to the federal supreme court 
 wherein he succeeded. It is a very in- 
 structive case and presents phases of these 
 questions : The mandate of the state af- 
 ford no justification for the invasion of 
 rights secured by the constitution of the 
 U. S. otherwise that constitution would 
 not be the supreme law of the land. Pp. 
 288-292. In prcesentia majoris. Cohens 
 V. Vir. ; Martin v. Hunters. 
 
 Impairing the obligation of contracts forbid- 
 den: Bronson v. Kinzie. 
 
 One relying on a law or a defence must 
 make it appear. Burden of proof. 
 
 Defences not pleaded are waived. Cromwell 
 v. Co. of Sac. 
 
 Governmental corporations like states can- 
 not commit trespass; but individuals com- 
 mitting trespass in the name of the state 
 may be guilty. Tyler v. Pomeroy. 
 
 Essential, necessary parties must be present 
 before a court will proceed. Williams v. 
 Bankhead. 
 
 Where a state cannot be a party to make it 
 such would be vain and useless. Lex 
 neminem cogit, etc. 
 
 Justification defences must be pleaded. 
 J'Anson : 91 ; Mostyn : 274. An authority 
 must be pleaded. Hopper : 4 ; J'Anson : 
 91. Conclusions of law insufficient. 
 Cruikshank: 232. 
 
 Ignorantia legis neminem excusatj officers 
 must know the law. 
 
 The study of procedure is a study of 
 government. U. S. v. Cruikshank; Blake 
 v. McClung ; Tyler v. Pomeroy. 
 
 286. EDWARDS V. EEABSET (1877), 
 96 U. S. 595, 24 L. ed. 793, Myer, Vested 
 Rights, 377 ; stated, 2 Beach, Conts. 24, 
 2 id. 1671, 1 Page, 1774, 55 Kan. 475, 
 49 Am. St. 264, 1 Kent, 419, n. ; Seibert 
 v. Liewis (1887), 122 U. S. 284; Suth. 
 Stat. 471, 479 ; 3 Pars. Conts. 504, 1 
 Beach, Pub. Corp. 435, 1 Beach, Conts. 
 24, 2 id. 1631, 1667, 1669, 1671. Cited, 
 § 55, Hughes' Proc. 
 
 Constitutional law; exemptions; rights and 
 remedies; impairing the obligation of con- 
 tracts. Exemption laws passed after a 
 contract is made are void. Bronson : 238. 
 Ubi jus : there is no wrong without a 
 remedy. Rights and remedies ; the latter 
 may be changed if the former are not 
 impaired. De minimis : the law does not 
 concern itself about trifles. An exemp- 
 tion of $1,500 after a law is passed, is 
 excessive. Edwards v. Kearsey. 
 
 History of causes why amendment pro- 
 tecting contracts was adopted. Opinion 
 quoted under Edwards. Ubi jus. 
 
 A wrong without a remedy can not exist. 
 Ashby ; Windsor. Substantive law de- 
 pends on adjective law. Texas R. R. v. 
 Humble. 
 
 Exemption laws; construction of. Suth. 
 Stat. 223, 420-423. See Exemptions, id. 
 
150 
 
 DATUM POSTS. 
 
 Leading Oases. — 
 
 887. PBEEMAN v. HOWE (1860), 24 
 How. (U. S.) 450, 26 L. ed. 749; stated, 
 3 Wall. 341 (Buck v. C), 154 U. S. 274, 
 1 Beach, Pub. Corp. 338, 1 Kent, 410, 29 
 Am. St. 311, Brown, Jurisdic, Bailey, 
 Jurisdic, 1 Fost. Fed. Prac. ; cited. Cob- 
 bey, Replev. 147, 157, 159-161, Wells, 
 Jurisdic. 152, 350, Drake, Attach. 251, 
 Wells, Replev. Wap. Attach. Ror. Inter- 
 state Law, 14-16, 439, Ror. Jud. Sales, 
 508, 2 Beach, Inj. 986-988. 
 
 Cited, §§ 176, 326, 333, Hughes' Proc. 
 
 Property in custody of one court cannot be 
 disturbed by process from another court. 
 Byers, 149 U. S. 608 : cases ; Porter v. 
 Sabin; Covell, 111 U. S. 176; Rio G. R. 
 R., 132 U. S. 481, 48z; North, 138 V. S. 
 271 (rule stated), Brown, Jurisdic. 95; 
 Krippendorck, 110 U. S. 276, 28 L. R. A. 
 145; Plume, etc. Mfg., 136 111. 163, 29 
 Am. St. 305-318, ext. n. (conflict of juris- 
 diction) ; 1 High, Injunc. 83-93 ; Chit- 
 wood, 165 U. S. 443 ; Payne V. Drewe 
 (1804), 4 Bast, 523; Moran, 154" TJ. S. 
 256-288 : cases. 
 
 Facts showing the . conflict should be 
 pleaded. Smith, 9 Colo. 381; cited, Free- 
 man. The conserving principles of pro- 
 cedure require this. See Jurisdiction. 
 Receivers — assignees in bankruptcy ; ex- 
 clusiveness of jurisdiction. Schuyler's 
 Steam, 136 N. T. 169. 20 L. R. A. 391- 
 398, ext. n. 
 
 Jurisdiction; Custodia legis; goods cus- 
 todia legis are not subject to seizure upon 
 process from other courts; the comity of 
 courts is a conserving principle, § 98, 
 Gr. & Rud. Freeman ; Buck v. Colbath, 
 341, stated, 132 U. S. 482 (the officer may 
 be sued in trespass).; Ableman ; Noe v. 
 Gibson, 7 Paige 513. Qui prior est tem- 
 pore, etc. ; Payne v. Drewe, supra; Wal- 
 lace, 13 Pet. 136; Curtis, 78 Tex. 262, 10 
 L. R. A. 529, n. See Mostyn : cases. 
 Concurrent jurisdiction. Bailey, Jurisdic. 
 77-107. 
 
 Courts cannot exercise powers which will 
 bring them in collision. Carson, 149 
 Mass. 52, 14 Am. St. 397, 3 L. R. A. 
 203, n. ; cited, Buck ; Sharon, 36 Fed. 
 Rep. 337, 1 L. R. A. 572 ; stated, Buck 
 (court first acquiring jurisdiction will re- 
 tain it. Sharon). 
 
 Property lawfully seised and in the posses- 
 sion of one court cannot be disturbed by 
 process issuing from another court. Buck. 
 
 But one may replevin his chattels if seized 
 for the debt of another. Cobbey, Replev. 
 309. And other exceptions exist. Cob- 
 bey, Replev. 299-332. See Lepple, 51 N. 
 J. L. 208, 14 Am. St. 677, 4 L. R. A. 
 48 (exempt goods cannot be replevined). 
 Contra: Welter, 7 N. Dak. 32, 66 Am. 
 St. 632 (contempt to do so). 
 
 Replevin will not lie for property in cus- 
 todia legis. Lempt v. Fullerton (1891), 
 83 la. 192, 13 L. R. A. 408, n. 
 
 A principal cannot replevin where property 
 was taken from his agent. Larson, 62 
 Minn. 256, 54 Am. St. 639, n. 
 
 Leading Cases. — 287. Freeman. 
 
 Money taken from one arrested is custodia 
 legis. Holker, sub, Balus popull, etc. 
 
 Property in the custody of a receiver is pro- 
 tected under this rule. Moran, supra; 
 Wap. Attach. & Garn., §§ 577, 578. 
 
 Jurisdiction vesting in one court excludes all 
 others. Chitwood ; Moran. United States 
 courts cannot stay proceedings in state 
 courts. R. S. U. S. 720. See Civil 
 Rights; 1 Beach, Eq. Pr. 27; Crosby, 
 98 Me. 542, 99 Am. St. 424. 
 
 Comity of courts is mentioned in relation 
 to the conserving principles of procedure. 
 It is Involved in many discussions. Free- 
 man ; Plume Co., sub, McKyring : 33. 
 
 One co-ordinate court will not enjoin 
 process from another court of same grade. 
 Scott, 146 Ind. 12, 58 Am. St. 345, n. 
 
 Federal officers liable in state courts 
 for trespasses committed under process 
 issued out of federal courts. Steele, 115 
 Ala. 485, 67 Am. St. 62, n. Buck v. 
 Colbath. 
 
 Mandatory record essential to show 
 what subject-matter is before a court, 
 for reasons discoverable in Freeman. 
 
 288. HOY v. HOESELEY (1877), 6 Oreg. 
 382, 25 Am. Rep. 537-541, n. ; Brown, 
 Jurisdic. 
 
 Terms of court; strict provisions regulating. 
 See Magna Chabta ; Blair : 170 ; Nixon : 
 117 ; Piper : 114. § 35, Hughes' Proc. 
 
 Courts must convene, sit and adjourn as is 
 provided for by general law. Blair : 170 ; 
 Van Fleet, Coll. Att. 30-33; Freem. Judg. 
 121 ; Cool. Const. Lim. 399 ; Brown, Juris- 
 dic. 3, 26 ; Alison, 13 Colo. 525. Judg- 
 ment rendered in vacation is void. Ellis, 
 
 37 Tex. Crim. Rep. 539, 66 Am. St. 831 ; 
 Hilson, 107 Ga. 230, 73 Am. St. 119. 
 See Terms of Court. 
 
 Assessing powers are strictly judged 
 also. Welty, Assess. 223 ; 1 Cool. Tax. 
 481-484. See Magna Charta. 
 
 289. LOVEJOY V. MTJBBAY (1865), 3 
 Wall., 18 L. ed. 129, 2 Smith, Cas. Torts, 
 709 : cases, Burdick, Cas. 159. 
 
 Joint trespassers. All are liable for the 
 acts of each. Kirkwood. 
 
 Indemnitor ; warrantor; notice to defend 
 suit; effect. Lovejoy ; St. Louis Beef Co. r 
 Consolidated, etc. Co., 171 Mass. 127, 68 
 Am. St. 409, n. ; St. Joseph, 116 Mo. 636, 
 
 38 Am. St. 626 ; 1 Gr. Ev. 188, 1 Suth. 
 Dam. 83-86, 2 Suth. Dam. 763, 7 Rob. 
 Prac. 150-152, 2 Smith, Lead. Cas. 956, 
 8th ed. 801 ; Ryerson, 66 Me. 557 ; West- 
 field, 122 Mass. 100 ; Beale Dam. 177-192, 
 2 Sedgk. Dam. 805 ; 2 Black, Judg. 567- 
 573 ; 2 Van Fleet, For. Adj. 576-579. 
 
 Judgment is binding on one who refuses to 
 defend when he ought. Missouri R. R., 
 35 Neb. 267, 37 Am. St. 437, n. ; Ham- 
 mond, sub, Malicious Acts ; 2 Van 
 Fleet, For. Adj. 576-579, 2 Black, Judg. 
 567-573. 
 
 Release ; discharge of one joint tres- 
 passer ; effect. Ellis : 389, notes, 11 Am. 
 St. 906-909, n. 
 
 Indemnity to officers; sheriffs, when valid. 
 
DATUM POSTS. 
 
 151 
 
 Leading Cases. — 289. Love joy. 
 
 Ray, 126 Mich. 417, 86 Am. St. 548-558, 
 ext. n. ; Robey v. S., 94 Mich. 61, 89 
 Am. St. 404-419, ext. n. ; Arnolds, 94 Md. 
 487, 89 Am. St. 444, n. 
 
 Property does not vest in a wrongdoer by 
 judgment recovered until it is paid. Mil- 
 ler v. Hyde. 
 
 Morally, one is bound to pay for property 
 before title vests in him. Miller v. Hyde. 
 
 290. WAGNER v. GIBBS (1902), 80 
 Miss. 53, 31 S. E. 434, 92 Am. St. 598, n. 
 
 Cited, § 94, Hughes' Proc. 
 
 Exemplary (punitive) damages — "smart 
 money" J allowed in civil cases, for crim- 
 inal acts, although the party may also be 
 liable criminally. Merest, 2 Suth. Dam. 
 290-412. 
 
 This rule is sustained by stare decisis. 
 It exists in England, Arkansas, Califor- 
 nia, Delaware, Florida, Illinois, Iowa, 
 New Hampshire, New York, North Caro- 
 lina, Ohio', Pennsylvania, South Carolina, 
 Texas, Vermont, Virginias, Wisconsin, and 
 in federal courts. 80 Miss. 61. 
 
 Record of plea of guilty in criminal case 
 admissible to show that transaction was 
 wilful, malicious and unlawful to sustain 
 a claim of exemplary damages. 80 Miss. 
 62, 92 Am. St. 601. See Brittain : 50. 
 Death of injured party does not abate 
 suit for injuries to the person where stat- 
 ute allows representative to prosecute for 
 injuries done a decedent. Nor does it 
 abate the measure of damages. Death of 
 wrongdoer abates the right to exemplary 
 damages. A plea of noZo contendere can- 
 not be used in a civil case. 
 
 290a. B. B. v. STEWART (1877), 95 
 U. S. 279, 284, 24 L. ed. 431. 
 
 Cited, §§ 12, 251, Hughes' Proc. 
 
 Bill of exceptions j prolixity should be 
 avoided; substance only, of proceedings 
 should be set out in R. R. v. Stewart. 
 For stenographic reports, questions, 
 answers and repetitions forbidden. Har- 
 vey, 71 III. 117, 120 ; P. v. Getty, 49 Cal. 
 581-584 ; Snyder, 33 Mich. 483 ; McMinn, 
 27 Cal. 300, 320; Bassett, Verba relata 
 hoc maxime, etc. ; Utile per inutile ; 
 Vaiden ; 3 Encyc. PI. & Pr. 330-340. 
 
 Surplusage taxed to party at fault. Ball & 
 Socket Fastener Co., 150 U. S. III. (rule 
 10, Par. 9, Sup. Ct. Rep. applied). Pro- 
 lixity and surplusage condemned. R. R. 
 v. Stewart ; Grand Trunk ; 3 Encyc. PI. & 
 Pr. 416. § 253, Hughes' Proc. 
 
 Testimony should be condensed. Where sev- 
 eral witnesses all testify to the same 
 point, one may be quite fully set out as 
 a model, so to speak, and others referring 
 to it and stating that the witness testi- 
 fied substantially as the other witness. 
 Verba relata hoc maxime, etc. 
 
 Where many experts testify similarly, 
 this plan should be followed ; if the ad- 
 verse side desires more, it should be ex- 
 pressly proposed by him and noted as his 
 addition, and if not adjudged material, 
 it should be taxed to him, and in a 
 vexatious case at a repressive rate. Sur- 
 
 Leading Cases. — 290a. Stewart. 
 
 plusage should not be encouraged, nor be 
 incorporated, thereby making records ex- 
 pensive, oppressive, cumbrous and delay- 
 ing ; such impose onerous duties upon re- 
 view courts, which must sift and gather 
 matter from them. 144 U. S. 415. 
 
 Facts proved may be certified instead 
 of the detailed evidence, to avoid prolix- 
 ity. Vaiden. When a fact is judicially 
 admitted or confessed or otherwise ad- 
 mitted, it is violating a sound rule to in- 
 corporate it. Only evidence relevant to 
 the errors assigned should be incorpor- 
 ated. Grand Trunk. 
 
 Loose and imperfect papers in record 
 proper cannot be noticed. Pomeroy's 
 Lessee, 1 Wall. 592, 638 ; Hanna, 122 
 U. S. 24. Papers must be incorporated 
 in record with certainty ; mere reference 
 to, for insertion, insufficient. Jefferson 
 City R. R., 67 Mo. 394, 7 Cent. L. J. 46 
 n. ; 3 Encyc. PI. & Pr. 330-340. 
 
 Skeleton bill sufficient; clerk may fill «p. 
 Crawford, 92 Mo. 498, 1 Am. St. 745 ; 
 Grand Trunk R. R., 3 Encyc. PI. & Pr. 
 330-340. 
 
 Bills of exceptions ought to be taken at 
 trial, and as it progresses this was the 
 former rule. Pow. App. Proc. 220 ; but 
 may be during term, or in such time as 
 is fixed by order. Sub, Owen v. Weston ; 
 Ward v. Cochran (1893), 150 U. S. 597, 
 37 L. ed. 1195; 2 Ell. Prac. 1071. 
 
 A bill should be filed for each term and 
 to separate transactions. Contra, Stock- 
 ing, 14 Colo. 317 (may be at a subse- 
 quent term). 
 
 Bill of exceptions; how constituted; func- 
 tions of. Many exceptions may be in one 
 bill. Pomeroy's Lessee, supra. 
 
 Form; what it must contain. Pow. App. 
 Proc. 225-234; 3 Encyc. PI. & Pr. 374- 
 516. 
 
 Constituting of bill: judge should sign, if 
 true, L. C. 154;. if not true, make it so, 
 suggest corrections and state wherein the 
 bill is faulty ; a general objection to it is 
 no objection. Pow. App. Proc. 233-261. 
 As elsewhere, objections should be specific. 
 Consensus ; and objections not made are 
 waived. Expressio unius, etc. Procedure 
 to enforce the signing and production of a 
 bill. Pow. App. Proc. 249-261 ; Jelly, 
 50 Ind. 1. Contents of the bill. Gener- 
 ally, all waivable matters should be pre- 
 sented by the bill. Consensus, etc. 
 
 Duty of judge to sign, assist, advise and 
 aid in making a true bill. If a bill pre- 
 sented is not true, the judge should either 
 correct it or direct in writing its cor- 
 rection. Jelly, supra. If the adverse side 
 has objections, these should be stated in 
 writing early and promptly, and have ap- 
 plied to them, on objections so stated, 
 Expressio unius, etc. Statutes disqualify- 
 ing parties and their attorneys from 
 swearing to the facts, and thus giving to 
 the certificate of a judge undue impor- 
 tance, and above all, other oflicial certifl- 
 
152 
 
 DATUM POSTS. 
 
 Leading Cases. — 290a. Stewart. 
 
 cates, and on the other hand, singularly 
 discrediting parties and attorneys more 
 than all other classes, are dangerous in 
 design and tendency. Great arbitrariness 
 is often observed in settling hills, and 
 while they are the pleadings of an ap- 
 pellant, he is compelled to draft and com- 
 pose it, as is arbitrarily dictated, without 
 the really responsible party disclosing 
 himself. 
 
 Remedy for refusing to settle and sign. 3 
 Bncyc. PI. & Pr. 488-500. 
 
 Too much discretion is allowed, and 
 therefore too much arbitrariness is often 
 shown in settling bills. Rules of court 
 should prescribe the procedure. This may 
 be needless where there are competent 
 and fit judges ; however, the safeguard 
 should exist. 
 
 Amendment of hill of exceptions. Sub, Owen, 
 3 Encyc. PI. & Pr. 501-505. 
 
 Office of. Ell. App. Proc. 214. Consensus. 
 The functions of the bill are analogous 
 to that of pleadings. It is to present a 
 case for review to an appellate court. 
 Ins. Co. : 157 ; Wiebold, 6 Colo. Ap. 451, 
 and to this is applied strictly, Expressio 
 unius, etc. ; Verba generalia, etc. ; Con- 
 sensus ; Hake ; Winter, 10 Colo. Ap. 510. 
 A review may be had upon the record 
 proper and the instructions without the 
 evidence. Seevers, 94 Iowa 75, 58 Am. 
 St. 381, a. ; Windsor : 1. 
 
 A bill of exceptions is only necessary 
 where a review of the evidence is sought. 
 Hume. Errors in the record proper may 
 be reviewed without a bill. Id.; McAllis- 
 ter ; Windsor : 1 : cases. 
 
 Generally. 2 Ell. Prac. 1048-1090 ; Ell. 
 App. Proc. 797-826 ; Jones, Ind. Leg. Per. 
 q. v.; 3 Encyc. PI. & Pr. 374-516 (ex- 
 cellent resume) ; Pow. App. Proc. 209- 
 261. § 53; Convenience, Gr. & Rud. 
 
 290b. MILLER V. BILL (1897), 149 Ind. 
 326, 331, 332, 49 N. E. 272, 210 111. 218, 
 102 Am. St. 158-164. 
 
 Cited, §§ 9, 11, 12, 23, Hughes' Proc. 
 
 General objections insufficient; must be 
 specific. Objections made on the ground 
 that the evidence is "irrelevant," "in- 
 competent" and "immaterial" present no 
 question for review. See § 53 : Conven- 
 ience. Bram v. U. S., 10 Am. Cr. Rep. 
 547, sub, Exceptions and Error ; Rich- 
 ardson, 119 Wis. 141. S. v. Hughes, 19 
 Ind. App. 266 ; Holman, 117 la. 268, 94 
 Am. St. 293, 62 L. R. A. 395. See 
 Shutte, 291 ; Rushton : 5 : cases. 
 
 General objections merely challenge the 
 authority of the court to receive the evi- 
 dence. In a form, a general objection is 
 an ore tenus (general) demurrer. From 
 viewpoints of motions in arrest and col- 
 lateral attack and the conserving principle 
 of procedure, immaterial evidence need' 
 not be excepted to. Such objections and 
 exceptions may be omitted from bills of 
 exceptions. They add nothing where the 
 mandatory record is never waived nor 
 banished. Shutte, 291 ; Frustra probatur. 
 
 Leading Cases. — 290b. Miller. 
 
 The policy of the law is to speed the hear- 
 ing of causes upon their merits and for 
 final ascertainment thereon. Therefore, 
 waivable and dilatory matter is strictly 
 judged. Kraner v. Halsey : 299 ; pp. 8-17, 
 Hughes' Proc. § 53, Gr. & Rud. See 
 Abatement. 
 290c. GRAND TRUNK B. B. V. IVES 
 (1892), 144 U. S. 408, 12 Sup. Ct. Rep. 
 679, 35 L. ed. 485, 6 Am. R. R. & Corp. 
 Rep. 130-159, n„ 210 111. 218, 102 Am. 
 St. 158-164. 
 Exceptions must be apt, specific, certain 
 (McDermott; Harvey: 123) and not after- 
 ward waived, to give the requisite notice 
 of review. Grand Trunk. Such is neces- 
 sary to give jurisdiction. Grand Trunk. § 
 5, Hughes' Proc. See Abatement ; Con- 
 sensus; Montgomery: 292; Hickory: 194. 
 Bill of exceptions should omit irrelevant tes- 
 timony. Only evidence bearing on the 
 errors assigned should be included in a 
 bill. Grand Trunk; Pennock, 2 Pet. 1, 
 15 ; Johnston, 1 Black. 209, 219 ; Keller, 
 4 How. 189, 297; R. R. v. Stewart: 290. 
 When but one conclusion can flow from 
 the evidence, such is a question of law 
 for the court. Grand Trunk; Ad quass- 
 tionem facti, etc. 
 Objections and exceptions must be specific, 
 not general. § 144 U. S. 414-416 ; Van 
 Stone, 142 U. S. 128, 12 Harvey; Mont- 
 gomery: 123, 292. 
 
 Sufficient evidence to sustain a verdict. 
 149 V. S. 413-414. Cf. Citizens R. R : 
 186. 
 
 Lack of sufficient evidence is waivable 
 and therefore must be objected and ex- 
 cepted to. 144 U. S. 114. This rule may 
 well be questioned where all the evidence 
 is set forth, and "the charge is not proved 
 as laid." 
 291. SHUTTE V. THOMPSON 1 (1873), 15 
 Wall. 151, 21 L. ed. 123, Fost. Fed. Prac. 
 287 
 Cited,' p. 22; §§ 2, 5a, 9, 12, 14, 22, 31, 39, 
 51, 104, 143, 166, 168, 173, 177, 303, 
 334, 341, Hughes' Proc. ; cited, §§ 118, 
 167a, 239, 271, 272, 278, Gr. & Rud. 
 Incompetent evidence need not be excepted 
 to. See cases, sub, Rushton, 5 ; Crater ; 
 Tozer, 105 N. T. 659, 876; cited, 156 
 U. S. 58, 2 Am. Crim. Rep. 174 : cases. 
 Frustra probatur quod probatum non rele- 
 vat; Garland: 60; 1 Ell. Ev. 143. 
 An incompetent witness must be aptly ob- 
 jected to; but incompetent evidence may 
 be objected to at any time. Windsor : 1 ; 
 Campbell : 2 ; Winters, 102 Iowa, 53, 63 
 Am. St. 428, n. : cases. Void and in' 
 competent things cannot be waived ; they 
 need not be excepted to. Shutte ; Gar- 
 land ; Salus populi, etc. ; §§ 17, 18, 
 Hughes' Conts. It is held hearsay evi- 
 dence is competent unless excepted to. 
 Schlemmer, 205 U. S. 1. 
 A void mandatory record cannot be waived. 
 Rushton ; R. v. Wheatley, 19 ; Garland ; 
 Campbell. See Theory, and cases sub 
 Rushton ; Hume. Mandatory Record. 
 No allegata, no probata, is the rule. 
 
DATUM POSTS. 
 
 153 
 
 Leading Cases. — 291. Shutte. 
 
 Cooch ; Adams v. Gill ; Paul, 7 Tex. 345 ; 
 Deitsch ; Thomas v. Mackey : 15. Proofs 
 ample, but no allegata; S. P., Borken- 
 hagen : 81 ; Langd. PI. 32 ; Rushton : 5 : 
 cases ; Bradbury : 35. See Harvey : 123 ; 
 Debile fundamentum. 
 
 Immaterial evidence need not be excepted to. 
 Miller : 2906. Allegations are essential 
 for competent evidence. Bristow : 135 ; 
 Langd. PI. 32 (civil law rule) ; Rushton ; 
 Munday : 79 ; Mims, 1 Tex. 443 ; Paul, 7 
 Tex. 338, 345 ; Smith, 13 Tex. 532, 542 ; 
 Rivers, 11 Tex. 662, 670 (must give a 
 defendant notice — Expressio unius s etc.). 
 
 Variance may be waived. Dorn ; See Vari- 
 ance (this view antagonizes Shutte). 
 
 Verdicts and findings cannot supply an 
 omitted allegation. Hitchcock : 12 ; 
 Adams v. Gill. See Aider. 
 
 Prom Shutte much may be deduced, 
 e. g., that without allegata there can be 
 no relevant probata. Bristow ; Saunder- 
 son (citing Iverslie) : 46. That there 
 can be no variance or departures, there- 
 iore pleading must be certain. See Cer-' 
 tainty. The conserving principles of 
 procedure depend upon the above rules. 
 A disregard of these rules introduces a 
 distinctive jurisprudence from that of 
 Rome, England, Massachusetts, New Jer- 
 sey, and Wisconsin. Windsor : 1. 
 Hughes' Proc. 
 
 292. MONTGOMERY V. EDWARDS 
 (1873), 46 Vt. 151, 14 Am. Rep. 618, 
 619 (statute of frauds may be waived ; 
 too late to object after the contract is 
 proved orally). Burrell, 194 U. S. 572.. 
 Only a party to a contract, not a stranger, 
 can raise the defense of the statute. Jor- 
 dan v. Greenboro Co. Cited, p. 14, §§ 7, 
 9, 12, 168, 173, 303, Hughes' Proc. 
 
 Objection to error must be apt. Con- 
 sensus; Grand Trunk R. R. ; Montgomery ; 
 Lough. Delay a waiver. Phelps, 15 How. 
 160 ; Roberts, 6 Wall. 578 ; Alexander, 
 138 U. S. 353 : cases ; Hickory : 194 ; 8 
 Bncyc. PI. & Pr. 156-302 ; 1 Bish. Crim. 
 Proc. 123, 787-804, 1359 ; Lowe, 13 Utah, 
 91, 57 Am. St. 708, n. 
 
 Assent once given cannot be recalled. It is 
 like an election once made ; it is con- 
 clusive. Smith : 156 ; Terry ; Allegans, 
 etc.; S. v. Hope (1889), 100 Mo. 347, 8 
 L. R. A. 608, n. A demand may be waived 
 generally. See Waiver ; Lough ; 293. 
 
 The right to a review in the supreme 
 court of the United States from a state 
 court depends upon exception in the state 
 court. Lamar, 26 Colo. 370., 77 Am. St. 
 261 ; Winona ; Howard v. Fleming ; Hol- 
 man, 117 Iowa, 268, 62 L. R. A. 395 
 (Exceptions must be specific and on true 
 grounds). 
 
 Exceptions must be specific. Harvey : 123 ; 
 Grand Trunk R. R. : 290c; McDermott; 
 Miller ; Kraner : 299. See Abatement. 
 
 hack of apt, timely, proper, objection and 
 exception is waiver. Consensus. When 
 courts hold a matter cannot be raised on 
 appeal, they in effect hold it cannot be 
 raised after it is waived, e. g., if a de- 
 
 Leading Cases. — 292. Montgomery 
 
 mand is required, or other like prerequi- 
 site, and this is not averred, and a party 
 pleads over, and by his plea indicates that 
 a demand or other prerequisite would 
 have been unavailing, he thereby waives 
 the right to such demand. Lex non cogit. 
 See Demand ; Qui tacet, etc. ; Walber, 
 116 Wis. 246. 
 
 If one appears generally, he cannot recall 
 and afterward limit this. See Abatement ; 
 22 111. 19 ; 49 N. Y. 303 ; Rensberger. 
 
 Exceptions are necessary in criminal cases 
 as in civil. Secor v. S. (1903), 118 Wis. 
 621. 
 
 293. LOUGH v. OUTERBRIDGE (1894), 
 143 N. Y. 271, 42 Am. St. 712-724, 38 
 N. E. 292, 25 L. R. A. 674. 
 
 Cited, §§ 12, 65, 174. Hughes' Proc. 
 
 Waiver; consensus. Objection that a sub- 
 ject-matter is of equitable cognizance may 
 be waived. Perego, 163 U. S. 160 ; So. 
 P. R. R. v. U. S., 200 U. S. 341 ; Kissner, 
 189 Mo. 515, 107 Am. St. 368 ; Sto. PI. 
 473 : cases. Benton ; Conemaugh, 186 
 Pa. 443, 65 Am. St. 865, n. ; Kaufman, 
 169 III. 596 ; Clemmer, 157 111. 206 ; 
 Harding, 177 111. 298, 301. See Mont- 
 gomery, 1 Beach, Mod. Eq. Prac. 2-4 ; 
 Sterrett, 122 N. Y. 659-662; Brown, 
 Jurisdic. 197 ; Shutte : 291 ; Nichols, 123 
 Mo. 96, 45 Am. St. 514 (form of plead- 
 ing, and an amendment changing the 
 cause of action, is waived unless objected 
 to). Harrigan, sub, Magna Charta. 
 
 The right to an appeal, for a federal 
 question, from a state to the supreme 
 court of the United States may be waived. 
 Winona ; Windsor : 19. 
 
 294. CONDUCTOR'S BENEFIT ASSO- 
 CIATION v. LEONARD (1897), 166 III. 
 154. Courts during the term may extend 
 time for filing bills of exceptions without 
 notice. 
 
 Appellants are charged with knowledge of 
 the condition of the record. McArthur : 
 99. Rehearings must not include a new 
 case. See Appellate Procedure. 
 Hughes' Proc. 
 
 295. HAND V. WABDELL (1897), 167 
 111. 405. Skeleton bill of exceptions. 
 Hand ; Garrick, 94 111. 588 ; Winters, 102 
 Iowa 53, 66 Am. St. 428 (.Verba relata hoc 
 maxime, etc.). 
 
 Supplemental abstract may be filed by a 
 respondent, and if he fails, then there ap- 
 plies to him "Volenti non fit injuria/' 
 Hand. If one fails to do his duty he is 
 estopped and will not be allowed to com- 
 plain. See Vanderventer v. Goss. 
 
 296. BREWER BREWING CO. v. BOD- 
 DIE (1896), 162 111. 346. 
 
 Cited, § 11, Hughes' Proc. 
 
 Errors not specified in motion for a new 
 trial are waived and waived forever. See 
 Missouri, 40 Mo. Ap. 679 ; 199 Mo. 159 ; 
 Richardson : 230. 
 
 Assignments of error upon grounds which 
 are not specified or claimed in the motion 
 for a new trial will be regarded as waived. 
 Brewer ; West Chicago R. R., 168 111. 
 586 ; Singer, 150 Ind. 287 ; Zimmerman, 
 152 Ind. 552 : cases. Exception matter 
 
154 
 
 DATUM POSTS. 
 
 Leading Cases. — 296. Brewing Co. 
 
 must be saved by objection, exception, 
 motion for new trial and assignment of 
 errors. § 53 ; Convenience ; S. v. Dilts, 
 191 Mo. 665; St. Louis, 189 Mo. 474. 
 Kraner : 299. Must be argued. Atlan- 
 tic ; 35 Ind. Ap. 281, 111 Am. St. 163. 
 Of course fatal defects in the manda- 
 tory record are not waivable in character, 
 and therefore may be raised .at any time 
 and in any way ; courts will sua sponte 
 notice these. Garland : 69 ; Windsor : 1 ; 
 cases ; Bloom. 
 General assignments of error unavailing. 
 Brewer Co.; West Chicago R. R., supra; 
 Brown v. P. ; Winona ; Harvey : 123 ; Citi- 
 zen's : 186 ; 3 Cent. Dig. 855-860 : cases. 
 A chain of errors may be waived by 
 failure to make the proper statement in 
 the motion for a new trial. If jurors are 
 illegally selected, not only must objection 
 be made to each error, but the jury as 
 a whole must be objected to. Beyond 
 these, one must properly assign error, 
 and still beyond this he must argue it, 
 else such abandonment is a waiver. Con- 
 sensus. 
 
 297. GARLAND v. WHOLEBATT (1866), 
 20 Iowa, 271. See Theory of the Case ; 
 Allegans contraria, etc. Cited, § 186, 
 Hughes' Proc. 
 
 One cannot change the theory of his case 
 upon appeal. Wagner, sub, Theory op 
 .the Case ; Rivard, sub, Marbury : 1-12 ; 
 Lough: 292. 
 
 It cannot be "fish, flesh or fowl." Ke- 
 waunee : 29 (record proper controls). 
 
 Theory of the case controls mandatory 
 record. Bailey v. Hornthal. See Kewau- 
 nee ; McLaughlin : 31. 
 
 One cannot change his base on appeal. Gar- 
 land : Mateer, 1 Cal. 221 ; 7 Mor. Min. 
 Rep. 156 ; Callaway, 15 Ind. Ap. 366, 57 
 Am. St. 238 ; Bailey v. Hornthal ; Parrish, 
 12 S. Dak. 278, 76 Am. St. 604, n. ; 
 Baily: 44. 
 
 Stability of procedure essential. Notes to 
 Cutter: 308. 
 
 This case must be considered in con- 
 nection with limitations of Consensus; 
 and Garland, Campbell, Windsor; Allegans 
 contraria, etc. 
 
 298. BARROW v. HILL (1851), 13 How. 
 U. S. 54, 14 L. ed. 54, n. ; 120 Ga. 67, 102 
 Am. St. 71. Clyde Mattox. Cited, § 256, 
 Gr. & Rud. 
 
 Discretion as an element in procedure de- 
 serves careful consideration. What is a 
 matter of discretion with a court is not 
 reviewable for error, unless it is an abuse 
 of discretion. Here is a most important 
 rule in appellate procedure ; for the rule 
 is, "a court of appellate jurisdiction only" 
 will not review and reverse matters of 
 discretion. Barrow. But abuse of discre- 
 tion is a ground of review. Ell. App. 
 Proc. 603-606 ; 2 Encyc. PI. & Pr. 409- 
 420 : cases, 7 Encyc. PI. & Pr. 844. 
 Be minimis. 
 
 The following maxims introduce matters 
 of the greatest concern to the practi- 
 tioner : Optima est lex qum minimum re- 
 
 Leading Cases. — 298. Barrow. 
 
 linquit arbitrio judicis. Optimus judex* 
 qui minimum sibi: That system of law 
 is best which confides as little as possible 
 to the discretion of the judge. That judge 
 is best who relies as little as possible 
 on his own opinion. Bro. Max. 84. Lex 
 non exacte definit. The law does not 
 define exactly, but trusts in the judg- 
 ment of a good man. 1 Bl. Com. 62, 
 431, 1 Kent, 448. See Statute ; Scire 
 leges, etc. ; Cujus est instituere, etc. ; 
 Boni judices est ampliare jurisdictionem : 
 It is the duty of a judge, when requisite, 
 to amplify the limits of his jurisdiction. 
 Bro. Max. 79-84. Equal and uniform law 
 should guide judicial action. Bro. Max. 
 84. 
 
 Equity now pervades every subject of the 
 law; its influence affects nearly every 
 proceeding, as reference to the great 
 volumes on Equity and Injunctions will 
 attest. See Equity ; Maxims. Hughes' 
 Proc. In these fields, and in practice, the 
 domain of discretion is largest. It is 
 very large in granting or denying injunc- 
 tive relief. Sub, Dinehart ; 1 Beach. Inj. 
 121. The subject of Laches indicates the 
 results of a liberal application of dis- 
 cretion. Vigilantibus, etc. 
 
 Refusal to continue a cause is not reviewable 
 for error. De minimis, etc. Rebuttal tes- 
 timony may include new matter, new evi- 
 dence, after final argument. (Wells, 
 Quest. Law and Fact, 792). The order of 
 proof, recalling of witnesses, number of 
 witnesses and like matters are matters of 
 discretion. C. v. Kane: 183. 
 
 It is matter of discretion to allow one 
 to reopen a case, and to receive more tes- 
 timony after argument and submission. 
 Rogers v. Miller (1895), 13 Wash. 82, 
 32 Am. St. 20; Powell, 101 Ga. 9, 65 
 Am. St. 276 ; Wells, Quest. Law and 
 Fact, 792. A defective certificate to 
 evidence may be corrected, after trial, 
 and trial may proceed upon condition that 
 formal defects will be cured before judg- 
 ment. Hutchins, 52 N. H. 202, 13 Am. 
 Rep. 19-32. Cumulative evidence ; its ad- 
 mission is discretionary. S. v. Stowe 
 (1891), 3 Wash. 206, 14 L. R. A. 609. 
 Issues ; directing special, also. Denver, 
 etc. Co., 21 Colo. 371, 31 L. R. A. 566. 
 
 Motions in practice to correct pleadings 
 (P. v. McCumber : 33), are addressed to 
 the discretion of the court, and, unless a 
 gross abuse, will not be reversed. 6 
 Encyc. PI. & P. 280. This rule renders 
 many sections of the code, many funda- 
 mental rules, merely commendatory, and 
 this in many cases is most regrettable 
 for reasons in res adjudicata rules, and 
 as may be gathered from 1 Gr. Ev. 63, 
 2 id. 7 ; 3 id. 10 ; Bell v. Brown ; Lea ; 
 30 ; P. v. McCumber. Motions to make 
 certain are often of great consequence. 
 Lea; Wright: 28. 
 
 Discretion. 1 Bish. Crim. Proc. 6, 10, 12 ; 
 6 Encyc. PI. & Pr. 810-822 ; Knox, 1 Wis. 
 70. De minimis. 
 
DATUM POSTS. 
 
 155 
 
 Leading Cases. — 
 
 299. KKA3STEK, V. HALSEY (1889), 82 
 Cal. 209, 22 Pac. 1137, S. P. Wilhoit 
 (1891), 87 Cal. 453; Greenbaum, 102 Cal. 
 624 ; Donnell, 13 Ala. 490, 48 Am. Deo. 
 59, 66 (motions must be definite, certain) ; 
 6 Bncyo. PI. & Pr. 273, 274, And. Steph. 
 PI. § 107 (Tyl. Ed. 159). Cited, p. 14 
 §§ 8, 25, 122, 195, 251, 259, 320, 321, 
 324, Hughes' Proc. Cited, §§ 103, 235, 
 272, 278, Gr. & Rud. 
 
 Dilatory pleadings must be certain. De- 
 murrer to a complaint specifying that it 
 is "ambiguous, unintelligible and uncer- 
 tain" will fail. 
 
 Exception matter in all relations must be 
 presented with formality and precision. 
 See Bill of Exceptions : 199 Mo. 386, 716. 
 Consensus tollit errorem. The following 
 quotation will illustrate : 
 
 "III. The next assignment of errors is that 
 the court erred in not sustaining the de- 
 fendant's motion for a new trial, because 
 the verdict was manifestly against the 
 weight and preponderance of the evidence ; 
 against instructions of the court ; exces- 
 sive, and manifestly the result of pas- 
 sion and sympathy, and was not a fair 
 application of the law to the facts : We 
 take occasion also to say that this is not 
 an apt way to assign errors. Several sup- 
 posed errors are here thrown together into 
 one general assignment. To the whole 
 paragraph, seven cases are cited ; but to 
 which supposed error each case is cited, 
 we cannot tell without examining all of 
 the cases. An assignment of errors is in 
 the nature of a pleading. * * * But 
 when errors are so assigned, in order to 
 aid the court in its examination of them, 
 each supposed error should be separately 
 assigned, and cases should not be cited en 
 masse to a collection of assignments of 
 error, but the cases to which counsel ask 
 the attention of the court in connection 
 with each assignment, should be cited to 
 that assignment." Honeycutt v. R. R. 
 (1890), 40 Mo. Ap. 674; Brewer: 296. 
 The objection and the exception must 
 be stated with precision and consistently 
 and continuously relied upon. Cunning- 
 ham v. Springer, 204 U. S. 647. Expressio 
 unius. 
 
 Formal functions of the statutory record. 
 Planing: 2d. Pennowfski (1907), — Mo. 
 — , 103 S. W. 542 (very instructive case). 
 Expressio unius. 
 
 The requirement for the certain plead- 
 ing, the certain description pervades Pro- 
 cedure throughout. In substantial plead- 
 ings the requirement 'is discoverable in 
 Fabula non judicium. Graver : 103. In 
 dilatory and abatement pleadings it is 
 discoverable in convenience (§ 53), and 
 duty to the due administration of the laws. 
 See Allegans; Consensus. A party owes 
 a duty to the adverse side, and the course 
 of justice to be certain, specific and thus 
 helpful to the trial court and to the 
 court of review. The decisions show that 
 the reasoning for the requirement of cer- 
 tainty is sometimes for the adverse side, 
 sometimes for the trial court, and often 
 for the court of errors, § 53 ; Convenience, 
 Gr. & Rud. In several of the states from 
 
 Leading Cases. — 299. Kraner. 
 
 their hundreds of volumes, decisions are 
 found requiring certainty for any one 
 or all of those grounds, as the case may 
 be. Sometimes the conclusions amount to 
 this that there need be no certainty at 
 all ; sometimes it appears that any ob- 
 jection is a sufficient motion for a new 
 trial, or for an assignment of errors. 
 
 The motion for a new trial is the last 
 stage for gathering and presenting ex- 
 ception matter. Thus its importance is 
 perceivable ; § 53 ; Convenience, Gr. & 
 Rud. ; 199, Mo. 159 ; of course it relates 
 to the statutory record. Whatever error 
 is shown from the mandatory record, may 
 be gathered and presented in the motion 
 in arrest. Naturally it belongs to the 
 mandatory record. However, this view 
 is not consistently maintained ; 199 Mo. 
 159, 'Hitchcock: 12. 
 
 The motion for a new trial is essential 
 for exception matter, also the statutory 
 record. Jennings, 105 Mo. 677. All that 
 relate to these must affirmatively appear. 
 Fast, 105 Mo. Ap. 694 ; Dovaston. 
 
 The motion, the record and the assign- 
 ment of errors are jurisdictional. With- 
 out them a court has no power to act 
 upon the statutory record matter. Be non 
 apparentibus. 105 Mo. Ap. 694,' 696. 
 
 Error must be made to affirmatively ap- 
 pear. Verba fortius. Mercantile, 205 
 U. S. 298, unless the complaint is bad for 
 each fault so enumerated. Expressio 
 unius; Miller v. Dill; Cruikshank. See 
 Abatement. 199 Mo. 386, 716. 
 The rudiments of all pleadings are alike, 
 and to illustrate this fact we frequently 
 refer to the rationale of Kraner, which 
 requires that dilatory pleadings be accu- 
 rately described. It is a very instructive 
 case, and well presents that idea. See 
 Abatement ; Montgomery ; Lough ; Omne 
 majus, etc. ; Surplusage ; In conjunctivis. 
 
 Special de'murrers both express and de- 
 fine objections. Positive definition essen- 
 tial. Sto. PI. 457, And. Steph. PI. 107; 
 Bissell : 42 ; Canfield, 31 Colo. 292. See 
 Abatement. 
 
 Courts will not look for formal faults, 
 nor correct nor make cases for parties. 
 Sto. PI. 457. Ignorantia legis neminem 
 excusat. 
 The law favors waiver of what can be 
 waived — of what is not mandatory. Con- 
 sequent waiver of dilatory matter results 
 unless it is described. This is a conserv- 
 ing principle of procedure ; § 103, Gr. & 
 Rud. Every presumption is against the 
 pleader. Dovaston : 217 ; 190 U. S. 544 ; 
 Montgomery : 292 ; 40 Mo. Ap. 674. 
 
 Examples of strict construction of 
 pleadings are found in Dovaston, also in 
 190 U. S. 546 and in Kraner. 
 Codes are construed to advance the conserv- 
 ing principles of procedure. Kraner is 
 construed exactly as Lord Kenyon con- 
 strued in Roberts v. Moon. See Abate- 
 ment; Myers (code): 150. 
 
.156 
 
 DATUM POSTS. 
 
 Leading Cases.- 
 
 300. WACO WATER & LIGHT CO. T. 
 
 WACO (1894), 86 Tax. 661, L. R. A. 
 393-397, ext. n. Cited, § 12, Hughes' Proo. 
 
 Certification of questions for review. "The 
 very question to be decided" does not sat- 
 isfy the statute by presenting a certificate 
 of the question whether or not a demurrer 
 should be sustained to plaintiff's petition. 
 
 The statement of facts should be ultimate 
 facts, and should be clear, certain, single, 
 precise and exact. Jewell, 123 U. S. 432 ; 
 §§ 650, 652, 693, R. S. U. S. 
 
 The practice originated in federal pro- 
 cedure, and has been adopted by many 
 of the states. §§ 19, 40, Magna Charta. 
 The idea is certainly an excellent one, and 
 should be favored. But any practice act 
 may be made odious and useless by hostile 
 construction arising either from strictness 
 or laxity. Boni judicis, etc. Certificate 
 of doubt. 3 Encyc. PI. & Pr. 914-917. 
 Certified cases. 3 Encyc. PI. & Pr. 914- 
 956 ; § 19, Magna Charta : 
 
 "19. Judicial sittings of assizes to con- 
 tinue until business is completed" (jus- 
 tice to be administered without sale, de- 
 nial or delay). 
 
 The framers of the American constitu- 
 tion no doubt had this section in mind ; it 
 is generally incorporated and frequently 
 disregarded ; the delay of courts is often 
 an obstruction — indeed a denial of justice. 
 Courts often aggravate what they are in- 
 tended to cure. Nothing is a more fruit- 
 ful cause of disaffection towards govern- 
 
 Leading Gases. — 300. Waco W. Go. 
 
 ment than the abuse which led to the in- 
 corporation of this section in the Great 
 Charter. Disregard of it is also one of 
 the grounds specified in the Declaration 
 of American Independence. Various wise 
 enactments have been from time to time 
 adopted that such provisions may be ef- 
 fectual. Cases made on appeal are statu- 
 tory provisions for a speedy, direct and 
 cheap review. 3 ' Encyc. PI. & Pr. 880- 
 909. Certificate of doubt, a speedy rem- 
 edy. 3 Id. 914-917. Certified cases, like- 
 wise. Waco; 3 Id. 914-956. 
 
 "§ 40 : To none will we sell, to none 
 will we deny or delay right or justice. 
 (See § 19, supra. "Justice shall be ad- 
 ministered without sale, denial or delay." 
 Nulla vendemus. 
 
 This section is permissive of a fee sys- 
 tem. Henderson, 137 Ind. 552, 24 L. R. 
 A. 469. Harrigan, sub, Magna Chabta. 
 Courts shall be kept open, and justice shall 
 be administered freely. S. Rogers, 107 
 Ala. 444, 32 L. R. A. 520, n. 
 
 The fee system is much abused in some 
 states, and fees are exacted and collected, 
 forming a revenue far beyond the ex- 
 penses- of the court, and forming a fund 
 of prey and peculation by clerks, and 
 these, too often, the appointees of the 
 judges. Such a tax is unwarranted and 
 such spoliations constitute grave shadows 
 over statesmanship and official integrity. 
 Keech. 
 
 Jurisprudence, from the Roman maxims, has been an inestimable boon to 
 "humanity. It interceded at the crucifixion and superseded in Paul's trial. It 
 has wrought the greatest blessings for the Western world; it has elevated and 
 enlightened the Caucasian of Europe, and has made him the administrator of 
 «arth. To him, oppressed humanity looks and appeals. The black slave, car- 
 ried to a foreign shore, made his supplication to the Great Jurist of the ages, 
 whose judgment is well stated in the language of the poet: 
 
 "The air of England is too free for a slave to breathe." 
 
 From the buds of the Roman and of the Norman, have burst forth a new 
 ■dispensation, for woman, infant, slave, the weak and the defenceless. This law 
 was foretold by Paul and by Bacon; these great law-givers languished in prison 
 and in oppression. Bach advocated the same jurisprudence the maxims of 
 which forbid delay. The Barons forced the King to stipulate that when his 
 judge did not hold court and dispose of awaiting cases then the Barons 
 present might select one of their number to act as judge pro hoc vice who 
 should sit and fully serve the public demands. The wisdom of Magna Charta 
 might well be followed by all governments. 
 
 Delays of justice in American courts have long called for Justitia's sons 
 to rise and speak as they did in former ages. If those charged with govern- 
 ment, in the highest places, constantly violate fundamental principles of the 
 prescriptive constitution, re-expressed in written constitutions, sooner or later 
 the restless enemies of law and order will point to the flagrant delictions of 
 the high and mighty, as justification for rude and savage attacks resenting 
 insult, mockery, injustice and of course palpable injury. The law has its 
 lights and its shades; its triumphs and its defeats. It is greatly shadowed by 
 procrastination. A speedy injustice is often to be preferred to a tardy justice. 
 It is an important question before every government whether or not it can 
 properly discharge its guarantees. 
 
 How obligations are viewed among individuals, will be indicated in these 
 concluding pages. 
 
DATUM POSTS. 
 
 157 
 
 The Contract Cases where they are reported, cited and discussed. 
 
 The following cases will introduce the elements of contract, namely, 
 the assent (Non hose in fcedera veni: I did not come into this compact) ; the 
 consideration {Ex nudo pacto non oritur actio: No cause of action arises 
 from a bare agreement) ; the legality (In pari delicto potior est conditio 
 ■defendentis) ; certainty its elements and requirements; evidence required to 
 prove, by the statute of frauds. 
 
 Familiarity with the cases pointed to will greatly aid in the mastery of 
 •contract, and cognate subjects. 
 
 It is sought to show that all of the excellent contract works are written 
 from the "land-mark" cases, and that these merely illustrate the application 
 of maxims and fundamental rules. 
 
 Leading Cases. — 
 
 301. LAMPLEIGH V. BBATHWAH 
 (Braithwait or Brathwaite) (1613), Hob. 
 105. 1 Smith, L. C. 267, 141-172, 11th 
 ed. (reviewing English cases) ; Finch Cas. 
 342. 1 Add. 11, 33, 2 id. 847, 1 Beach, 
 659, Bish. 91, Chit. 34, 69, 70, Ans. 92- 
 94, 99, Clark 198, 199, Hughes, 1, 21, 71, 
 72, 76, Hare, Harriman, Hilliard, Holling- 
 worth, Laws. 108 Leake. 8, 37, Metcalf, 
 Langd. Cas. 413. Keener Sel. Cas. 477, 
 Pollock 12, 170, Smith, 96, Sto., Whart., 
 2 Kent, 464, Bro. Max. 746, 756, 39 Am. 
 St. 735-746, 9 Cyc. 359, 360; note to 
 Beaumont : 367 ; 6 H. R. 70 ; note to Wen- 
 nail v. Adney, 6 R. R. 782, sub, Beaumont 
 (a moral consideration will not support 
 either an express or an implied promise. 
 Mills: 316 ; Cook: 314). 
 
 ■Cited, pp. 26, 37, 38 ; §§ 4, 15, 22, 29, 30, 
 Hughes' Proc. ; §§ 223, 237, 283, 313, 
 Gr. & Rud. 
 
 Lampleigh stated: Lampleigh was convicted 
 capitally. Believing he would be executed 
 unless pardoned he requested Brathwait to 
 journey to London and to intercede the 
 crown for a pardon. Moved by L.'s re- 
 quest, but without expectation or promise 
 of pay for his services, B. went to London 
 and obtained a pardon. After the services 
 were so rendered L. promised to pay B. 
 £500 for what he did. Afterwards B. sued 
 upon this promise and recovered, upon 
 that very important rule, that a previous 
 request followed by a subsequent promise 
 will constitute a contract and support an 
 action. The consideration did not move 
 as a gratuity, as charity, but ' at the re- 
 quest of B. It arose in L.'s head, not in 
 B.'s. Had the pardon been obtained with- 
 out request, then the promise to pay for 
 it would not have been supported. Then 
 it would have been a nude pact. This dis- 
 tinction is important as it will appear 
 from the cases of Cook and Mills, which 
 follow. These cases should be collectively 
 considered. 
 
 The next case, Bartholomew, is presented 
 in antithesis to Lampleigh. One is "a 
 cause of action," but the other is not. The 
 distinctions are important and should be 
 understood. They are the groundwork of 
 leading and important rules, which are 
 ■inseparably interwoven with Procedure. 
 This proposition should be understood, 
 white: 17; Beaumont: 367. 
 
 Throughout contracts the rule is, that he 
 who parts with no consideration for a 
 promise is not a wronged party by its 
 
 Leading Cases. — 301. Lampleigh. 
 
 breach, and therefore he cannot recover 
 upon the promise. Courts were not created 
 and invested with jurisdiction to enforce 
 charity — gratuities — nor to punish those 
 who will not keep their word, unless they 
 wrong a promisee. Now, to describe his 
 wrong the wronged person must allege a 
 consideration, because unless he parted 
 with an adequate consideration he has no 
 cause of action. This view is well ex- 
 pressed in that well known maxim, Ex 
 nudo pacto non oritur actio. This suggests 
 Procedure, while it is a fundamental rule 
 in Contract law. The relationship of the 
 consideration to the "cause of action" is 
 intimate, and should be so presented. A 
 right understanding of the consideration 
 involves a comprehension of the "cause of 
 action." The latter is always a question 
 of procedure. Hughes' Conts. § 68-78. 
 Keeping this fact in view simplifies great 
 and extended discussions. See Two Cen- 
 turies Growth of Am. Law (A. D. 1902), 
 67-69 ; Ex nudo pacto non oritur actio. 
 
 Consideration. A past consideration to sup- 
 port a promise must have been moved by 
 a previous request. Lampleigh ; Mech. 
 Ag. 600 ; Bulkley : 322 ; 39 Am. St. 742. 
 
 Voluntary services, if moved by a previous 
 request, will support a subsequent prom- 
 ise. Lampleigh ; Bartholomew ; Mills : 
 316 ; Vadakin : 11 ; Depeau ; Hogins : 
 379 ; Cumber : 311 ; Rann : 312 ; Hitch- 
 cock v. Galveston ; Lycoming v. Union ; 
 Comptoh v. Jones. 
 
 Otherwise the promise if made is a 
 nude pact. Lampleigh. 
 
 Time of consideration, generally. 1 Chit. 
 Conts. 69-74, 39 Am. St. 740 ; Atkins v. 
 Banwell, 2 Bast, 505, sub, Beaumont (in- 
 structive case), 2 Gr. Bv., §§ 107, 114. 
 
 To illustrate it is observed that direc- 
 tors of a corporation can only claim com- 
 pensation for their services when per- 
 formed with the understanding that they 
 should be given. Wood: 23 Or. 20, 37 
 Am. St. 651, n. ; Boston Ice Co. : 320. 
 
 There are technical relations of con- 
 tracts to other subjects that should be 
 well understood. Some of these will next 
 be referred to. 
 
 Important observation relating to procedure. 
 Between Lampleigh and Bartholomew is 
 discoverable the reason why a pleader 
 must aver in many assumpsit suits that 
 
158 
 
 DATUM POSTS. 
 
 Leading Cases. — 301. Lampleigh. 
 
 the consideration moved at the promisor's 
 "instance and request." Bro. Max. 764. 
 Cf. 2 Langd. Conts. 1038, 1069. Now, if 
 we omit those words we have Bartholo- 
 mew, szid under the rule in Rushton : 5 
 no wrong is described, and hence the 
 jurisdiction of the court cannot attach to 
 such a subject-matter. In the language 
 of courts, there is an omitted allegation. 
 Moore : 21 : cases ; Cruikshank : 232 : 
 cases. Sto. PL 10. And the same phase 
 arises in a comparison of Chandelor and 
 Pasley : 374, 375 ; Home, sub, Chester- 
 field ; Beaumont: 367. 
 
 A little reflection on the above question 
 will indicate its effect in the statement of 
 a wrong. From it the great field of pro- 
 cedure is brought into view, and why 
 there must be pleadings (Campbell: 2; 
 Tarble : 247), and why they ought to be 
 true. Cutter : 308 ; Beaumont ; White : 17. 
 
 It must be alleged that the consideration 
 moved at the defendant's instance and re- 
 quest. Oliver v. "Wood (1693), 2 Levinz, 
 366, 1 Langd. Cas. Conts. 419 ; Hays v. 
 Warren (1732), 2 Strange, 933, 2 Bar- 
 nard, 711, 1 Langd. Cas. Conts. 420 (ev- 
 ery presumption is against a pleader. Do- 
 vaston: 217). Verba fortius, etc. 
 
 From the standpoint here presented, the 
 rules in Rushton, R. v. Wheatley : 19, and 
 J'Anson : 91, are well introduced; and 
 why these are imperative in their demand 
 that the statement present a cause of ac- 
 tion, or the answer a ground of defense ; 
 and if they fail, why the general demurrer 
 by some name and in some form, even by 
 the name of "motion in arrest" (Cooke v. 
 Oxley, 321) or "collateral attack," will 
 search the whole foundation of the judg- 
 ment and attach to the first fault. Wind- 
 sor; Beaumont. Debile fundamentum. 
 
 The importance of distinction between 
 the Lampleigh and Bartholomew cases may 
 be suggested thus : If a recovery were 
 allowed in the Bartholomew case and it 
 was not alleged in the statement that the 
 consideration moved "at the defendant's 
 instance and request," and an execution 
 had issued and been levied, a sale of land 
 had thereunder and a sheriff's deed found- 
 ed thereon, would the proceedings be sub- 
 ject to collateral attack? Beaumont. If 
 they are, then no title passed. Here is a 
 phase of great importance, and a point of 
 easy acquisition from the standpoint af- 
 forded from those two cases. For this, 
 let us add here, society was first formed 
 to primarily protect property, secure its 
 title and devolution according to the 
 wishes of its owner. For all this, the 
 first covenant and compact was that life, 
 liberty and property could only be taken 
 according to "due process of law," and 
 this required a definite and certain theory 
 of procedure, the rules of which were 
 called "the laws of the land." That orig- 
 inal compact is found in great charters, 
 in constitutions and bills of rights. It 
 should always be construed alike. Con- 
 
 Leading Cases. — 301. Lampleigh. 
 
 temporanea exposito, etc. Now, if one's 
 land is sold or his rights divested before 
 he is shown to be a delict by sufficient 
 allegations, then such proceedings are ever 
 open to collateral attack ; they are never 
 cured. Quod ab initio non valet, intractu 
 temporis non convalescit. 
 
 A title founded on proceedings open to col- 
 lateral attach may be assailed by any one 
 at any time. Wirfdsor ; Walker : 118 ; 
 Ransom : 122 ; Pennoyer : 58 ; Deputron : 
 121 ; Iverslie ; 46 ; De non apparentibus- 
 et non existentibus eadem est ratio; Rush- 
 ton : 5 ; R. v. Wheatley : 19 ; Sto. PI. 10 ; 
 Bro. Max. 180, 182, 715. In the cases last 
 cited are found illustrations of what are 
 called coram non judice proceedings. 
 
 If a pleading sets forth a Bartholomew 
 Case instead of a Lampleigh Case, and it 
 omitted the allegation, "at the defendant's 
 instance and request," then no deliction 
 is shown. Jurisdictional facts are never 
 presumed nor supplied by favor. Hannah : 
 128 ; Cruikshank : 232 ; Dovaston : 217 ; 
 Beaumont :. 367. Every presumption is 
 against a pleader from start to finish, 
 from the time the record is first opened, 
 even to and inclusive of appellate proceed- 
 ings, and especially upon questions of con- 
 structive notice and of res adjudicata. As 
 we start, we continue at all times and 
 forever. There are not two standards of 
 construction nor stages of variant con- 
 struction. The texts are always the same. 
 Chitty seems to prefer this rule. 1 Chit. 
 PI. 239, 681 ; Wade on notice, 1401 ; See 
 Allegations ; Cause of Action. Where- 
 no deliction is averred in the pleadings 
 none will be presumed, for all men are 
 presumed innocent until the contrary is 
 alleged and proved. Accordingly the rule 
 is that, every presumption is against a 
 pleader. Dovaston : 217 ; Verba fortius; 
 Beaumont : 367 ; Hannah : 128 : cases. 
 
 Omission of a necessary allegation is a 
 ground for general demurrer, also a mo- 
 tion in arrest of judgment. The ground 
 for the general demurrer is never waived, 
 and codes expressly so provide. Filing an 
 answer will not waive that. The general 
 demurrer searches the whole record and 
 attaches to the first substantial fault, and 
 this rule means what it says. From the 
 doctrines of collateral attack all may be 
 deduced. And from it, no doubt, a Bar- 
 tholomew Case, if honestly pleaded, would 
 never support an execution or a deed 
 founded thereon. In proving title upon a 
 judgment there must be produced its en- 
 tire record, pleadings, all, and the execu- 
 tion, levy, sale and sheriff's deed. Clem 
 v. Meserole ; Windsor : 1. Here again is 
 shown how the original covenant of so- 
 ciety is guarded and protected. Jurisdic- 
 tional facts must properly be shown of 
 record to authorize a court to proceed. 
 Until they so appear, all buy charged 
 with a notice of the defect. Caveat emptor. 
 
 Pleadings are to give constructive notice. 
 Constructive notice is one of the conserv- 
 
DATUM POSTS. 
 
 159 
 
 Leading Cases. — 301. Lampleigh. 
 
 ing principles of procedure. All are 
 charged with notice imparted from a rec- 
 ord divesting an owner of his property, 
 and they buy caveat emptor, which is the 
 monitor of collateral attack. See Con- 
 structive Notice ; Collateral Attack. 
 In the above is introduced a great uni- 
 versal, fundamental principle of procedure, 
 equally applicable to all systems alike. 
 De non apparentibus, etc. A right com- 
 prehension of it will greatly aid through- 
 out procedure, and show how great rules 
 of construction are sometimes rules of 
 pleading. Verba fortius accipiuntur con- 
 tra proferentem ; Dovaston ; Beaumont : 
 367 (instructive case). 
 
 And let us further observe that to aver 
 the Bartholomew a Lampleigh Case is to 
 charge a wrong by means of a false plead- 
 ing ; and this is immoral, is a contempt, 
 and in sound law confers no jurisdiction. 
 Wonderly : 102 ; Graver : 103 ; S. v. 
 Baughman, 268 ; Leges non verbis sed 
 rebus sunt imposito; Ex dolo malo non 
 oritur actio. Such abuse of the right to 
 sue in the courts constitutes a malicious 
 prosecution in many states. McCardle. 
 
 The rules of procedure lie at the base 'of the 
 law of contract. An instance illustrating 
 that fact may be found in discussions* that 
 relate to each of these subjects, i. e., when 
 a request and when a promise will be im- 
 plied. Smith, Conts. 197-204. Phases of 
 these discussions contribute to the action 
 of money had and received. The prin- 
 ciples in Lampleigh and Boston Ice Co. 
 are made as prominent as is possible in 
 this work. 
 
 The heart and vitals of a contract lie 
 around two leading -ideas, namely, Ex 
 nudo facto non oritur actio, and non hwc 
 in fmdera veni. These elements will have 
 all possible attention in the following 
 cases, as well as the other elements men- 
 tioned in the definition of contracts. See 
 Contracts. 
 
 302. BARTHOLOMEW V. JACKSON 
 (1822), 20 Johns. 28, 11 Am. Dec. 237, 
 Huff. Conts. 14; stated, Keener, Quasi 
 Conts. 354-356, Ans. 80, 92, n., Laws. 13, 
 14, 36, 37, 100, 108, Wharf, 22, 494, 507, 
 Clark, Hare, Harriman, Metcalf, Pollock, 
 Story, Ham. 38, 53, 325, 1 Pars. 462, 2 
 id 50, 61, 104, 1 Chit. 34, 2 id.. 797, 
 824 ; §§ 1, 71, 72, Hughes ; 2 Page 776, 
 9 Cyc. 358 ; Mech. Ag. 600, Whart. 372, 
 Huffc, Tiffany, Ag., Bro. Max. 746. And. 
 Steph. PI. 215, 640, And. Am. Law, 749. 
 
 Cited, §§ 15, 22, Hughes' Proc. ; §§ 63, 164, 
 281, Gr. & Rud. 
 
 Bartholomew stated; In Jackson's field was 
 a stack of Bartholomew's wheat which he 
 had promised to remove by a certain day 
 so that Jackson might burn the stubble. 
 Jackson waited until after the time fixed, 
 then fired the stubble. The flames ap- 
 proached Bartholomew's wheat, and he 
 failing to appear to remove it, Jackson, 
 without request but gratuitously and vol- 
 untarily — of his own motion — hauled it 
 beyond the reach of the fire. Held, that 
 as the act was without the privity or as- 
 
 Leading Cases. — 302. Barth'mew. 
 
 sent of B. # J. could not recover for it. 
 Assent (mutuality) is essential for a con- 
 tract. One is not liable for services ren- 
 dered without his request. Non hwc in 
 fmdera veni. Boston Ice Co. 320 ; Lamp- 
 leigh : 301. 
 
 Had a note been given by Jackson for 
 having saved the wheat it would have 
 been without consideration and of no legal 
 effect whatever. Ex nudo pacto. Dear- 
 born, 3 Met. 155 ; Smith, Conts. 195 ; Ans. 
 Conts. 93 ; Lampleigh. Jackson recovered 
 50 cents in the trial court, but B. appealed 
 to the supreme court, then presided over 
 by Chancellor Kent, where the cause was 
 reversed (notwithstanding the small 
 amount involved. De minimis non curat 
 lex is not of universal application) . 
 
 An equitable consideration will support a 
 promise to pay, e. g., a debt barred by the 
 statute of limitations, or by a discharge 
 in bankruptcy. Trueman. A promise to 
 pay must be expressed or implied. Bar- 
 tholomew. 
 
 Benefits (gratuities) conferred never consti- 
 tute a contract. Smout ; Boston Ice Co. 
 320 ; Lampleigh : 301, 1 Mech. Ag. 600 ; 
 Abel: 34. 
 
 Spontaneous and unasked service will not 
 support assumpsit. Woods, 39 Mich. 345, 
 33 Am. Rep. 396 ; note, 28 Am. St. 570 ; 
 Bulkley : 315. A note given for such serv- 
 ices is without consideration. Dearborn, 
 supra. Nor money received by a town 
 upon void bonds. Merrill, 138 U, S. 673, 
 q. v. Illustration. A publisher of town 
 ordinances without authority cannot re- 
 cover therefor, although the services were 
 beneficial and were accepted and appro- 
 priated. Thornton, 38 Mich. 639 ; Clark, 
 Conts. 17 ; Mills : 316 ; Hughes' Conts. 73 ; 
 Smith, 195. See Ultra vires : cases ; Salt 
 Lake v. Hollister : cases. 
 
 Publishers cannot create a contract by send- 
 ing a newspaper to one. Sub, Cooke : 321. 
 Non htsCj etc. 
 
 Consideration. Gratuitous or volunteer serv- 
 ices not moved by a previous request are 
 never the basis of recovery. No wrong 
 arises from such premises. 
 
 Lampleigh ; Mills ; Boston Ice Co. ; Cum- 
 ber ; Bainbridge : 332 : Bulkley ; Beau- 
 mont : 367 : cases. 
 
 Payment by a volunteer gives him no right; 
 he is not subrogated. People & Drovers' 
 Bk., 63 Ohio, 374, 52 L. R. A. 872. 
 
 Contracts cannot be enforced upon persons 
 against consent. That would be tyranny. 
 A trespasser cannot plead the benefits of 
 his trespass ; if he could, he would estab- 
 lish a contract by a wrong. Bull. A tres- 
 passer building on the land of another 
 loses his improvements. Bright. These 
 well-known rules accord with the rationale 
 in Bartholomew. It should be well com- 
 prehended. 
 
 303. WHITE V. COBLIES (1871), 46 
 N. Y. 467, Williston, Conts. 512, Huff. & 
 W. Conts. 50 ; Wambaugh, Study Cas. 
 113 ; cited, Ans. Conts. 2, 15, Bish. 329, 
 Laws. 8, Whart. 4, 15, 22, 719, Sto. 490 
 
160 
 
 DATUM POSTS. 
 
 Leading Cases. — 303. White. 
 
 Clark, 31, 32, Ham. 42, 52, Langd. Cas. 
 Conts. ; 9 Cyc. 280. 
 
 White stated : Consummation of contract 
 essential; acceptance must be perfect. 
 Corlies wrote White : "Upon agreeing to 
 finish the fitting up of offices 57 Broad- 
 way in two weeks from date, you can com- 
 mence at once." Receiving this, W. pro- 
 ceeded, bought material, etc., when the 
 offer was countermanded. Then W. sued. 
 Held, there was no acceptance. 
 
 Invitation to negotiate is no contract. 
 All the terms must be complete, under- 
 stood and fully assented to. 1 Page Conts. 
 26, 27. See Ticket. C. & A. R. R. v. 
 Cherry. Both sides must understand and 
 be bound, or neither. Cooke v. Oxley, 321. 
 Ahearn, 38 Mich. 692 (Contracts must 
 be definitely stated and agreed to). Moller 
 (from conduct — estoppel) ; 1 Page Conts. 
 26-56. 
 
 Offer distinguished from invitation to 
 treat. Moulton, 59 Wis. 316, 48 Am. Rep. 
 516, Huff. & W. Conts. 67. 
 
 Certainty is an important element of 
 contract, and enters into its comprehensive 
 definition. 
 
 Contracts; proposal and assent. Both par- 
 ties must agree to the same thing in the 
 same sense. Cooke : 321. See Gibbs : 405 ; 
 Tarling : 404. 
 
 A promise made after a transaction is con- 
 summated is without a consideration, e. g., 
 a warranty after treaty of sale. Barthol- 
 omew : 302. 
 
 Hopkins : 378. See Oral Evidence ; 
 Expressio unius, etc. ; Ayres, 52 Iowa, 478 
 (a promise to do what one Is already 
 bound to do is no consideration) ; Stilk : 
 313. 
 
 When a contract is agreed upon it is obliga- 
 tory although the writing is yet to be 
 signed and delivered and the money paid, 
 as where insurance of a boat was agreed 
 upon, but the policy was yet to be made 
 and delivered and the premium was then 
 to be paid. 2 Page 54 ; 215 111. 525 ; 106 
 Am. St. 187. There may be an oral con- 
 tract for insurance. Commercial Co., sub, 
 Dickson : 34 ; Russell, 176 N. Y. 178, 98 
 Am. St. 656. 
 
 Certainty. Uncertain agreement is no con- 
 tract. Sherman : 309 ; Kelley : 304 ; Zale- 
 ski : 306. What a memorandum must con- 
 tain under statute of frauds. Wain : 335 ; 
 Ellis, 7 Colo. App. 350 (contract must be 
 certain). Certainty essential for a bill 
 or note. Kelley ; 1 Page, 28. 
 
 1. Offer must purport to create liabilities 
 which are legally enforceable. See Im- 
 possibility ; Illegality ; Weltmer : 268a. 
 
 2. Must indicate a real intention to assume 
 liability. Tyler v. Pomeroy ; Zaleski : 
 306. 
 
 3. Must intend to assume legal relations on 
 acceptance. Zaleski. Non hwc in fozdera 
 veni. 
 
 4. All required terms must be complete. All 
 elements must be satisfied. Tyler v. 
 Pomeroy ; Zaleski. Wain : 335. 
 
 Leading Cases.— 303. White. 
 
 5. Offer must be definite. See Ambiguity; 
 Sherman : 305. Likewise the acceptance. 
 Zaleski : 306. If one offers to guaranty- 
 performance of an undertaking, the ac- 
 ceptor must give notice if he accepts the 
 offer. See Guaranty. 
 
 6. Necessity of communication of offer and 
 of opportunity to consider the terms as- 
 where one accepts a ticket or a bill of 
 lading. 1 Page, Conts. 31 ; K. C. R. R. 
 v. Riley: 357; Hollister : 354; Cherry v. 
 C. & A. R. R. Ticket and bill of lading 
 rules. 1 Page, Conts. 31. 
 
 Rewards; Communication of offer not neces- 
 sary. Williams v. Carwardine : 322. 
 Contra cases, Revocation of offer. Payne r 
 307 ; Cooke : 321 ; 1 Page, Conts. 34. 
 Acceptance implied from acts. 1 Page, Conts. 
 50 ; See Estoppel. Right to know and to 
 choose contracting party, Boston Ice Co. : 
 320. 
 304. KELLEY V. HEMMINGWAT 
 
 (1852), 13 111. 604, 56 Am. Dec. 474- 
 476, Bigl. Lead. Cas. (N. & B.) 10, Huffc. 
 Nego. Insts. 151, 3 Kent, 76, 1 Rand. 
 Com. Paper, 113, 1 Dan]. Nego. Insts. 
 46, 1 Pars. N. & B. 39, 1 Pars. Conts. 
 265 ; Chicago Co., 190 111. 404, 83 Am. 
 St.. 138, n. Cited, §§ 3, 42a, 148, Hughes' 
 Conts. 
 Cited, p. 40; §§ 112, 202, 219, 239, 250, 
 Hughes' Proc. ; §§ 164, 280, 286, Gr. &. 
 Rud. 
 Kelley stated: Certainty is an essential ele- 
 ment in the law of commercial paper. A 
 note payable when an infant is of age is. 
 no contract, being void for uncertainty. 
 3 Kent, 76. But otherwise if payable 
 "thirty days after death." Carnwright, 
 127 N. T. 92, 24 Am. St. 424, n., 12 L. 
 R. A. 845, n. 
 Certainty of amount essential. 1 Rand. Com. 
 Paper, 104-108 ; Kendall, 103 Cal. 319, 42 
 Am. St. 117, n. (allowance of attorney's 
 fee must be specified). 
 Time of payment. 1 Rand. Com. Paper, 109- 
 120 ; Kelley ; Crooker, sub, Sturdivant : 
 410. 
 Of person to be bound. Sturdivant, supra; 
 1 Rand. Com. Paper, 129, 131, 137, 147, 
 Byles, Bills, 38, 1 Danl. Nego. Insts. 306 ; 
 Stackpole v. Arnold (how agent must 
 sign). 
 Payee must be certain. Title, 30 Miss. 122, 
 64 Am. Dec. 154-158, n. ; Hegeler, 1 S. 
 Dak. 138, 8 L. R. A. 393, n. (certainty 
 of amount, time, and payee) ; Shaw, 150 
 Mass. 166, 6 L. R. A. 348, n. 
 Certainty essential for negotiability. Sturdi- 
 vant ; Miller, 56 la. 96, 41 Am. Rep. 82- 
 85, n. : cases ; Cota, 7 Met. 588, 41 Am. 
 Dec. 464, 465, n. : Iron City Bank, 139 
 Pa. 52, 23 Am. St. 166, n., 11 L. R. A. 
 559 (condition that deposit book must be 
 at bank before paid, vitiates) ; Kitter- 
 master, 105 Mich. 219, 55 Am. St. 437- 
 445, ext. n. (agreement for attorney fees, 
 vitiates) ; Greenh. Pub. Pol. 193, 1 Rand. 
 Com. Paper, 305 : cases ; Huff. Nego. 
 Insts. ; Clark, 61 Kan. 526, 78 Am. St. 
 337. 
 
DATUM POSTS. 
 
 161 
 
 Leading Cases. — 
 
 305. SSEBHAH V. KITSMIILEB 
 
 (1827), 17 Serg. & R. (Pa.) 45 Huff & W. 
 Conts. 157 ; Clark, Conts. 64, Laws. 10, 
 Ham. Conts. 86, 320 ; cited, § 3, Hughes' 
 Conts. 9 Cyc. 249. 
 
 Cited, p. 40; §112, Hughes' Proc. ; §§ 164, 
 286, Gr. & Rud. 
 
 Sherman v. Kitsmiller stated: S. told Lizzie 
 K., his niece, that if she would live with 
 him and keep house for him until she 
 married, he would give her 100 acres of 
 land. Upon this understanding she ful- 
 filled her part of the agreement until she 
 married and he died. She sued the estate 
 upon the promise of S., and the defense 
 was, that the contract was void for un- 
 certainty, and so the court held. What 
 land was to be given should have been 
 specified. A promise to give 100 pieces 
 of gold must specify the kind — whether 
 the smallest or the largest. And so it 
 should have been stated as to the 100 
 acres. Such contracts would lie at the 
 mercy of juries and courts. Courts do 
 not make contracts for parties. Cutter : 
 308 : Expressio unius, etc. 
 
 Effect on contract of leaving price indefinite. 
 United, 164 N. Y. 406, 53 L. R. A. 288- 
 300, ext. n. An indemnifying bond fail- 
 ing to fix the amount of penalty is void 
 for uncertainty. Slater, 3 Colo. Ct. App. 
 127. 
 
 Validity of promise to give property at 
 promisor's death. Svanburg, 75 Minn. 
 350, 43 L. R. A. 427. 
 
 Contracts; certainty essential. Certum est 
 quod certum reddi potest. Uncertain 
 agreement does not make contract. Kel- 
 Iey ; Zaleski ; Boston Ice Co. ; Kyle ; 
 White: 303. 
 
 Ambiguity, effect of upon contracts. See 
 Ambiguity, and cases there cited. Asp- 
 den's Estate : Sargent : Sanderson. 
 
 Indefinite or undesignated tract sold, is void. 
 Kleber, Sales, 354. See Wain : 335. 
 
 Certainty is equally essential in con- 
 tracts in judicial and taxation proceed- 
 ings. Its technical requirements are the 
 same. See L. C. 112-134. In the latter, 
 lands must be described with certainty. 
 Tilton : 133. Technicalities are the safe- 
 guards of the law. 
 
 306. ZALESKI v. CLAEK (1876), 44 
 Conn. 218, 26 Am. Rep. 446, 2 Pars. 
 Conts. 63, Whart. 593, Clark, 666, Beach, 
 131; Ham. 86, 443, Hawkins, 146 Mass. 
 184, 14 Am. St. 422, 1 Mech. Sales, 665, 
 
 Cited, p. 41 ; § 186, Hughes' Proc. 
 
 Zaleski stated: Z., a sculptor, agreed to 
 make a bust for Mrs. C. of her deceased 
 husband, which, if not satisfactory, need 
 not be accepted ; and upon this ground 
 she refused to accept it. This refusal 
 was sustained ; and it was held that she 
 could arbitrarily refuse if she chose. Os- 
 born, 38 W. Va. 312, 45 Am. St. 859 ; 
 Frary, 52 Minn. 264, 18 L. R. A. 645, 
 Church, 95 Cal. 626, 17 L. R. A. 207-213, 
 ext. n. ; Hawkins, 149 Mass. 284, 14 Am. 
 St. 422, n. ; Bush, 2 Colo. Ap. 48, 6 Colo. 
 Ap. 294 ; Brown, 113 Mass. 136, 18 Am. 
 
 11 
 
 Leading Cases. — 306. Zaleski. 
 
 Rep. 463, 2 Beach, Conts. 103 ; Braunstein, 
 1 B. & S. 783, 101 B. C. L. R. ; Roy, 9& 
 111. 361; Kendall, 196 111. 221, 89 Am. 
 St. 317, n. ; Barrett, 51 W. Va. 416, 90> 
 Am. St. 802 ; cases (refusal must be bona 
 fide). 
 
 Contra, Doll, 116 N. Y. 230, 15 Am. St.. 
 398 : cases ; 2 Colo. Ap. 62 : Mullally, 127 
 Mo. 138, 48 Am. St. 613, n. (cannot arbi- 
 trarily refuse). 
 
 Uncertain agreement does not make a con- 
 tract. 1 Chit. Conts. 2-94 ; 2 id. 833 ; Kel- 
 ley : 304. Mistake as to person contracted 
 with, vitiates the claim of contract, al- 
 though an article is delivered and con- 
 sumed. Boston Ice Co. : 320. 
 
 Mutual mistake as to price prevents title- 
 passing. Rupley, 74 111. 351, 1 Mech. 
 Sales, 278, Ans. Conts. 123. Or as to. 
 condition of things sold (as where a 
 blooded cow was erroneously supposed 
 barren) ; the contract may be rescinded 
 and replevin brought. Sherwood, 66 Mich. 
 568, 11 Am. St. 531, Huff. & Wood Conts. 
 249, 1 Mech. Sales, 274-276, 424, Ans. 
 Conts. 123; Wheadon : 349 (mistake). 
 
 307. PAYNE v. CAVE (1789), 3 Term 
 Rep. (D. & E.) 148 Langd. Cas. Conts. 1 
 Keener, Sel. Conts. 114, 1 Page, 33, Finch, 
 Cas. 7, 1 Benj. Sales, 42, 2 Kent, 478, 
 536, 1 Pars. Conts. 496, 512, Bish. 318, 
 1 Add. 21, Whart. 6, 256, 787, Ham. 63, 
 Hughes' Conts., 1 Mews' B. C. L. 930. 
 
 Cited, § 326. 
 
 Payne stated: P. offered a chattel for sale 
 at auction. C. bid £40 for it, but be- 
 fore the hamme'r was down asked for a 
 warranty which was refused, whereupon 
 C. withdrew his offer. £30 was the next 
 highest bid for which the hammer went 
 down. P. then sued C. for the difference 
 of the two bids but was defeated upon the 
 rule that, both sides must be bound or 
 neither. 
 
 Auction sales. A bidder is not bound by his 
 offer until the hammer is down. Both 
 parties must be bound or neither is the rule 
 (Cooke; 321). Proposals can be retracted 
 at any time before acceptance. Cooke v. 
 Oxley; Tarling: 404; Tillman, 114 Ga. 
 406, 57 L. R. A. 784, u., 88 Am. St. 28. 
 
 Refusal to comply with bid; damage on 
 resale. Notice of intention to resell and 
 to hold bidder for the risk, should be 
 given. Green, 92 Ga. 647, 44 Am. St. 
 110, n. 
 
 Auctioneer selling mortgaged chattels 
 without notice, not liable for conversion. 
 Frizzell, 88 Tenn. 396, 17 Am. St. 908, 
 n. ; Thomas, 3 Bush. (Ky.), 619, 96 Am. 
 Dec. 264-272, ext. n. (duties and liabili- 
 ties of) ; 1 Warv. Vend. 250-562. 
 
 Public contracts; rights of lowest bidder. 
 Anderson, 122 Mo. 61, 26 L. R. A. 707- 
 712, ext. n. 
 
 Pufiers ; effect of their bids. Gulick : 
 364. 
 
 The pleadings in Payne did not state all the 
 facts (see Sham Pleadings; Cutter). But 
 at the trial, Payne's attorney made a 
 full and true statement, whereupon Lord 
 
162 
 
 DATUM POSTS. 
 
 Leading Cases.— 307. Payne. 
 
 Kenyon ordered a non suit. Solemn ju- 
 dicial admissions bind a. client. Oscan- 
 yan : 41 ; Mahan. 
 308. CUTTER V. POWELL (1765), 6 
 Term. Rep. (D. & E.) 320, 3 R. R. 185, 
 2 Sm. L. C. 1-53, 8th ed. (ablest resume), 
 6 Rul. Cas. 628, Keener, Quasi Conts. 244- 
 248, Pars., 1 Chit., Beach, Bish. Clark, 
 Sto., Whart., 2 Add. 907, Ham. 463 (di- 
 visible contracts), 17 R. I. 674, 16 L. R. 
 A. 861, 59 Am. St. 290, 43 L. R. A. 810 ; 
 Mech. Ag. 635, Huitc, Reinh. (approves 
 Cutter), Tiff. Ag. (renunciation by agent 
 in his own wrong), Bro. Max. 657, 662, 
 
 1 Sto. Bq. 471, 2 Gr. Ev. 103, 1 Suth. 
 Dam. 547, 668, 686, 2 Sedgk. Dam. 659, 
 
 2 Mech. Sales, 1089, 2 Benj. 860, 2 Kent, 
 259, 468, 474, 3 id. 189, 471, Mews' E. C. 
 L., cited, pp. 38, 39 ; §§ 5a, 15, 20, 22, 
 141, 146, 180, 186, 186a, 210, 224, 227, 
 297, 300, 304, Hughes' Proc. ; §§ 1-4, 42, 
 48, 148, Hughes' Conts. 
 
 Cutter v. Powell is a truly interesting, 
 useful, notable, and widely discussed and 
 cited case. Since Britton v. Turner 
 
 (1834), 6 N. H. 481, 26 Am. Dec. 713 
 
 (a widely cited case, Huffc. Ag. Reinh., 
 Tiff. Ag.), 3 Page Conts. 1604; Dann v. 
 Wood, a furious contention has raged in 
 some courts. Therefore Cutter needs es- 
 pecial mention, and for this we state it 
 carefully : 
 Cutter stated: A sailor hired for an entire 
 voyage from Jamaica to Liverpool, pay- 
 ment to be made ten days after arrival. 
 The ship sailed July 31, and reached 
 Liverpool Oct. 11. Cutter died Sept. 20, 
 
 having served more than two-thirds of 
 the voyage. For this his representative 
 sued, but failed in the suit, upon the doc- 
 trine of the entirety of contracts. Ex- 
 pressio unius est exclusio alterius. Feat- 
 ures of this case are remindful of the de- 
 fense of a surety, where the contract has 
 been changed, and even to the benefit of 
 the surety ; who, nevertheless, may defend 
 upon the idea in Non hwc in fwdera veni 
 
 (I did not come into this compact) . 
 Rees : 3346. 
 
 'ntire contracts; principles upon which they 
 depend. Parties have the absolute right 
 to make contracts which are neither ma- 
 lum prohibitum nor malum in se. Limita- 
 tions of power to so contract are recog- 
 nized in fixing the limitations of the po- 
 lice power. And accordingly, parties may 
 contract against accidents if they choose 
 and so provide, notwithstanding the maxim 
 that an act of God shall affect no man in- 
 juriously ; Actus Dei neminem facit in- 
 juriam. §§ 3, 4, 20, Hughes' Conts. ; Bro. 
 Max. 229-242. 
 
 One may stipulate against accident and 
 impossibility. Paradine v. Jane (1670), 
 Alleyn, 26 : stated, 2 Smith, Lead. Cas. 
 39, 8th ed. ; Vogt, 118 Wis. 306 (if one 
 agrees to build a barn he must do it be- 
 fore he can claim his pay). Also in Mid- 
 dlesex Co., sub, Taylor v. Caldwell ; Robin- 
 son v. Davison : 310, 309, 81 Am. St. 473- 
 475 ; Superintendent, etc., 27 N. J. L. 543, 
 72 Am. Dec. 373 ; Dexter, 47 N. Y. 62, 
 
 Leading Cases. — 308. Cutter. 
 
 7 Am. Rep. 415, Huff. & W. Conts. 649 ; 
 Dermott, 2 Wall. Huff. & W- Conts. 641, 
 4 Am. Law Reg. (N. S.) 504, 2 Smith, 
 L. C. 39-53, 8th ed., 3 Suth. Dam. 645. 
 
 It should be observed that great principles 
 abut or lie in juxtaposition, for note the 
 right to contract and the line that separ- 
 ates it from the police power (Millet v. 
 P.: cases), and also that accident and 
 impossibility are fundamental principles 
 constituting defenses generally. Robinson ; 
 Taylor : 309, 310 ; Hallett ; Wattles, 50 
 Neb. 251, 61 Am. St. 554-572, ext. n. ; 
 Lester, 2 Q. B. 12, 9 Rul. Cas. 478, n. 
 
 Still those principles yield to the rights 
 of the parties to lawfully contract, else 
 that right would be denied or impaired. 
 The right to contract is fundamental and 
 is a high, controlling and dominating 
 right. Nordyke Co., 155 Mo. 643, 78 Am. 
 St. 600, n. In prwsentia majoris, etc. 
 
 Over the principles involved an interminable 
 conflict is raging, as may be gathered 
 from the latest efforts to present the law. 
 And from this viewpoint the reader must 
 look and judge. Huyett Co., 167, 111. 233, 
 59 Am. St. 272, 295, ext. n. ; Fisher, 102 
 Wis. 172, 43 L. R. A. 810 : cases (strict 
 rule of Cutter Case followed) ; Ornstein, 
 119 Wis. 429 (election of remedies — dam- 
 ages) ; Leopold, 89 111. 412, 31 Am. Rep. 
 93, n., Suth. Dam. ; Sedgk., 1 Sto. Eq. 
 471 ; Norrington ; Beach, Conts., Ham. 
 Conts., Huffc. Ag. 81 ; Hoare v. Rennie 
 (1859), 5 Hurl. & N. 19, Mews' E. C. L. 
 1 ; 2 Smith, Lead Cas. 39, 51, 8th ed. 
 The student will find these discussions like 
 those relating to Dovaston and Bristow, 
 and the mandatory record ; Windsor : 1. 
 Exceptions to the general rule. And it 
 is well to note that an exceptional rule 
 is claimed for: (1) Hiring of persons, as 
 in Britton v. Turner, supra, and (2) 
 Building contracts. Smith v. Brady 
 (1853), 17 N. Y. 173, 72 Am. Dec. 442- 
 455, n., 3 Suth. Dam. 709, 710. 
 
 Installment contracts; payments on not for- 
 feited. Pierce v. Staub, 78 Conn. 459, 112 
 Am. St. 163-170, citing Britton. 
 
 A fundamental principle involved. But, after 
 all, it is discoverable that the integrity of 
 the doctrine of entire contracts, and of 
 man's rights to lawfully contract, depend 
 upon respect for Cutter. And this view 
 must be accepted by those who insist for 
 equal and uniform law for patrician and 
 proletariat alike. 
 
 Cutter is profoundly a procedure case also, 
 for it involves the right of a party to 
 abandon the contract he has made and 
 to ask a court to make a contract for him, 
 and thus exclude or override the right of 
 parties to lawfully contract. This is so 
 important that we will observe that, 
 agreeably to one's fundamental right to 
 contract, he may stipulate against acci- 
 dent, impossibility, and that he will not 
 wantonly, tortiously and mala fide break 
 the contract he makes, and then allege 
 his own wrong as a ground of recovery. 
 
DATUM POSTS. 
 
 163 
 
 Leading Cases. — 308. Cutter. 
 
 This calls for the profoundest principles 
 in procedure, and of morals. The latter 
 is to be taken into account in establish- 
 ing and enforcing law. Trist : 214. 
 
 The juridical statement of a claim of 
 a right which is founded upon the claim- 
 ants' own wrong deliberately caused by 
 such claimant should be viewed as are 
 In pari delicto claims. Holman ; 263 ; 
 Weltmer : 268a; Seabury : 281. The 
 principle is expressed in Frustra legis 
 auxilium invocat qui in legem committet: 
 He seeks the aid of the law in vain who 
 offends against it. One must ask judicial 
 aid with clean hands. Collins. Qui 
 primum peccat ille facit rixa?n. He who 
 commits the first offense is liable for the 
 whole strife. "Squib Case." 
 
 Three late cases well illustrate the 
 frequent recurrence of fundamental princi- 
 ples : 
 
 Owner of stolen property is not bound to 
 pay the thief a reward offered. Schirm, 
 103 Md. 541, 7 L. R. A. N. S. 175, n. 
 
 The owner of a photograph may retain a 
 picture painted therefrom by an artist not 
 having permission. Klug, — Wis. — , 7 
 L. R. A. N. S. 362-367. 
 
 The offer of a reward for an arrest is not 
 satisfied "by giving information leading to 
 the arrest. MeCaughey, 147 Fed. 463, 7 
 L. R. A. N. S. 216 n. Shuey : 319. Jor- 
 dan: 324. 
 
 The foregoing cases show that contracts 
 have technicalities that must be respected 
 in order that principles may be upheld 
 and vindicated. "Windsor : 1 ; Campbell : 2. 
 The study of the law office presents 
 sentiment on the one hand and its funda- 
 mental law or Datum Posts on the 
 other. Lange : 159. The landmarks of 
 the law have been gradually silted over 
 by judicial decisions not founded on 
 principle. When the philosophy of the 
 law is lost, the law is lost. This is well 
 illustrated by the decisions of those 
 states that construe from the supposi- 
 tion that codes and late cases can found 
 a juridical establishment without regard 
 to the principles expressed and handed 
 down by antiquity. 
 
 Elsewhere we refer to the condition of 
 decisions and writings in some states. 
 Dovaston : 217. Peefacb. 
 
 One should never be allowed to take ad- 
 vantage of his own wrong. Nullus com- 
 modum capere potest de injuria sua pro- 
 pria. And besides, let us note that courts 
 are created and only exist to remedy the 
 wrongs of truly wronged persons, who 
 appear and, according to the course of 
 the law, truly describe the wrong that they 
 have suffered. Fabula. It is a funda- 
 mental rule of construction to ever keep 
 in view the intent of a constitution or 
 of any compact. Verba intentione debent 
 inservwe. Now, in the light of these basic 
 rules, how may one appear and complain 
 to a court, created for the purposes de- 
 clared in preambles and bills of rights, 
 
 Leading Cases. — 308. Cutter. 
 
 and allege the contract truly, and then 
 aver that he himself broke it without any 
 assignable cause, and still recover? 
 
 Decisions that allow a recovery in such 
 cases are in great confusion, e. g., in 
 Colorado there must be considered con- 
 flicting cases in each of two appellate 
 courts, and, of course, a search for the 
 "latest case" from each of these follows. 
 The purpose of such courts is to estab- 
 lish the law and to respect stare decisis; 
 but where that purpose fails, obedience to 
 law is impossible. Cujus est instituere. 
 Now, it is important to note the procedure 
 that allows such results, for it is much 
 opposed to fundamental requirements : 
 
 The claimant declares upon a quantum 
 meruit, which is one thing, and the con- 
 tract he made is quite another ; for it is 
 not an implied contract, but an express 
 one. Therefore wherever the rule that 
 allegata et probata must correspond is 
 respected, it would be sufficient to deny 
 the quantum meruit, and then stand on 
 the variance. 1 Gr. Bv. 63 ; Bristow: 
 135 ; 2 Whart. Conts. 720. Frustra pro- 
 batur. See Variance ; Departure. 
 
 It is a singular and erratic rule that re- 
 quires a defendant to deny the thing 
 alleged, and then set up the express con- 
 tract and allege plaintiffs breach and the 
 damages and benefits : then leave these to 
 a court and jury to make a contract . for 
 the parties, and thus disregard and ignore 
 the lawful contract they made. Suth. 
 Dam. 283. Non hmc in fmdera veni; Abel; 
 Rees : 334. 
 
 There are moral objections to such procedure, 
 which are sufficient, overlooking the pro- 
 founder ones; but these can not be fully 
 set forth here. Fabula, etc. ; Frustra 
 probatur, etc. We will observe, however, 
 that the doctrine of election of remedies 
 ought not to apply here, for that is al- 
 lowed where a defendant has committed a 
 tort which estops him from disputing the 
 plaintiff's allegations. Smith : 156, See 
 Election. 
 
 Pleadings ought to be true. False and sham 
 pleadings involve a party in grave conse- 
 quences ; for these are a fraud in the 
 administration of justice ; they are instru- 
 ments of chicane. Robinson : 45 ; §§ 5-5&, 
 Hughes' Proc. 
 
 They are not good foundations for a 
 judgment, when we construe from the pur- 
 pose for which courts are created. 
 
 Wonderly : 102 ; Graver : 103 ; Califor- 
 nia : 270 ; Weeks, Attys.. 81 : case's. 
 Fabula, etc. Bro. Max. 329, u., 342, 971; 
 Lampleigh: 301. 
 
 Such pleadings are a poor servitor of the 
 supreme laws of the land and of its parts, 
 which are dominating principles in proce- 
 dure. See §§ 5, 150, Hughes* Conts. In- 
 troduction, Hughes' Proc. 
 
 These views of procedure plainly sug- 
 gest what the contract should be, and why 
 Expressio unius, etc., is a great universal, 
 fundamental principle, and why parts of 
 
164 
 
 DATUM POSTS. 
 
 Leading Cases. — 308. Cutter. 
 
 it, namely, De non apparentibus, etc., and 
 Adore non probanie reus absolvitur must 
 ever be respected. See Campbell : 2 ; 
 Bristow : 135. 
 
 Breach of contract; action for. See Dam- 
 ages ; Breach of Contract Anticipa- 
 tory ; In Limine Breach ; Renunciation 
 of Contract. When one may sue. Frost ; 
 Hoehster: 308a-3086; Newell, 119 Wis. 
 635. 
 
 Installment contracts; breach as to one is a 
 breach of all. Norrington ; Creswell 
 Ranch Co. : 63 Fed. 84 (C. C. A.) (good 
 faith no excuse for breach). Benj. Sales, 
 604, 7th ed. 
 
 Contract when severable. Weil, 33 Ind. Ap. 
 112, 104 Am. St. 243 ; St. Louis Co. v. 
 Casualty Co. 
 
 Remedy of servant for wrongful discharge. 
 Howay, 24 Wash., 88, 6 L. R. A. N. S. 
 49-122, ext. n. ; Smith, — N. C. — , 5 L. R. 
 A. N. S. 439-459 (Cutter) ; Von Heyne, 
 89 Minn. 77, 5 L. R. A. N. S. 525-536, 
 ext. n. ; Davidson, 138 Calif., — 5 L. R. A. 
 N. S. 579-588, ext. n. 
 
 308a. FROST v. KNIGHT (1872), 7 L. 
 R Ex. 11, 5 Ex. 322 ; reversing same 
 case, 5 L. R. Ex. 227, 1 Eng. (Moak's) 
 218, Finch, Cas. Conts. 719, Chit. Conts. 
 Pars., Bish., Clark, 645-647, Wharton, 
 Ham., Sto., Add., Beach, Ans. 281, 282, 
 2 Gr. Ev. 261, 2 Benj. Sales, 860, Mech. 
 Ag., Suth. Dam. 88, 107, 120, 645, 648, 
 652, Wood, Land. & Ten., 2 Kent, 468 ; 
 9 Cyc. 636; Roehm v. Horst (1900), 178 
 U. S. 1-22 (many cases cited) ; 3 Page. 
 1434, 1437, 1583-1584, affirming same 
 case ; 85 Fed. 565, Huffc. Ag. 79, 21 Nat'l 
 Corp. Rep. 64, et seq. : cases, Mech. Sales, 
 q. v., Mews' E. C. L., Page Conts. 1434 ; 
 § 67, Gr. & Rud. 
 
 Frost stated : Renunciation of contract gives 
 immediate right to sue. Knight was af- 
 fianced to Miss F. The nuptials were to 
 be celebrated when his father died ; before 
 this event he renounced his undertaking 
 and declared a contrary intention, where- 
 upon F. immediately sued and recovered. 
 
 "One has an inchoate right in the per- 
 formance of the contract : its unimpaired 
 and unimpeached efficacy may be essential 
 to his interests." Davis, 2 N. Dak. 300, 
 33 Am. St. 783-797, ext. n., 16 L. R. A. 
 625 (right of party to proceed to execute 
 contract after his adversary declines to do 
 so on his part) ; Smoot, 15 Wall. 36, 48 ; 
 Ford, 6 Barn & Cress. 325 (13 E. C. L. 
 R.) ; Wood, Land. & Ten. 95, 2 Gr. Ev. 
 136a; Kurtz, 76 Ind. 594, 40 Am. Rep. 
 275, Huff. & W. Conts. 358; Hoehster; 
 Roehm, quoting and reaffirming the Frost 
 and Hoehster cases. 
 
 Renunciation of contract before time for 
 performance constitutes an in limine 
 breach, for which one has an immediate 
 right to sue. Nullus commodum capere, 
 etc. : Allegans contraria, etc. He who 
 offends the law cannot be protected by the 
 law ; Armory : 180. 
 
 Marriage contracts ; Breach of. See Id. 
 Rescission ; grounds for. See Breach 
 of Promise ; Rescission ; Van Houten. 
 
 Leading Cases. — 
 
 308b. HOCHSTEH. V. DE I.A TOUR 
 
 (1853), 2 El. & Bl. 678 (75 C. L. R.), 
 20 Eng. Law & Equity, 157, 6 Rul. Cas. 
 576-615, n. ; Mech. Ag. 624, Huffc. 79, 
 Ans. Conts. 281, 282, Bish., Pars., Chit. ; 
 Beach, Add., Williston Cas. Conts. 377, 
 Ham. 454, Whart., Sto. Conts. 1030, 1032, 
 3 Page, 1437 ; 9 Cyc. 636, Bro. Max. 284, 
 33 Am. St. 796, Benj. Sales, 2 Kent, 468, 
 n., Suth. Dam., 117 U. S. 502 ; Roehm, 
 q. v., Mech. Sales, q. v., Mews' E. C. L. 
 
 Cited, § 313, Gr. & Rud. 
 
 Hoehster stated: In limine breach of con- 
 tract gives right to sue. D. hired H. as 
 a courier, to commence work at a certain 
 time ; before this arrived D. changed his 
 mind and declared the contract off. H. 
 sued at once and before time for per- 
 formance had arrived. Held, he could 
 recover. 
 
 308c. DAME v. WOOD (1905), 73 N. H. 
 222, 70 L. R. A. 133. Britton v. Turner 
 cited and discussed. 
 
 Entire contract; partial performance; loss- 
 by fire. When contractor to build must 
 bear the loss from accident causing de- 
 struction of a building. If title to fixture 
 passed to owner he must bear the loss. 1 ' 
 Hallett v. Wylie. 
 
 Quasi contracts discussed; rule stated. Cut- 
 ter : 308. 
 
 308d. HALLETT V. WTTC.IE (1808), 3 
 Johns. (N. Y.) 44, 3 Am. Dec. 454-459, 
 165, Bro. Max., Chit. Conts., Bisph. Eq., 
 Wash. Real Prop., Tayl. Land. & Ten., 
 Wood, Land. & Ten. 
 
 Cited, §§ 4, 9, Hughes' Conts., §§ 297, 302. 
 
 Hallett stated : Accident ; landlord and ten- 
 ant ; destruction of premises. H. rented. 
 W.'s house for four years, took posses- 
 sion, and was occupying it when, after 
 nine months' occupancy, the house 
 burned, and H. quit the premises after 
 paying for the time he occupied it. Af- 
 terward W. sued for a year's rent or 
 more. H. defended because of the de- 
 struction of the house. But this was not 
 a good defense. 
 
 Wattles v. South Omaha, etc.. Co. 
 (1897), 50 Neb. 251, 61 Am. St. 554-572, 
 ext. n. ; Belfouf v. Weston (1786), 1 T. 
 Rep. (D. & E.) 310, 1 R. R. 210, 9 Rul. 
 Cas. 436 (tenant must pay although the 
 premises are destroyed) ; 8 Mews' E. C. L. 
 928 (Landlord and Tenant) ; 15 Rul. Cas. 
 483-496 ; 22 L. R. A. 613-617 ; Actus Dei. 
 
 Inherent defect of premises, tenant is not 
 liable for. Lister v. Lane (1893). 2 Q. 
 B. 212, 62 L. J. Q. B. 583, 69 L. T. 174, 
 41, W. R. 626, 9 Rul. Cas. 478, n. ; 8 
 Mews' E. C. L. 1113. 
 
 Agreement to repair extent of liability. Bur- 
 dett, 7 Adol. & El. 136 (34 E. C. L. R. 
 57), 2 N. & P. 122, W. W. & D. 444, 9 
 Rul. Cas. 476, 8 Mews' E. C. L. 1113; 
 Polack; Boardman, 64 L. R. A. 648-667, 
 ext. n. 
 
 Building contracts ; owner must pay contract 
 for destroyed tenement, although it is not 
 completed. Butterfield v. Byron (1891), 
 153 Mass. 517, 12 L. R. A. 571, n. : 
 cases ; 26 Am. St. 664 ; Krause v. Board 
 (1904), 162 Ind. — , 70 N. E. 264; 102 
 
DATUM POSTS. 
 
 165 
 
 Leading Cases. — 308d. Hallett. 
 
 Am. St. 203-217, n. ; Halsey, 125 Wis. 
 311, 110 Am. St. 338 ; Dame v. Wood. 
 Cujus est dominium ejus est periculum: 
 The risk lies upon the owner of the sub- 
 ject. Tarling v. Baxter : 404. 
 Repudiation and non-performance of a con- 
 tract gives immediate right to sue. Frost : 
 Lake S. R. R., 152 111. 59, 30 L. R. A. 
 33-73, ext. n. (right to rescind or aban- 
 don a contract because of other party's 
 default) ; Windmuller, 107 N. Y. 674, Huff. 
 & W. Conts. 555 ; Dingley, 117 U. S. 490, 
 Huff. & W. Conts. 556, n. ; Roehm (to 
 limine breach of contracts ; extended 
 resume; 'review of all cases). 
 Declaration of intention to repudiate a con- 
 tract waives right to performance of con- 
 ditions precedent. Royal Ins. Co., 192 U. 
 .S. 149, 162. Lex nemtnem, etc. 
 
 What is a breach authorizing a suit. 
 Bish. Conts. 1413-1447 ; Foster, 60 Vt. 
 392, 6 Am. St. 120 (refusal to give note 
 for article " sold) . 
 
 Breach of entire contract ; damages for. 
 Bartlett, 79 Cal. 218, 12 Am. St. 139, n. ; 
 Hitchcock v. Galveston ; Remy, 88 Cal. 
 537. 
 
 Contracts for personal services ; breach 
 of. Cutter ; Robinson ; Taylor ; Breach 
 of Contract. Ans. Conts. 276-286. 
 Right of one party to proceed to execute 
 contract after the declension of the other. 
 Davis, 2 N. Dak. 300, 33 Am. St. 783-797, 
 ext. n. 
 
 Countermand of executory contract of 
 sale ; effect ; remedies. Oklahoma Co., 116 
 Ga. 140, 94 Am. St. 112-125, ext. n. 
 
 One making performance impossible is 
 liable thereon at once. Nullus commodum 
 capere, etc. 
 309. ROBINSON v. DAVISON (1871), 
 L. R. 6 Exch. 269, Mews' E. C. L., Pars., 
 Conts., Chit., Beach, 1 Add. 396, Laws. 
 Whart., Clark, Ham. Conts. ; cited, Hughes' 
 Conts. 
 Cited, SI 297, 302, Hughes' Proc. ; § 69, Gr. 
 
 & Rud. 
 Robinson stated: Mrs. D. was an eminent 
 pianist. She contracted to play upon a 
 certain notable occasion, for which great 
 effort and expense were incurred. On ac- 
 count of sickness she failed and R. sued 
 for damages. Held, he could not recover, 
 as it was assumed in the contract that 
 both parties would live and be able to per- 
 form ; this was the foundation of the con- 
 tract (Harper v. Ins. Co.). D. did not 
 guarantee she would perform ; exceptions 
 were not provided against in the contract, 
 and it was one she could not fill by dep- 
 uty. 
 
 Blakely, 197 Pa. 305, 80 Am. St. 821 
 (contracts are construed from a subject- 
 matter) ; St. Louis Co. v. Ins. Co. Con- 
 tracts for personal services. 1 Beach., 
 Conts. 227-231 : cases. Matters of per- 
 sonal trust and confidence cannot be dele- 
 gated. Campbell, Kans., 67 Pac, 866 
 Smith Conts. 157, n. ; Delegatus non potest 
 delegare. 
 
 A contract for the performance of par- 
 
 Leading Oases. — 309. Robinson. 
 
 ticular personal services is not assignable 
 without the assent of the parties. Chapin 
 (1877), 31 O. St. 421. Publishers agree- 
 ing to publish a forthcoming work, they 
 cannot assign their part of the contract, 
 without the author's consent, to another 
 firm. Hole, 12 Chan. Div. 886. See Bos- 
 ton Ice Co. : 320 ; Smith Conts. 157, n. 
 
 One may contract against accident. 
 Paradine v. Jane (1670), Alleyn, 26; 
 stated, 2 Smith Lead. Cas. 39, 8th ed., 81 
 Am. St. 473-475, Bro. Max. Chicago, etc., 
 R. R., 139 U. S. 79, 4 Am. R. R. & Corp. 
 Rep. 213 ; Cutter ; Hallett. 
 4« to who must bear the loss by fire of a 
 building on premises sold by contract. 
 Phinizy, 111 Ga. 346, 50 L. R. A. 680, n. 
 Death or disability of a party in contract for 
 personal service. Spalding, 71 N. Y. 40 ; 
 Cutter. See Beeach op Promise. Con- 
 tracts of a personal nature are terminated 
 by the death of the contractor. 80 Am. 
 St. 827. 
 
 Sickness is an excuse for non-perform- 
 ance of a contract for services. Gilbert, 
 21 Wis. 401 ; Wolfe, 20 N. Y. 197 ; Remy : 
 21 L. R. A. 645, n. Bro. Max. 234. 
 
 Recovery for services interrupted by 
 sickness or death. Parker, 17 R. I. 674, 
 16 L. R. A. 858, n. ; Cutter. 
 
 Right of teacher to salary during tem- 
 porary interruption during term time. Mc- 
 Kay, 21 Utah. 239, 50 L. R. A. 371, n. 
 
 Change of circumstances after offer and 
 before final acceptance. Canning, 16 Q. 
 B. Div. 727, 8 Mews' B. C. L. 27, 28 (In- 
 surance : Life) ; Ans. Conts. 483 ; or im- 
 possibility, 3 Page Conts. 1381 ; Board : 
 63 O. St. 514, 52 L. R. A. 868. 
 
 310. TAYLOR V. CALDWELL (1862), 
 2 Best & Smith, 26 (113 E. C. L. R.), 6 
 Rul. Cas. 597^645, n., 14 L. R. A. 216, 
 Chit. Conts., Ans., Laws. 425, 1 Add. 327, 
 Beach, Sto., Clark, Ham. Conts., 4 Mews' 
 E. C. L. 142 (impossible contracts) ; 
 Mech. Sales, 2 Benj. Sales, Bro. Max , 2 
 Kent ; Middlesex Countv, 64 N. J. Law, 
 240, 81 Am. St. 467 ; cited, § 4, Hughes' 
 Conts. 
 
 Cited, % 297, Hughes' Proc. ; § 69, Gr. & Rud. 
 
 Taylor stated : T. rented a music hall of C, 
 and it was immediately burned before 
 T.'s entry, but he had already incurred 
 great expense for four nights of opera. 
 For this he sued C, but he could not re- 
 cover. Actus Dei, etc. Cutter. 
 
 Landlord and tenant ; destruction of 
 leased premises ; when tenant must con- 
 tinue to pay. 36 Am. St. 174 ; McMillan, 
 42 Ala. 356, 94 Am. Dec. 654, 655, ext. 
 ii., 3 Kent, 468 ; Polack. 
 
 Impossibility arising from destruction 
 of thing essential for performance. 2 
 Benj. Sales, 862, u. ; Hallett ; Board of 
 Education, 63 Ohio, 514, 52 L. R. A. 868. 
 
 311. CUMBER V. WANE (1719), 1 
 Strange, 426, 1 Smith: 733-679, n., 11th 
 ed. (reviewing English cases), 1 Pars. 
 Conts. 232, 2 id. 732, 3 id. 4, Ans. 83, 
 Laws. 194, Whart. 504. 935, 997, 1001, 
 Beach, Clark, Conts. 189, 99 Mich. 247, 
 41 Am. St. 597 ; Foakes o. Beer, infra; 
 
166 
 
 DATUM POSTS. 
 
 Leading Cases. — 311. Cumber. 
 
 9 Cyc. 354; Jaffray v. Davis (1891), 124 
 N. Y. 164, Huff. & W., Conts. 187, 11 L. 
 R. A. 710, Bish. Conts. 54, Add. Conts., 
 2 Gr. Ev. 28, 31, 2 Kent, 380, 1 Suth. 
 Dam. 248, 1 Mews' E. C. L. 8, 9, 10 (Ac- 
 cord and Satisfaction) ; Dreyfus (Ark.), 
 69 L. R. A. 823 : cases (denies Cumber, as 
 also does Clayton) ; 74 Miss. 499, 60 Am. 
 St. 521, n. ; cited, §§ 1, 36, 68, 106, 119, 
 123. Hughes' Conts. 
 
 Cited, p. 38 ; § 20, Hughes' Proc. 
 
 Cited, §§ 33, 313, Gr. & Rud. 
 
 Cumber stated: W. owed C. £15, overdue 
 and liquidated. For accord and satisfac- 
 tion of this he gave Cumber his note for 
 £5, payable at a future day. Afterwards 
 Cumber sued Wane, for the unpaid £10 
 and recovered upon the rule that all of an 
 overdue liquidated debt cannot be satisfied 
 by payment of a part. Had the note been 
 paid it was held in Cumber that that 
 would make no difference. But over that 
 there is great contention. Foakes v. Beer ; 
 Pinnel's Case ; Sibree v. Tripp ; Goddard 
 v. O'Brien ; Longridge v. Dorville ; 69 L. 
 R. A. 823. 
 
 The plea of accord and satisfaction in Cum- 
 ber was not good, and to this was filed a 
 reply. Of course this was immaterial. To 
 this reply a demurrer was filed but was 
 properly carried back to the plea. Cf. 
 Rensberger. 
 
 The agreement to pay at a .different 
 place or giving a negotiable instrument is 
 extendedly noticed by way of distinction 
 from Cumber, Goddard, Sibree (important 
 cognate cases). 
 
 Generally, giving a note is no extinguish- 
 ment of antecedent debt until it is paid. 
 Tobey. It may be surrendered and the 
 original consideration sued upon. Tobey. 
 It is well to connectedly consider Cumber, 
 Sibree and Goddard. See 1 Eng. Rul. Cas. 
 370-392, n., Williston, Cas. Conts. 355, 9 
 App. Cas. 605 ; Bidder, 37 Ch. Div. 413, 
 2 Gr. Ev. 31 ; Jaffray v. Davis, supra (re- 
 viewing Cumber and above cases) ; Chi- 
 cora Fertilizing Co., 91 Md. 144, 50 L. R. 
 A. 401 (cited Pinnel's Case and followed 
 Cumber) ; Hodges, 19 Ind. Ap. 651 : cases. 
 Performance of existing contracts as a 
 consideration for a new promise. Abbott, 
 163 Mass. 433, 34 L. R. A. 33-45. 
 
 Where one owes a liquidated, overdue debt, 
 he cannot discharge it by paying a part 
 of it only. A promise to forgive the re- 
 mainder by the creditor is without con- 
 sideration. Ex nudo pacto non oritur 
 actio. To illustrate : If a wife agreed to 
 give her husband a beneficial separation 
 agreement provided he would supply her 
 necessities for the next month, he could 
 not enforce such agreement, for he is 
 bound to supply the necessaries anyway. 
 Performance as to a part will not dis- 
 charge the entire obligation. If one 
 bought a ticket of a railroad company 
 from New York to San Francisco and af- 
 terward promised the common carrier to 
 surrender the ticket for carriage to Chi- 
 cago, the carrier could not enforce the lat- 
 
 Leading Cases. — 311. Cumber. 
 
 ter contract for the reason that perform- 
 ance of a part will not satisfy the whole. 
 In the above illustrations the promise of 
 the wife and of the passenger was no 
 detriment to the husband or the carrier. 
 Neither of such promisees was wronged by 
 those promises. Unless one is wronged 
 by a promise he cannot complain of it. 
 Lampleigh ; Cutter ; 1 Suth. Dam. 248 : 
 cases ; 1 Add. Conts. 363 ; Loach. 
 
 Payment of part of a judgment, and 
 parol release of remainder on execution, 
 is invalid. Weber, 134 Mass. 26, 45 Am. 
 Rep. 274. 
 
 Accord and satisfaction. A lesser sum can- 
 not be pleaded in satisfaction of a greater 
 overdue and liquidated sum. Cumber, 2 
 Gr. Ev. 28, 1 Suth. Dam. 246-253 : cases. 
 
 If consideration is necessary for a contract, 
 then it is essential for its dissolution. 
 Nihil tarn conveniens, etc. ; 1 Sm. : 663, 
 668. 
 
 Demanding and receiving a receipt in full, 
 when part of a claim is denied, is an ac- 
 cord and satisfaction. Tanner, 108 Mich. 
 58, 31 L. R. A. 171. Surrendering a note 
 and giving a receipt even, will not avail. 
 2 Chit. Conts. 1102 ; Walters, 3 Barn. & 
 Adol. 889 (22 E. C. L. R.) ; stated, 2 
 Chit. Conts. 1102. 
 
 There are many interesting and instruc- 
 tive cases of the principle in Cumber 
 which should be consulted, and for this 
 we cite : 
 
 Goddard v. O'Brien (1882), L. R. 9 Q. B. 
 Div. 37, Finch, Cas. 316, 2 Am. Law Reg. 
 637-643, ext. n., Mews. E. C. L., Goddard, 
 denies Cumber, Ham. Conts. 332 ; Clayton 
 v. Clark (1896), 74 Miss. 499, 60 Am. St. 
 521, n. (denies Cumber), 1 Add. Conts. 
 328 ; Fuller, 138 N. Y. 231, 20 L. R. A. 
 785-812, ext. n. (check given will oper- 
 ate) ; McKenzie, 120 N. Y. 260, 8 L. R. 
 A. 257 (creditor may make a gift of the 
 unpaid). Turnbull v. Brock (1871), 31 
 Ohio St. 649, Wamb. Stud. Cas. 81 ; cited, 
 Bish. Conts. 50 ; Twitchell, 10 Cush. 47, 
 57 Am. Dec. 80. 
 
 Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 
 136-143, ext. n. : stated, 1 Sm. L. C. 648 
 (agreement to pay at a different place suf- 
 ficient) ; Clark, 53 Minn. 88, 39 Am. St. 
 577, n. (if a third person pays, the dis- 
 charge is valid) ; Leeson, 99 Mich. 247, 
 41 Am. St. 597, n. ; Eldred, 80 Iowa, 264. 
 20 Am. St. 416, n., citing exceptions to 
 the rule. 
 
 Pinnel's Case (1602), 5 Coke Rep. 117a, 1 
 Rul. Cas. 368-370, n., 2 Danl. Nego. Insts. 
 1289, Finch, Cas. 315, Laws. Conts. 104, 
 50 L. R. A. 402. 
 
 Foakes v. Beer (1884), 54 L. J. Q. B. 130, 9 
 App. Cas. 605, 1 Rul. Cas. 370-393, n., 
 Finch, Cas. 319, Ham. Conts. 332, 69 L. 
 R. A. 824. 
 
 Sibree v. Tripp (1848), 15 Mees. & Wels. 
 (Eng.) 23, 71 R. R. 545, 2 Gr. Ev. 28, 
 Ham. Conts. 332 (giving a negotiable 
 note for a part, is sufficient) ; Cumber; 
 stated, discussed and qualified, also note : 
 
DATUM POSTS. 
 
 167 
 
 Leading Cases. — 311. Cumber. 
 
 Bro. Max. 890 ; 1 Pars. Conts. 332, 2 id. 
 733 ; Goddard ; Tobey ; Am. Lead. Cas. 
 
 Agreement for making payment at a 
 different place is sufficient : Jones, supra. 
 
 Composition agreements are valid. Milliken, 
 1 Rawle (Pa.), 397, 399: stated, 1 Sm. 
 L. C. 650, 2 Pars. Conts. 733, 2 Chit. 
 Conts. 1102, Ans. Conts. 86, 87, 315 ; 
 White, 107 N. Y. 518, 1 Am. St. 886 ; 
 notes, 64 Am. Dec. 142, Laws. Conts. 105, 
 8 Cyc. 409-490. 
 
 Composition agreements must be paid as 
 agreed upon, for upon this depends the ob- 
 ligation to accept part for all. Clarke, 12 
 Pet. 178. And without secret advantage 
 to one. Hanover Bk., 142 N. Y. 404, 27 
 L. R. A. 33-41, n. Paying one creditor 
 more than others is illegal, and it may be 
 recovered back. Atkinson v. Denby 
 (1861), 6 Hurl. & N. 778, 2 id. 934, Gr. 
 Pub. Pol. 264, Kerr, Fraud, 377-379, 388, 
 
 1 Pom. Eq. 403. 
 
 Accord between plaintiff and a third person 
 operates for all liable for a wrong. Jack- 
 son, 66 N. J. 319, 55 L. R. A. 77 (citing 
 Cumber) ; Ellis: 389. • 
 
 A consideration is essential. Rann ; Abel v. 
 Alexander; Hamer v. Sidway, 12 L. R. A. 
 463-476, ext. n. Sub, Ex nudo pacta, etc. 
 
 A consideration must be real. White, 317. 
 Beaumont : 367. 
 
 Compromise as consideration. Stapil- 
 ton v. Id. (1739), 1 Atk. 3, 26 Eng. Rep, 
 1, 2 Lead. Eq. Cas. 1675, 12 Rul. Cas. 
 100-138, n. ; Pom., Sto., Bish., Beach 
 (Eq.) ; Perry, Trusts; Chit. Pars., Ans., 
 Bish. (Conts.) ; 13 L. R. A. 601, 17 R. 
 I. 402. 
 
 Adequacy of consideration will not be in- 
 quired after where there is any. Thorn- 
 borow : 333 ; Bainbridge : 334 ; Haigh v. 
 Brooks (1839), 10 Adol. & El. 309 (37 E. 
 C. L. R.), 3 P. & D. 452 ; Finch, Cas. 364, 
 stated, 1 Pars. Conts. 450, 1 Langd. Conts. 
 210, 1015, Ans. Conts., 11 Mews' E. C. L., 
 
 2 Dev. Deeds 814 (surrendering possession 
 of a worthless paper upon which is writ- 
 ten a void contract is a sufficient consid- 
 eration for a payment of £10,000) ; 
 Hitchcock v. Coker (1837), 6 Adol. & EI. 
 438 (33 E. C. L. R.), 1 N. & P. 796, 2 H. 
 & W. 464, Mews' E. C. L. : cited, Bish. 
 Conts. 72, Ans. 188 ; id. 70-72, 1 Pars. 
 Conts. 449-453, 8th ed., Schnell v. Nell 
 (1861), 17 Ind. 29, 79 Am. Dec. 453-457, 
 n., Laws. Conts. 93 (one cent for $600) ; 
 1 Langd. Cas. Conts. 210, Huff. & W. 
 Conts. 138 ; Home : cases ; 39 Am. St. 
 732-746 (able resume of cases and rules). 
 
 Voluntary services, or gratuities, given, upon 
 no antecedent contract or request, cannot 
 be recovered for. Bartholomew: 302, Bos- 
 ton Ice Co. 
 
 Moral obligation is no consideration. Beau- 
 mont : cases ; Cook ; Mills : 316 ; Cumber ; 
 Lee, 318. 
 
 It is no consideration for one to do what in 
 law he is already bound to do. Reynolds 
 v. Nugent ; Stilk : 313 ; Cumber ; Upton v. 
 Tribilcock; 34 L. R. A. 33-45. j 
 
 Leading Cases. — 311. Cumber. 
 
 Trust and confidence a sufficient considera- 
 tion. Coggs, Bainbridge, Ans. Conts. 71. 
 Forbearance to sue for a definite period is a 
 
 valuable consideration. Smith, Conts. 195. 
 
 Hockenberry, 34 N. J. Law, 346, 2 Rand. 
 
 Com. Paper, Bish. Pars. Conts. ; Palfrey, 
 
 4 Allen (Mass.), 55, Pars., Bish., Add. 
 
 Conts. ; Staver, 6 Wash. 173, 36 Am. St. 
 
 142-149, ext. n. (agreement to forbear a 
 
 plea in bar to original indebtedness). 
 Prevention of litigation. 1 Pars. Conts. 453- 
 
 455, 1 Chit. 46, Leeson, 99 Mich. 247, 41 
 
 Am. St. 597. 
 A promise for a promise. 1 Pars. Conts. 
 
 464-468, 1 Chit. 50, 1 Add. 18, 33 (e. g., 
 
 a contract to marry). 
 Extension of time a good consideration. De- 
 
 peau, 2 Rand. Com. Paper, 457, 1 Danl. 
 
 Nego, Insts. 827, 1 Pars. N. & B. 224, 
 
 2 Whart. Ev. 1000. 
 Subscription and contribution. 1 Pars. Conts. 
 
 468-472, Ans. 86 ; Presbyterian Church, 
 
 etc., 112 N. Y. 517, 8 Am. St. 767, n. In 
 
 a subscription contract, joint or several. 
 
 Gibbons, 51 Minn. 499, 22 L. R. A. 80, 
 
 ext. n. 
 Consideration void in part. 1 Pars. Conts. 
 
 472, 1 Chit. 67 ; Mallan ; In pari delicto, 
 
 etc. 
 Illegality of consideration. Beaumont : cases. 
 
 Ans. Conts. 171-208, 1 Chit. 27, 1 Pars. 
 
 473-476 ; In pari delicto, etc. ; Holman, 
 
 Mallan : 363-372. 
 Impossible. 1 Pars. Conts. 472, 1 Chit. 64 ; 
 
 1 Add. 327 ; Lex neminem cogit, etc. 
 Failure of consideration. 1 Pars. Conts. 479- 
 
 482, 2 Chit. 920-928, 1 Add. 316, 317, 4 
 Encyc. PI. & Pr. 948-951; Stewart, 5 Al- 
 len, 506, 81 Am. Dec. 747 ; Moses, 3 Burr. 
 10, 12. Cited, Chit. Conts. 898, 899. 
 Time of the consideration. 1 Pars. Conts. 
 485-490, 1 Chit. 69-74; Lampleigh. Gen- 
 erally ; bills and notes ; partial want of 
 failure ; illegal. 2 Suth. Dam. 542-554, 
 
 2 Dev. Deeds, 806-834. 
 
 Defect of consideration, shown by oral evi- 
 dence. 2 Suth. Dam. 554, 1 Pars. Conts. 
 440-490 (8th ed.) ; Rann. See Okal Evi- 
 dence. 
 
 Proving of consideration ; when re- 
 quired ; what sufficient. 2 Gr. Ev. 105 : 
 Rann. Pleading and proving of. 4 Encyc. 
 PI. & Pr. 944-953. Deeds; consideration. 
 2 Dev. Deeds, 806-834 ; Jackson v. Cleve- 
 land ; Cooch. 
 
 Contract under seal imports a consideration. 
 Ans. Conts. 49 : cases, Bish. 103-109, 119, 
 120 ; Barrett, 65 Vt. 431, 36 Am. St. 876, 
 n. ; Rann, 312. Contra, Winter, 2 Colo. 
 App. 259. But fraud or illegality may be 
 shown to a sealed contract. Collins v. 
 Blantern. See Hitchcock v. Coker, supra. 
 
 If under seal, no consideration need be 
 proved. It is prima facie presumed ; other- 
 wise the consideration must be proved. U. 
 S. v. Linn, 15 Pet. 290 ; Aller, 40 N. J. 
 Law, 446, Huff. & W. Conts. 82 ; McMil- 
 lan, 23 Minn. 257, Huff. & W. 54. Amount 
 may be shown orally. Jackson v. Cleve- 
 land ; Christmas. 
 
168 
 
 DATUM POSTS. 
 
 Leading Cases. — 311. Cumber. 
 
 Deed cannot be defeated for want of con- 
 sideration. Jackson v. Cleveland : 2 Dev. 
 Deeds, 834. But may be for fraud. Mc- 
 Arthur, Phil. Law (N. CO, 317, 93 Am. 
 Deo. 593, n. ; Collins v. Blantern. 
 
 Rescission for failure. McCardle, 92 Ga. 
 198, 44 Am. St. 85, n. 
 
 A gratuitous promise under seal is binding. 
 Ans. Conts. 49, n. See Gibson v. Warden ; 
 Cooke v. Oxley, 321. 
 
 Receipts; effect of, generally. 2 Chit. Conts. 
 1118-1122, 1 Add. 341, 2 Wh. Bv. 1064- 
 1071, 1365, 1 Gr. Ev. 212, Tobey. Under 
 seal. Ellis, 389 ; 2 Wh. Ev. 1063. Lang- 
 head : 209 Pa. 368, 103 Am. St. 1014 (re- 
 ceipt in full; effect). 
 
 Wane died after trial and before judg- 
 ment was entered, which, however, was ac- 
 cordingly done upon the authority of the 
 maxim : Actus curiw neminem gravabit. 
 
 312. RANK v. HUGHES (1797), 7 Term 
 Rep. (D. & E.) 350 (reported in note), 
 4 Bro. P. C. 27, 1 Lang. Cas. Conts. 187, 
 6 Rul. Cas. 1-43, n. ; Pinch, Case, 275 ; 
 stated, Ans. Conts. 69, Keener, Sel. Conts. 
 379, Mews" E. C. L., 2 Kent, 450, 465 ; 
 cited, 2 Rand. Com. Paper, 557, 1 Pars. 
 Conts. 442, 1 Chit. 24, 64, 372, Ans. 42, 
 69, 1 Add. 3, Laws. 91, Whart. 514, 523, 
 684, Sto. 2, 10, 361, 512, 558, Clark, 69, 
 153, 185, Ham. 263, 282, 314, 1 Page, 
 270 ; 9 Cyc. 310 ; §§ 36, 37, 39, 78, 113, 
 119, 148, Hughes' Conts., 2 Wh. Ev. 853, 
 1 Best, Ev. 220, 2 id. 429, And. Am. Law. 
 
 Cited, p. 23; § 13, Hughes' Proc; §§ 283, 
 313, Gr. & Rud. 
 
 Rami stated : H., the executrix of J. Hughes, 
 promised in writing "to answer damages 
 out of her own estate," for no considera- 
 tion. (See Eastwood v. Kenyon, 336 ; Lee 
 v. Muggeridge, 318.) It was contended 
 that under the Statute of Frauds no con- 
 sideration was necessary, and that Pillans, 
 3 Burr, 166, Finch, Case, 263, Ham. 
 Conts. 314, was authority. But these 
 views were rejected. Held, a considera- 
 tion was essential. 
 
 For a long time it had been held that 
 a simple contract, if in writing, stood on 
 the footing of a deed as to a considera- 
 tion. But Rann introduced a different 
 rule. For this it should be remembered. 
 It is an epoch marking case. 
 
 A consideration must be alleged and proved 
 in all parol or oral or unsealed agree- 
 ments. Rann ; De non apparentibus ; Bro. 
 Max. 753. See Commercial Paper ; 2 
 Best, Ev. 429, 1 id. 220, 2 Kent, 450, 465. 
 Want of consideration does not vitiate a 
 hill or note in the hands of a bona fide 
 purchaser. Swift : cases. 
 
 Statute making contracts void, allows 
 no recovery thereon by any one. Ans. 
 Conts. 178, n. ; Patton, 5 Mich. 505 ; Redf. 
 & B. L. C N. & B. 240, n. 
 
 Consideration; contracts. A consideration is 
 necessary to support a contract. Ex nudo 
 pacta non oritur actio (no cause of action 
 arises out of a bare promise) . 
 
 Lampleigh ; Cumber ; Stilk ; Reynolds, 
 sub, Stilk ; Vadakin : 11 ; Wane ; Hogins : 
 379 ; Coggs : 350 ; Harris, 23 Gratt. (Va.) 
 
 Leading Cases. — 312. Eann. 
 
 751; Fisher, 3 EI. & Bl. 642 (77 E. C. 
 L. R.). 
 
 It is still held that it is the lawful 
 right of parties to estop themselves from 
 questioning the consideration of a con- 
 tract ; also that statutes will yield to the 
 contract ' the parties have made. Aller, 
 40 N. J. L. 446, Huff. 6 W. Conts. 82 
 (a deed imports a consideration) ; Jack- 
 son v. Cleveland. 
 
 A sealed instrument is called a specialty — 
 a formal contract. It derives its validity 
 from the form alone and not from the fact 
 of agreement. Ans. Conts. 25, 45, 239. 
 A deed is established by proving its seal- 
 ing and delivery. Ans. Conts. 240. From 
 these two facts there arises and attaches 
 Probatis extremis prasumuntur media and 
 Res ipsa loquitur. The consideration is 
 presumed. Jackson v. Cleveland. But 
 exceptions to this rule are found in cases 
 of fraud and illegality (Collins v. Blan- 
 tern), or contracts in restraint of trade. 
 Mallan : 373 ; Ellis : 389 ; Bish. Conts. 
 103-139. What is constructed of fraud, 
 • justice will tear down. Ex dolo malo. 
 
 Commercial paper may be attacked on wider 
 grounds than can be a specialty, except 
 when in the hands of an innocent holder. 
 Swift. The execution of, delivery and 
 consideration must be proved, if issue is 
 made upon those or other requisites of 
 such paper. 
 
 Why procedure and construction are 
 so important in contracts may be gath- 
 ered from such cases as Cutter, Rann 
 and notes to Lampleigh. 
 
 At the base of the law of contract lie 
 the rules of procedure. The rules of con- 
 tract and of procedure act and react 
 upon each other. Beaumont : 367. They 
 are interactions. Preface, Hughes' Proc. 
 
 That a consideration moved at the promisor's 
 "instance and request" is equally a great 
 question in both contract and in proce- 
 dure. Notes, Lampleigh. It is essential 
 for a contract, also a cause of action. 
 
 The classification of contracts are : 1. 
 Judgments ; 2. Deeds ; 3. Simple contracts. 
 For the first two a consideration need not 
 be alleged and proved ; but the latter — ■ 
 the simple contract requires it, except in 
 the case of commercial paper. These 
 classifications depend upon questions of 
 procedure — of pleading and of proof. 
 
 313. STILK v.MYBICX (1809), 2 Camp. 
 317, 11 R. R. 717 ; stated, 10 Pa. 39, 49 
 Am. Dec. 572, Huff. & W. Conts. 176, 
 Finch, Cas. 314, Ans. Conts. 82, Laws. 103, 
 Whart. 503, 1 Pars. 451, 1 Chit. 61, Sto. 
 703, Clark 186, Ham. Conts. 332: cited, 
 Gr. Pub. Pol. 333, 1 Dill. Corp. 139, Mews' 
 E. C. L. 
 
 Stilk stated : Consideration. It is no con- 
 sideration for a man to promise to do what 
 in law he is already bound to do. Stilk ; 
 Reynolds v. Nugent (1865), 25 Ind. 328; 
 34 L. R. A. 38 ; Cumber : 311 ; Rann : 312. 
 
 Stilk Case stated: To arouse sailors to put 
 forth the greatest possible exertion to 
 save a ship in a dangerous storm their 
 
DATUM POSTS. 
 
 169 
 
 Leading Cases. — 313. Stilk. 
 
 captain told them if they would save the 
 ship that they should have extra pay ; they 
 did so but they could not recover for the 
 reason sailors- are bound by their con- 
 tracts to do all within their power to 
 save passengers, ship and cargo. The 
 captain's promise to reward them beyond 
 this, for extraordinary efforts, in a storm, 
 to save the subjects of their trust, is 
 without consideration. Omne majus. 
 
 The next case will further illustrate the 
 above rule : A township contracted with a 
 volunteer recruit to enlist for a stipu- 
 lated bounty. Afterward another town- 
 ship offered him an increased amount. 
 Then the first township, to which he was 
 already obligated, offered him an increase 
 of bounty. In the action for this addi- 
 tional amount, held, that he could not 
 recover, upon the ground that it was no 
 consideration to do what he was already 
 bound to do. 
 
 Reynolds," supra; 34 L. R. A. 38, Laws. 
 Conts. 103, 1 Pars. 452 ; 1 Page, 312 ; 
 Cumber, Morgan, 3 Colo. 551, 554 ; Ayers, 
 52 Iowa 478. 
 
 One cannot charge extra for what he is al- 
 ready obligated to do. Collins v. Godefroy 
 (1831), 1 Barn. & Adol. 950 (20 E. C. L. 
 R.) (witness can contract for legal fees 
 only) ; Cumber ; Stroud, 139 Cal. 274, 96 
 Am. St. Ill (forbearance of one debt if 
 one would pay another debt). 
 
 A thief is not entitled to a reward 
 offered by the owner for a return of the 
 stolen property. Schirm, 103 Md. 541, 
 7 L. R. A. N. S. 175., n. Nullus com- 
 modum. 
 
 Public officers are bound by the princi- 
 ple in Stilk ; Gr. Pub. Pol. 326-368 ; In 
 pari delicto, etc. ; Lecatt, 3 Port. 115, 29 
 Am. Dec. 249 (attorneys subsequent con- 
 tract). Nor can attorneys contract re- 
 lating to a subject matter 'in litigation. 
 Keech. 
 
 Officers cannot claim rewards for arrests, for 
 these they are bound to make. Williams : 
 322 ; St. Louis R. R., 51 Ark. 504, 14 Am. 
 St. 66; Lees, 120 Cal. 262, 40 L. R. A. 
 355 ; Hogan, 179 111. 150, 45 L. R. A. 166 ; 
 Morris, 79 Tex. 141, 11 L. R. A. 398, n. 
 (officers may recover reward) ; Buck, 109 
 Cal. 504, 30 L. R. A. 409 (attorneys). A 
 promise by a third person to pay more to 
 perform an existing obligation is sufficient. 
 Abbott, 163 Mass. 433, 47 Am. St. 465. 
 Contra cases : Smith : 10 Pa. 39, 49 Am. 
 Dec. 572 ; Huff. & W. Conts. 176. 
 
 Promise to perform existing contract. Coy- 
 ner, 10 Ind. 282, Huff. & W. Conts. 177 ; 
 34 L. R. A. 33-45 : Cumber. 
 
 Continuing consideration. Beale, 3 Bing. N. 
 C. 850 (32 B. C. L. R.) ; Trueman. 
 
 314. COOK V. BRADLEY (1838), 7 
 Conn. 57, 18 Am. Dec. 79, Huff. & W. 
 Conts. 133 ; cited. Rand. Com. Paper, Ans. 
 Conts., Pars., 1 Chit., Bish., 1 Add. '4, 
 Smith, 202, Whart., Sto., Clark, Ham., 1 
 Page, Gr. Pub. Pol. 150, 2 Kent, 208, 464- 
 464 ; Howe's Civil Law 201 ; Hughes' 
 Conts. 
 
 Coofc stated : C. Sr. was indigent ; C. Jr. 
 was rich. The latter, learning that his 
 poor father had become indebted to B., 
 wrote and promised B. that he felt obli- 
 gated and would pay his father's debt 
 
 Leading Cases. — 314. Cook. 
 
 of $60. B. sued C. Jr., but was defeated 
 because this was merely a moral obliga- 
 tion. Lee : 318. Children are not legally 
 bound to support parents. Cook ; Bon 
 Homme County, 13 S. D. 309, 50 L. R. 
 A. 351, n. (liability to pay for indigent 
 relatives). 
 Consideration. Moral obligation insufficient. 
 Cumber ; Mills ; Trimble, Ky. 53 L. R. A. 
 353-376, ext. n. Beaumont: 367. 
 
 315. BDIKLEY V. IAHDON (1818), 2 
 Conn. 404: cited, 1 Chit. Conts. 69, Bish. 
 89 ; Laws. 107, "Whart. 513, Sto. 596, 
 Clark, Conts. 198, Ham. Conts. 324, 9 
 Cyc. 358, Hughes' Conts. 
 
 Consideration. Promise founded on a past 
 consideration is not binding. Bartholo- 
 mew ; Beaumont. A promise to pay one 
 for having indorsed, is not equal in law 
 to a promise to pay if one would indorse. 
 Bulkley ; Cumber : 311 ; Bro. Max. 794. 
 
 A past consideration moved by a previ- 
 ous request will support a promise. Lamp- 
 leigh. 
 
 316. MILLS v. WYKAH (1825), 3 Pick. 
 
 207, Langd. Conts. 370, Huff. & W. Conts. 
 201, Pattee Cas. 284. Howe's Civil Law 
 201 ; 1 Page 319 ; 9 Cyc. 350 ; Bish. 90, 
 1 Pars. 335, 446, 1 Chit. 53, 58, Ans. 80, 
 Laws. 103, Smith, 195, n., Whart. 512, 
 Clark, 180, 198, 201, 204, Sto. q. v. Ham. 
 Conts. 323, Greenh. Pub. Pol. 150, 2 Kent, 
 
 208, 465 ; cited, § 72, Hughes' Conts. 
 Mills stated: W.'s adult son was abroad, 
 
 sick and needy. M., without a previous 
 request by W., supplied the son with 
 medicine, clothes, etc. ■ Afterward the 
 father promised M. to pay him for these. 
 In an action upon this promise M. was 
 defeated, upon the ground that he volun- 
 tarily supplied the son ; the defendant had 
 not previously requested the same. 
 
 In Lampleigh : 301, the consideration 
 moved upon the request of the promisor. 
 From that he may show he stands a 
 wronged party. The wronged party from 
 the promise is an indispensable element 
 for the cause of action in procedure. 
 Lampleigh ; Cumber : cases. If the con- 
 sideration moved from the promisee from 
 his own spontaneous volition, as in Bar- 
 tholomew, then a subsequent promise con- 
 stitutes no contract ; otherwise if the 
 promisor requested it, and afterward 
 promised, as in Lampleigh. These dis- 
 tinctions must be remembered. A moral 
 consideration is nonenforceable. Cumber : 
 Boston v. Dodge (1818), Blackf. (Ind.) 
 18-21, n. (promise to pay a trespasser for 
 improvements if he will surrender pos- 
 session). 
 
 Contract; consideration. A promise to pay 
 for goods already furnished, without a 
 previous request, is a nudum pactum. 
 Lampleigh ; Bartholomew : 302 ; Cumber ; 
 Wambaugh, Study of Cas. 52 ; Beaumont : 
 367. Contra: Lee: 318. 
 
 A post election promise to pay an elector for 
 his support is a nude pact, and is im- 
 moral also. Dearborn, 3 Met. 155, Smith, 
 Conts. 195, n. Bartholomew : 302. 
 
 A warranty must be during the treaty of 
 
170 
 
 DATUM POSTS. 
 
 Leading Cases. — 316. Mills. 
 
 sale. Hopkins : 378. See Oral Evidence. 
 Laws. Conts. 91. 
 
 317. WHITE v. BLUETT (1854), 23 L. 
 J. Exch. 36 (24 E. C. L. R.), 434, 2 C. L. 
 R. 301 ; Bro. Max. 750 ; cited, 1 Pars. 
 Conts. 455, Ham. 317, Laws. 102, Sto. 544, 
 548, Bish. 44, 1 Beach, 153, Clark, Conts. 
 183 ;- 1 Mews' E. C. L. See Crowther ; 
 Callisher; cited, § 122, Hughes' Conts. 
 
 White case stated: Vague and unreal con- 
 sideration insufficient. W., executor of B. 
 Sr., sued B. Jr., a son, on a note he had 
 given his father. B. Jr. pleaded that 
 his father agreed to discharge him from 
 the payment of the note if he would not 
 pester or "bore" his father about ad- 
 vancements made other heirs and the con- 
 ceived equities of the son as to the 
 descent and distribution of the father's 
 estate. Held, not a defense, and that B. 
 could recover. A consideration must be 
 real. Cumber : 311. Also relate to a 
 lawful subject matter. Beaumont : 367. 
 
 A mere nullity or absurd thing will never 
 constitute a consideration. What is en- 
 forceable in law must be a real and sub- 
 stantial injury ; otherwise courts are mis- 
 employed. Bro. Max. 329, n. Fabula non 
 judicium. Courts were not created and 
 ordained to preside over and consider 
 mockeries, myths and moot cases. See 
 Jurisdiction. Nor to sit as bandits 
 dividing booty, nor to enforce honor 
 among thieves and violators of law and 
 what concerns public policy. Beaumont : 
 367 ; In pari. And this affords an ex- 
 tended view of jurisdiction and procedure, 
 which we can here only suggest. See 
 Lampleigh : 301 ; Compromise ; Cause op 
 Action ; Beaumont : 367. 
 
 318. LEE v. MUGGEBIDGE (1813), 5 
 Taunt. 36 (1 E. C L. R.), Ewell, L. C 
 Inf., 1 Langd. Conts. 333, 1 Chit. Conts. 
 52-56, Ans. 100, 101, Bish. 44, 1 Beach, 
 153, 1 Pars. 145, Ham. 323, 328, Smith, 
 169, Whart. 512, 513, Clark, q. v., Sto. 
 Conts., q. v., 1 Page 320 ; Mews' E. C. L., 
 2 Kent, 466 ; cited, 1 Rand. Com. Paper, 
 293, 2 id. 487, 1 Danl. Nego. Insts. 249, 
 1 Pars. N. & B. 79, Bro. Max. 751, 2 
 Greenl. Ev. 114, 39 Am. St. 735. 
 
 Moral obligation a good consideration for a 
 promise. A moral obligation is a suffi- 
 cient consideration for a promise to pay. 
 A feme covert having an estate settled 
 to her separate use, gave a bond for pay- 
 ment by her executors of money ad- 
 vanced, at her request, on security of that 
 bond, to her son-in-law. After her hus- 
 band's decease, she wrote, promising that 
 her executors should settle the bond. 
 Held, that assumpsit will lie against the 
 executors on this promise of the testa- 
 trix. 
 
 See Eastwood: 336, Cf. Mills: 316, 
 which is the generally accepted law. Beau- 
 mont : cases (Wennall v. Adney) ; Cook: 
 314, 1 Chit. Conts. 53-55 ; Porterfleld, 47 
 Miss. 165, 12 Am. Rep. 329-338 ; Fergu- 
 son v. Harris (1893), 39 S. C. 323, 39 
 Am. St. 731-746, ext. n., citing Eastwood, 
 Mills, Beaumont, Cook and Lee ; Craig v. 
 Van Bebber, Robinson, 78 Md. 59, 44 Am. 
 St. 266, n. (sometimes a moral considera- 
 
 Leading Cases. — 318. Lee. 
 
 tion is sufficient for a promise) ; Lycom- 
 ing, Bailey, 167 Pa. 569, 46 Am. St. 691. 
 319. HENDBICK V. LINDSAY (1876), 
 93 U. S. 143, 1 Beach, Conts. 202, 3 Page. 
 1307, 9 Cyc. 380, Whart. 785, Clark, 
 Laws., Ham. Conts. 351 ; cited, §§ 334, 
 342, Hughes' Proc. ; §§ 128-132, Hughes' 
 Conts. 
 
 IlendricJc stated: Consideration; privity. 
 Consideration need not move from prom- 
 isee ; it is sufficient if it move from a 
 third party. 
 
 Hendrick ; Cumber ; Barker, 2 Denio 45, 
 43 Am. Dec. 726-740, n., 1 Chit. Conts. 
 74-78 ; Dering. See Res inter alios acta, 
 etc. ; Bassett : 53 Wis. 319 ; Huff. & W. 
 Conts. 428 ; National Bk., 98 U. S. 123 ; 
 Hall, 17 Mass. 575 ; cited. Chit. Conts. ; 
 Baxter v. Camp, 71 Conn. 245, 71 Am. St. 
 176-207, ext. n. (contracts for benefit of a 
 third person), 3 Page 1306-1322, Fan- 
 ning: 126 Wis. 538, 4 L. R. A. N. S. 667- 
 678, n. ; Bourne v. Mason (1669), 1 Ven- 
 tris, Lang. Conts. 170 (some relationship- 
 of succession necessary) ; Hicks, 144 Mo. 
 495, 66 Am. St. 431, n. (elements of the 
 contract) ; 1 Chit. Conts. 74-77 (conflict- 
 ing views noted). See Lampleigh: 301; 
 Winterbottom ; Langridge : Heaven. Jef- 
 ferson v. Asch, 53 Minn. 446, 25 L. R. A. 
 257-280, ext. n., 39 Am. St. 618 ; Brewer 
 Lumber Co., 28 Or. 565, 52 Am. St. 807: 
 Linneman v. Moross, 98 Mich. 178, 39 Am. 
 St. 528-535, ext. n. ; West, 39 Kan. 93, 7 
 Am. St. 530. 
 
 Money had and received; privity not essen- 
 tial. Soderberg, sub, Money Had and Re- 
 ceived. 
 
 Who may sue. Baxter, supra; Jittsfleld Co., 
 71 N. H. 522, 60 L. R. A. 116. 
 
 One may buy a thing for a third person, 
 who may sue for an injury caused by the 
 thing bought for him. Langridge; Thomas 
 (drug belladonna case). 
 
 Railroad company may take advantage of a 
 contract made by a porter with the Pull- 
 man Co. to assume all risks of the service. 
 Russell, 157 Ind. 305, 55 L. R. A. 253, n. 
 
 Privity in contract: Matanaphy: 125 la. 
 719, 106 Am. St. 332 n. Liability of 
 abstractor of title to a grantee. Western 
 Co. : 31 Mont. 448, 107 Am. St. 435, n. : 
 Galbraith v. 111. Steel Co. 
 
 A daughter may take advantage of fraudu- 
 lent representations made her mother by 
 a third person to induce the mother to 
 marry the father. Piper, sub, Ashby : 
 272. Nullus commodum, etc. 
 
 Power of insured to destroy rights of the 
 beneficiary. Union Ins. Co., 62 Ohio St. 
 385, 49 L. R. A. 737-755, ext. n. (the 
 power is denied). 
 
 And the third person may sue upon such 
 contract. Hendrick, Pom. Rem. 139, 3 
 Pom. Eq. 1206-1209 ; V. P. R. R., 4 Colo. 
 App. 325 ; Howsmon, 119 Mo. 304, 41 
 Am. St. 654-662 : cases ; 23 L. R. A. 146 ; 
 see 2 Gr. Ev. 109 ; St. Louis, 133 Mo. 
 561, 54 Am. St. 695 ; Enos, 96 Wis. 151, 
 65 Am. St. 38, n. ; Tweeddale, 116 Wis. 
 517, 96 Am. St. 1003 (no consideration 
 necessary from the third person). As- 
 sumption contract not subject to annul- 
 ment after acceptance by mortgagee with- 
 
DATUM POSTS. 
 
 171 
 
 Leading Oases. — 319. Hendrick. 
 
 out his consent. Gifford, 117 N. Y. 257, 
 15 Am. St. 508, 6 L. R. A. 610. 
 
 Mortgage; rights of mortgagee. Grantee of 
 mortgagor assuming mortgage debt may 
 be sued by mortgagee. Fiske, 124 Mass. 
 254, 26 Am. Rep. 659 ; Tiede. R. P. 332, 
 Wilt. Mort. Fore. 225, 2 Warv. Vend. 654, 
 655 ; see Pom. Eq. 797 ; Campbell, 71 N. 
 Y. 26, 27 Am. Rep. 5 : cited, 2 Warv. 
 Vend. 659, 2 Dev. Deeds, 1047-1099 
 (deeds subject to mortgage). 
 
 What amounts to an assumption of mortgage 
 indebtedness. 2 Whart. Conts. 786a; El- 
 liott, 108 U. S. 132, 1 Jones, Mort. 735- 
 770 ; Hopper, 52 Kan. 703, 39 Am. St. 
 363, n. (contract must be clear and ex- 
 plicit) ; Boone, 129 111. 466, 5 L. R. A. 
 276, n. 
 
 Vendee becomes principal debtor and vendor 
 a surety. 1 Brandt. Sur. 37. See 3 Pom. 
 Eq. 1206-1298, Pom. Rem. 139 ; 2 Warv. 
 Vend. 654, 671 ; Green, 54 N. J. Eq. 387, 
 55 Am. St. 577, n. 
 
 One cannot acquire rights under a contract 
 to which he is not a party. 2 Wbart. 
 Conts. 784, Ans. 212. This was the 
 former rule. But a stranger could always 
 buy the negotiable instrument ; and now, 
 whatever survives or descends to heirs 
 and representatives is assignable. As- 
 signatus. Creditor has election of reme- 
 dies ; procedure. 2 Warv. Vend. 660. 
 
 Receiver of a telegram may sue for damages 
 caused from non-delivery. West. U. Tel. 
 Subrogation. Dering. Novation. Tatlock. 
 
 Municipal contracts for citizens; they can- 
 not sue upon. Fitch, 139 Ind. 214, 47 
 Am. St. 258, n. 
 
 A man cannot incur liabilities from a 
 contract to which he was not a party. 
 Crumlish, 38 W. Va. 390, Huff. & W. 
 Conts. 412 (paying another's debt, form- 
 erly not payment) . 
 
 Generally. 2 Warv. Vend. 658-669, 2 Jones, 
 Mort. 735-670, 2 Dev. Deeds, 1047-1090, 
 1 Beach, Eq. 455-456 ; 18 Cent. L. J. 23. 
 Novation. See Novation. (Promise to 
 accept commercial paper.) 
 
 320. BOSTON ICE CO. V. POTTER 
 (1877), 123 Mass. 28, 25 Am. Rep. 9, 
 Huff. £ W. Conts. 243, 438, Laws., Smith 
 157, n., Whart., Pars., 1 Page 73, Bish., 
 Ham. ; §§ 1, 43, 72, 73, 148, Hughes' 
 Conts., Clark, Keener, Quasi C. 229, Ans. 
 126, n. ; stated, 1 Page 73, 1 Benj. Sales, 
 59, Mech. Sales 267, 268 ; Arkansas Val- 
 ley Co., 127 U. S. 379 ; Mech. Ag., Huffc.- 
 Tiff, 1 Ben]. Sales. 
 
 Cited, §§ 158, 201, 227, 342, Hughes' Proc. ; 
 §§ 53, 164, 280, Gr. & Rud. 
 
 Boston case stated: Assent is essential for 
 a contract. Potter quit buying ice from 
 the Boston Ice Co. and closed his ac- 
 counts therewith, and contracted with the 
 Citizens' Co. for his supply. Afterwards, 
 the Boston Co. bought the Citizens' Co., 
 also the privilege of supplying their cus- 
 tomers and under this contract recom- 
 menced supplying P. with ice, who, not 
 knowing of the change, used the ice. In 
 an action to recover it was held P. was 
 
 Leading Cases. — 320. Bost. Ice Co. 
 
 not liable. An important and an instruc- 
 tive plea of assent (Non hcec in fcedera 
 veni) as an element of contract will ap- 
 pear from the following quotation : 
 
 "One has a right to select and determine 
 with whom he will contract, and cannot 
 have another person thrust upon him 
 without his consent. It may be of impor- 
 tance to him who performs the contract, 
 as when he contracts with another to paint 
 a picture, or write a book, or furnish ar- 
 ticles of a particular kind, or when he 
 relies upon the character or qualities of 
 an individual, or has, as in this case, rea- 
 sons why he does not wish to deal with a 
 particular party. In all these cases, as 
 he may contract with whom he pleases, the 
 sufficiency of his reasons for so doing 
 cannot be inquired into. If the defendant, 
 before receiving the ice, or during its de- 
 livery, had received notice of the change, 
 and that the Citizens' Ice Co. could no 
 longer perform its contract with him, it 
 would then have been his undoubted right 
 to have rescinded the contract, and to de- 
 cline to have it executed by the plaintiff. 
 But this he was unable to do, because the 
 plaintiff failed to inform him of that which 
 he had a right to know. If he had re- 
 ceived a notice and continued to take the 
 ice as delivered, a contract would be im- 
 plied." 
 
 Boulton stated: Brocklehurst a manufacturer 
 had been supplying Jones with articles. 
 Brocklehurst sold out to Boulton ; of this 
 Jones was not informed, and he sent an 
 order for further supplies, addressed to 
 Brocklehurst, which his successor sup- 
 plied, and also struck out the name 
 "Brocklehurst" and inserted Boulton's. 
 name in the order. An invoice was after- 
 ward sent in by the plaintiff to the de- 
 fendants, who said they knew nothing of 
 him. Boulton sued Jones for the goods 
 sold, and failed for the reasons given in 
 Boston Ice Co., which also quotes this 
 case. 2 H. & N. 564, Finch, Cas. 450, 
 Smith, Conts. 201, Laws. 213, Whart. 180, 
 184, 854, Ham. Conts. 53, 355, 12 Mews' 
 E. C. L. 568 (sale of goods), British 
 Wagon Co., 5 Q. B. D. 152 ; 1 Benj. Sales, 
 608, q. v.; 1 Mech. Sales, 267, q. v.; 
 Ewart, Estop. 528, Huff. Ag., Tiff. 
 
 "Pollock, C. B. : The point raised is, wheth- 
 er the facts proved did not show an in- 
 tention on the part of the defendants to 
 deal with Brocklehurst. The plaintiff, 
 who succeeded Brocklehurst in business, 
 executed the order without any intimation 
 of the change that had taken place, and 
 brought this action to recover the price 
 of the goods supplied. It is a rule of law, 
 that if a person intends to contract with 
 A., B. cannot give himself any right un- 
 der it. Here the order was given to 
 Brocklehurst. Possibly Brocklehurst might 
 have adopted the act of the plaintiff in 
 supplying the goods, and maintained an 
 action for their price, but since the plain- 
 tiff has chosen to sue, the only course the 
 defendants could take was to plead that 
 there was no contract with him." 
 
 "Martin, B. : I am of the same opinion. 
 This is not a case of principal and agent. 
 If there was any contract at all it was 
 not with the plaintiff. If a man goes to 
 a shop and makes a contract, intending 
 
172 
 
 DATUM POSTS. 
 
 Leading Cases. — 320. Bost. Ice Go. 
 
 it to be with one particular person, no 
 other person can convert that into a con- 
 tract with him." 
 
 "Bramwell, B. : The admitted facts are, 
 that the defendants sent to a shop an or- 
 der for goods, supposing they were dealing 
 with Brocklehurst. The plaintiff, who 
 supplied the goods, did not undeceive them. 
 If the plaintiff were now at liberty to sue 
 the defendants, they would be deprived of 
 their right of set-off as against Brockle- 
 hurst. When a contract is made in which 
 the personality of the contracting party 
 is, or may be, of importance, as a con- 
 tract with a man to write a book or the 
 like, or where there might be a set-off, no 
 other person can interpose and adopt the 
 contract. As to the difficulty that the de- 
 fendants need not pay anybody, I do not 
 see why they should, unless they have 
 made a contract, either express or im- 
 plied. I decide the case on the ground 
 that the defendants did not know that 
 plaintiff was the person who supplied the 
 goods, and that allowing the plaintiff to 
 treat the contract as made with him would 
 be a prejudice to the defendants." 
 
 "Channell, B. : In order to entitle the plain- 
 tiff to recover he must show there was a 
 contract with himself. The order was 
 given to the plaintiff's predecessor in busi- 
 ness. The plaintiff executed it without 
 notifying the defendants who it was who 
 executed the order, when the invoice was 
 delivered in the name of the plaintiff. It 
 may be that the defendants were not in a 
 situation to return the goods. Rule ab- 
 solute." 
 
 Same case stated in 1 Benj. Sales, 79- 
 81 ; Bartholomew : 301 ; Mech. Ag. 600 ; 
 First Nat. Bank, 101 U. S. 43. 
 
 One may choose with whom he will contract. 
 Hall, 47 Mich. 589 ; Thornton, 38 Mich. 
 639 (contract cannot arise from the action 
 of one party alone where the other has 
 no power to. prevent his action). Bar- 
 tholomew: 302. 
 
 Great cases in contract law. Cooke : 321 
 (both sides bound, or neither) ; Boston 
 Ice Co. (mistake) ; Lampleigh ; Bartholo- 
 mew ; Beaumont: 367 (consideration); 
 Cumber: 311 (accord and satisfaction); 
 Swift v. Tyson (commercial paper) ; 
 Thomson: 342 (agency); Cutter: 308 
 (entire contract); Pasley : 375; {Caveat 
 emptor — warranty) ; Holman : 363 ; (il- 
 legal contracts) ; Taylor v. Laird (1856), 
 25 L. J. Ex. 329 ; stated, Ans. Conts. 15 
 (silence does not give consent where offer 
 is not communicated). A contract de- 
 pends on consent — assent express or im- 
 plied — or a tort could be enforced. § 35 
 Hughes' Conts. ; Bull. A ship captain re- 
 signed during the voyage, and for the 
 remainder acted as a sailor, voluntarily, 
 for which he sued. Held, he could not 
 recover. 
 
 Statute of frauds cases: Birkmyr : 339 
 (debt, default or miscarriage of another) ; 
 Peter : 340 (contracts not to be performed 
 in one year) ; Wain : 335 (memorandum 
 must express the consideration) ; East- 
 wood: 336 (promise to answer for debt, 
 default or miscarriage of another) . 
 
 Leading Cases. — 320. Bost. Ice Co. 
 
 Statute of limitation cases : Whitcomb. 
 Infants: Craig. See Infants. 
 
 Drunkards : Gore : 416, sub, U. S. v. Drew 
 (criminal liability of). Aliens: Gris- 
 wold. Insane persons : Molton : 416. 
 
 Contracts. Acceptance and use of a benefit 
 creates no contract to pay for it through 
 a mistake as to the person supplying it. 
 It takes two to make a contract. Mis- 
 takes as to person supplying a thing 
 avoids liability to pay for it. Boston Ice 
 Co. ; Bartholomew ; Cumber ; Keech ; 
 Boulton v. Jones; Mech. Ag. 760 ; Whart. 
 438, Ans. Conts. 121, Keener, Quasi 
 Conts. 358-360. One has a right to de- 
 termine with whom he will deal, and to 
 know this one cannot be bound to the 
 whole community. Ans. Conts. 5. This 
 is an essential element, and if lacking, it 
 matters not that goods were delivered and 
 consumed. Non hwc, etc. Boston Ice Co. 
 (where Boulton v. Jones is stated at 
 length) ; Ans. Conts. 125 : cases ; 1 Beach, 
 Eq. 337. A guaranty to a firm ceases 
 with a change of its members. Barclay 
 v. Lucas ; Backhouse, sub, Wain : 335 ; 
 12 Rul. Cas. 476-482, n. ; Foley, 119 
 Iowa, 457, 97 Am. St. 324 (funeral ex- 
 penses may be recovered though fur- 
 nished without request. A request may 
 be implied from the nature of the sub- 
 ject matter). 
 
 One cannot make himself the creditor of 
 another without his assent, express or im- 
 plied. See Hendrick : 319 ; Ans. Conts. 
 209 ; Pars. N. & B. 208. 
 
 Under an intention to contract with A., B. 
 himself can have no rights under it. 
 Boulton, supra. A promise may be im- 
 plied from acceptance of goods or benefits. 
 Wh. Ag. 371. Mistake and failure of 
 consideration will vitiate a contract. 1 
 Benj. Sales, 606-635. Assent and knowl- 
 edge essential for a contract. Boston ; 
 Cooke : 321 ; Smout ; Huffc. Ag. 183, 185 
 (fictitious principal) ; 200 (when neither 
 principal or agent is bound) ; Ans. Conts. 
 209. 
 
 Duress avoids contracts. Sasportas ; 
 Astley ; Skeate : 22. 
 
 Necessities may be furnished irresponsi- 
 ble persons, for which they will be liable. 
 Peters ; Expressio eorum, etc. ; Wh. Ag. 
 374. 
 
 Certainty; contracts must be certain. Kel- 
 ley : 304 ; Kyle : 348 ; Zaleski : 306 ; Gor- 
 don ; Williams : 322. There must be : 
 1. A person able to contract. Molton 
 (lunatics). 2. A person able to be con- 
 tracted with. Molton. 3. A thing to be 
 contracted for. 4. A good and sufficient 
 consideration, or quid pro quo. Rann : 
 312 ; Cumber : 311. 5. Clear and ex- 
 plicit words to express the contract or 
 agreement. Wain. 6. The assent of 
 both the contracting parties. Justice, 42 
 N. Y. 493, 1 Am. Rep. 576, Ans. Conts. 9. 
 See § 4, Hughes' Conts. 
 
 Gratuitous services or contributions, how- 
 ever valuable, constitute no contract; 
 
DATUM POSTS. 
 
 173 
 
 Leading Cases. — 320. Bost. Ice Co. 
 
 there must, from the inception, be a good 
 or bad contract. Lampleigh ; Bartholo- 
 mew ; Mech. Ag. 600 : Keener, Quasi 
 Conts. 341-362 : cases ; U. S. v. Pac. R. 
 R., 120 U. S. 227, Zottman, 20 Cal. 96- 
 107, 81 Am. Dec. 96. See Hitchcock v. 
 Galveston (acceptance of benefit creates 
 an obligation). 
 Services rendered for relatives are no oasis 
 for charge, without contract. Sub t Por- 
 ter v. Powell ; Kessler, 87 Wis. 660, 41 
 Am. St. 74; Disbrow, 54 N. J. Eq. 343, 
 33 Am. St. 618; Ellis, 74 Wis. 176, 17 
 Am. St. 125, n., 4 L. R. A. 55-74 ; Ulrich, 
 136 N. Y. 120, 18 L. R. A. 37, n. ; Plate, 
 42 W. Va. 63, 32 L. R. A. 404, n. ; Reinh. 
 Ag. 64. A contract to pay a son must be 
 certain and tangible. Zimmerman, 129 
 Pa. 229, 15 Am. St. 720, n. ; Gerz, 162 
 Pa. 530, 42 Am. St. 842, n. 
 
 An agent dealing for himself as an as- 
 sumed principal cannot in all cases re- 
 cover upon the contract. Boulton, supra; 
 Mech. Ag. 760 ; Whart. Ag. 432 ; Thomp- 
 son : 342. 
 
 An alteration by adding names of mak- 
 ers or sureties, etc., to instruments and 
 releasing others, is by this act analogous 
 in doctrine to Boston ; 3 Rand. Com. 
 Paper, 1344, 1345. Any material altera- 
 tion, prejudicial or otherwise, discharges 
 a surety. Abel : Rees : 334. 
 Payment by a volunteer gives him no rights. 
 Pars. N. & B. 208 ; Ans. Conts. 209. 
 Assumpsit will He for, when. 2 Gr. Ev. 
 101-136 ; Dering. Agent must accept an 
 agency. Whart. Ag. 60. Mutual assent, 
 essentials of. Cooke ; Bish. Conts. 315- 
 334 ; 2 Kent. 477. Offer and acceptance. 
 Cooke v. Boston ; Ans. Conts. 11-36 ; 1 
 Beach, Conts. 35-71. 
 The offer must be intended to create, and 
 be capable of creating, legal relations. 
 Offers in frolic or banter, insufficient. 
 Keller, 11 Mich. 248, 83 Am. Dec. 737 ; 
 Huff. & W. Conts. 71. Marriage the re- 
 sult of frolic or banter is not binding. 
 McClurg, 21 N. J. Eq. 225; Huff. & W. 
 Conts. 72. 
 Reality of consent essential. Mistake as to 
 the nature or existence of a contract will 
 defeat it. Brown : 347 ; Kyle : 348 ; 
 Wheadon : 349. A signature to a note ob- 
 tained by gross deception without the fault 
 of the maker will avoid such note, even 
 in the hands of a bona fide purchaser. 
 Walker, 29 Wis. 194, 9 Am. Rep. 548, 
 Huff. & W. Conts. 238 ; Williams v. Stoll. 
 Mistake as to the identity of a person 
 with whom the contract is made. Boston. 
 Mistake as to the subject-matter or the iden- 
 tity of the thing contracted for. Kyle. 
 Of the existence of the thing contracted 
 for. Gibson, 37 Mich. 380, Huff. & W., 
 Conts. 247 ; Sherwood, sub, Zaleski, 306 ; 
 Hecht, 147 Mass. 335, 9 Am. St. 708, 
 Huff. & W. Conts. 255; Wood, 64 Wis. 
 265, 54 Am. Rep. 610, Huff. & W. Conts. 
 257; Rovengo, 40 Cal. 459, Huff. & W., 
 Conts. 261. Of one party as to the in- 
 
 Leading Cases. — 320. Bost. Ice Co. 
 
 tention of the other. Shelton, 70 Ga. 
 297, Huff. Conts. 262. 
 
 Sales; outline citation. Mechem, Sales; 
 Benj. ; 1 Chit. Conts. 517-659; 2 Add. 
 Conts. 507-574. Tarling : 404. 
 
 Quasi contracts : Implied contracts : Ex- 
 pressio eorum, etc. 1 Beach. Conts. 639- 
 667. See necessaries for infants and 
 married women, the insane- and drunk- 
 ards, and those incapacitated. Whart. 
 Conts. 121. Medical and surgical as- 
 sistance in cases of personal injuries. 
 Reinh. Ag. 85; Cox, 3 Exch. 268 (author- 
 ity of general superintendent to employ 
 surgeon), 1 Chit. Conts. 294, 1 Pars. 47, 
 1 Add. Conts. 119, Sto. Ag. 69, 20 L. R. 
 A. 707, 9 Mews' E. C. L. 927 (Master 
 and servant). In a valuable work 
 (Keener, Quasi Contracts) the subject is 
 discussed under the following heads : 
 
 Recovery of money paid under mistake. 
 Keener, pp. 26-159; Ignorantia facti; 
 Ignorantia juris; Lambon. See Volun- 
 tary Payments. 
 
 Waiver of Torts. Keener, pp. 159-214 ; 
 Smith : 156 ; 1 Beach, Conts. 647. 
 
 Rights of a plaintiff under a contract. 
 Keener, pp. 214-258 ; Cutter : 308. 
 
 1. When the plaintiff's default, is wilful 
 or inexcusable. Keener, pp. 215-231 ; 
 Britton ; Nullus commodum capere, etc. 
 
 2. When the plaintiff relies upon the 
 Statute of Frauds. Keener, pp. 231-240. 
 
 3. Performance by plaintiff impossible. 
 Keener, pp. 241-258 ; Lex neminem cogit 
 ad impossibilia; Actus Dei. 
 
 4. Illegal contract. Keener, pp. 258 
 et seq.; In pari, etc.; Holman : 363. 
 
 Obligation of a defendant in default under 
 a contract. Keener, pp. 267-298. 
 
 1. Illegality as a defense. Keener, pp. 
 267, et seq.; In pari, etc.; Holman: 363. 
 
 2. Contract unenforceable, because of 
 the Statute of Frauds. Keener, pp. 277- 
 292. 
 
 3. Contract unenforceable, because of 
 the impossibility of performance. Keener, 
 pp. 292-298 ; Cutter : 308. 
 
 4. Defendant wilfully or inexcusably in 
 default under a contract. Keener, pp. 292 
 et seq.; Nullus commodum; Cutter: 308. 
 Expressio unius; 1 Beach," Conts. 403-421. 
 
 Recovery for benefits conferred at request, 
 but in the absence of contract. Keener, 
 pp. 315. 
 
 1. Benefits conferred as a gratuity, with 
 knowledge of all material facts. Keener, 
 pp. 315-317 ; Lampleigh ; Bartholomew. 
 
 2. Services rendered gratuitously un- 
 der mistake as to a material fact. 
 Keener, pp. 319-326 ; Bull v. Griswold. 
 
 3. Benefits conferred under mistake as 
 to the existence of a contract. Keener, 
 pp. 326-340 ; White : 303 ; Smout ; Kyle : 
 348. 
 
 Circumstantial evidence of contracts. 
 1 Beach, Conts. 34 ; Moller. 
 
 Recovery for benefits conferred with- 
 out request. Keener, pp. 341-362 ; Lamp- 
 leigh ; Bartholomew ; Boston ; Garrey, 67 
 
174 
 
 DATUM POSTS. 
 
 Leading Cases. — 320. Bost. Ice Co. 
 
 Wis. 512 (physicians attending under mis- 
 take of patient may recover). 
 Recovery for improvements made upon the 
 land of another loithout request. Keener, 
 pp. 367-373 ; Bright ; Bull ; Jewett. 
 
 1. Recovery (or improvements made 
 while in possession of land under an oral 
 contract which the vendor has refused 
 to perform. Keener, pp. 363-373 ; Les- 
 ter : 341 ; Luton, 127 N. C. 96, 80 Am. 
 St. 783. 
 
 2. Recovery by a vendee for improve- 
 ments made under an oral agreement 
 which he has refused to perform. Keener, 
 pp. 373-377. 
 
 3. Recovery for improvements made un- 
 der mistake as to the ownership of land. 
 Keener, pp. 377-387 ; Jewett ; Bright. 
 
 Recovery of money paid to the use of the 
 defendant. Keener, pp. 388-410. 
 
 Recovery of money paid to prevent a 
 sale of property. Keener, pp. 388-395 ; 
 Astley ; Lamborn. See Voluntary Pay- 
 ment. 
 
 Right of a plaintiff who has paid a 
 claim which, as between the plaintiff and 
 defendant, should have been paid either in 
 whole or in part by the defendant. Keen- 
 er, pp. 395-410 ; Dering ; Merryweather. 
 
 Gift made to one affianced to marry may be 
 recovered. Thornton Gifts : 94. 
 
 Recovery of money paid under compulsion 
 of law. Keener, pp. 421-425. 
 
 1. A recovery of money after action 
 brought. Keener, pp. 411-421 ; Mariott. 
 
 2. Recovery or money paid to prevent 
 a threatened sale of property under legal 
 process. Keener, pp. 421-424 ; Sasportas, 
 Lamborn. See Voluntary Payment. 
 
 Recovery of money paid to the defendant 
 under duress, legal or equitable. 1. Re- 
 covery of money paid to prevent the un- 
 lawful taking or detention of property. 
 Keener, pp. 326-441 ; Sasportas ; Skeate ; 
 Astley. 
 
 2. Recovery of money paid to avoid an 
 injury to business. Keener, pp. 430-436. 
 
 3. Recovery of money paid under a 
 usurious contract. Keener, pp. 436, 437. 
 
 4. Recovery of money paid to induce the 
 performance of a duty. Keener, pp. 437, 
 438 ; Stilk ; Am. Steamship Co. See Ex- 
 tortion. 
 
 5. Recovery of money paid to avoid ar- 
 rest or to be released therefrom. Keener, 
 pp. 438-441 ; Grainger ; Watkins ; Sas- 
 portas. 
 
 Criminal process cannot be used for ulterior 
 purposes. Sub, Salus populi, etc. Ilsley ; 
 Watkins ; Duress. 
 
 Money had and received; action of. See Id. 
 
 321. COOKE v. OSMY (1790), 3 Term 
 Rep. (D. & B.) 653, 1 R. R. 783, 1 Langd. 
 Conts. 2, Finch, Cas. Conts. 85, Keener, 
 Sel. Cas. 201, Ans. 21. 27, 1 Add. 20, 
 Pars., Chit., Bish., 1 Beach, 37, Clark, 
 Story, Smith, 158-164, Whart. 11, 13, 
 494, 787, Ham. 165, 314, Hughes, 1 Benj. 
 Sales, 41-66, 1 Mech. 245, 252, 9 Cyc. 
 328, Wambaugh, Study Cas. 103, Mews' 
 
 Leading Cases. — 321. Cooke. 
 
 E. C. L. ; Cooper, 94 Mich. 272, 34 Am. 
 St. 341, Huff. & W. Conts. 50. 
 
 Cited, § 104, Hughes' Proc. ; §§ 40, 281, 305, 
 313, Gr. & Rud. 
 
 Cooke stated: contracts; offer and accept- 
 ance. O. offered C. 266 hogsheads of to- 
 bacco, who asked until 4 o'clock next day 
 for acceptance, which was agreed to. O. 
 immediately withdrew the offer and noti- 
 fied C, who accepted the offer within the 
 time, and then sued O. for non-delivery, 
 but lost the suit for the reason that no 
 consideration was given for the time offer, 
 and because both sides must be bound, or 
 neither ; that O. could retract the offer 
 at any time before its acceptance. Mutual 
 assent is essential for a contract. 
 
 1 Ben]. Sales, 38, 74 ; White v. Cor- 
 lies ; Tarling v. Baxter ; 9 Cyc. 285. 
 
 The procedure in Cooke. The declaration 
 stated that the defendant had proposed to 
 sell and deliver to the plaintiff goods- 
 upon certain terms, if the plaintiff would 
 agree to purchase them upon those terms, 
 and would give the defendant notice 
 thereof before 4 o'clock on that day. 
 Averment, that plaintiff did agree and 
 gave the required notice, but defendant 
 on request did not deliver. After verdict, 
 the judgment was arrested, and a writ of 
 error having been brought, that decision 
 was affirmed, on the ground that it ap- 
 peared by the record that there was only 
 a proposal of sale by one party, and nd 
 allegation that the other party had ac- 
 ceded to the contract of sale. 1 Chit. 
 Conts. 14 (11th Am. ed.). 
 
 It is instructive to note that a case must 
 be alleged, and that the allegation — the 
 pleading is construed against a pleader. 
 Dovaston : 217. 
 
 Offer under seal irrevocable, for a seal im- 
 ports a consideration. Ans. Conts. 12, 17, 
 20, 25. 1 Mech. Sales, 259 ; Jackson v. 
 Cleveland. 
 
 Both sides must be bound or neither: uni- 
 lateral contracts are not binding. Emer- 
 son, — Minn. — , 1 L. R. A. N. S. 445- 
 451, n. ; Higbee: 211 111. 333, 103 Am. 
 St. 204, 39 L. R. A. 467 ; 9 Cyc. 327 : 
 cases ; 12 How. 126, 136 ; Tyler v. Fom- 
 eroy. 
 
 Bish. Conts. 318, 6 L. R. A. 807 ; Atlee, 
 69 Wis. 43, 5 Am. St. 103 ; Johnston, 7 
 Watts, 48, 32 Am. Dec. 738 ; Hayes, 149 
 111. 403, 23 L. R. A. 555-560, n. (unilat- 
 eral contracts) ; 1 Mech. Sales, 263-265. 
 See Boston R. R., 3 Cush. 228 (Ut res 
 magis valeat), Boston R. R. : 331. An 
 adult contracting with an infant is bound, 
 but the latter is not. See Infants. 
 
 A proposal may be retracted before accept- 
 ance. Bish. Conts. 325 ; Payne : 307 ; 
 Lincoln, 164 Mass. 537, 49 Am. St. 480 
 (trying on a dress made inside out is not 
 acceptance). "Refusal" or "option" con- 
 tracts ; rights conferred by. Litz, 93 Ky. 
 185. 21 L. R. A. 127-133, n. Right to 
 withdraw from until a consideration is 
 paid. Mueller, 116 Wis. 468, 96 Am. St. 
 997 (follows Cooke). 
 
DATUM POSTS. 
 
 175 
 
 Leading Cases. — 321. Cooke. 
 
 Mutuality ; unilaterial contracts ; spe- 
 cific performance of, when decreed. 2 
 Beach, Eq. 586, 587, 637. 
 
 An offer made and accepted is a good con- 
 tract. Ex nudo, etc. 
 
 A former subscriber for a periodical con- 
 tinuing to receive it is liable for it. Fogg, 
 44 N. H. 115, 82 Am. Dec. 191, Huff. & 
 W. Conts. 10; Weatherby, 5 C. & P. 228 
 (24 E. C. L. R. 293). See Continuity. 
 Renewal of leases by holding over is very 
 analogous to the foregoing. Clayton. Ex- 
 pressio eorurrij etc. 
 
 One may repudiate an illegal contract and 
 retire from it at any time. Pactis priva- 
 torum. Bro. Max. 695. In law one is 
 never bound by an illegal contract, and 
 it is his duty to abandon it. Diggle : 371. 
 
 322. WILIUMS V. CARWABDINE 
 (1823), 4 Barn. & Adol. 621 (24 E. C. L. 
 R.), 5 Car. & Payne 566, 1 N. & M. 418, 
 6 Rul. Cas. 133-230, 9 Cyc. 326, Gr. Pub. 
 Pol. 444 : cases, Langd. Conts. 12, Keener, 
 Sel. Cas., 1 Ans. 33, 1 Chit. 12, 2 id. 800, 
 Laws. 12, 36, 1 Add. 32, Whart. 24, 507, 
 Sto. 493, Clark, 58, Ham. 79, Huff. & 
 Wood, Am. Cas. 62, Ewart, Estop. 377, 1 
 Mews' E. C. L. 188, 4 id. 3, 4 ; Fitch, 38 
 N. Y. 248, 97 Am. Dec. 791 ; cited, 1 Dill. 
 Corp. 139 ; 9 Cyc. 326. 
 
 Williams stated: C. published that he would 
 give £20 to any person who would give 
 information leading to the conviction of 
 the murderers of C.'s brother. W., a 
 female, being maltreated by a man she 
 was living with, from motives of revenge 
 gave the information required by C. She 
 sued for the reward, and C. insisted that 
 her motives were not contractual. Held, 
 she could recover ; that her motives were 
 immaterial. Williams ; Mountain, 16 Or. 
 279, 10 Crim. Law Mag. 662-682, ext. n. ; 
 Smith v. Vernon, 188 Mo. 501, 70 L. R. 
 A. N. S. 59 : cases ; 107 Am. St. 324 ; 
 1 Beach, Pub. Corp. 618 ; Mitchell, 86 Me. 
 338, 25 L. R. A. 503 (presumption of re- 
 vocation of offer by lapse of time — forty- 
 four months too late for performance) ; 
 Loring, 7 Met. 409 ; Central R. R., 85 
 Ala. 292, 7 Am. St. 48, n. 
 
 P. offered a reward of $1,000 for the 
 apprehension and conviction of the mur- 
 derers of several persons. F. gave the in- 
 formation leading to this result. Held, 
 that he could recover. Furman v. Parke 
 (1848), 21 N. J. L. 310; Hayden, 56 Ind. 
 42, 26 Am. Rep. 1-10, n. (who entitled 
 to) ; Wilson, 103 Cal. 255, 42 Am. St. 
 Ill, n. 
 
 Towns and counties can only offer rewards 
 when authorized by statute. 1 Dill. Corp. 
 139. Hill v. Boston : cases. Contracts 
 of, are strictly construed. 1 Beach, Corp. 
 618. Quasi-municipal corporations are 
 governed by strict rules. See Ultra Vires. 
 
 Contracts; rewards. Proposals to unascer- 
 tained persons. Cooke, 321 ; Boston Ice 
 Co.: 320. 
 
 Any person may arrest a fugitive for 
 a felony actually committed. Allen .v. 
 Wright ; and this is the duty of every 
 good citizen. Salus populi suprema lex. 
 
 Leading Cases. — 322. Williams. 
 
 Yet, for doing it a reward may be claimed. 
 See Stilk. It is no consideration for a 
 man to do what in law he is already 
 bound to do. Stilk. Public officers can- 
 not claim for arresting. KInn, 118 Wis. 
 537, 99 Am. St. 1012; 1 Page 22-53; 
 Smith v. Vernon County. 
 Contractual intention. Ham. Conts. 78-86. 
 
 One claiming an award must fully com- 
 ply with its terms. If offered for arrest 
 and conviction no claim can be made for 
 the conviction only. Williams, 191 111. 
 610, 85 Am. St. 278 ; Expressio unius, etc. 
 Cutter : 308. 
 323. SHTJEY v. V. S. (1875), 92 V. S. 
 73, 23 L. ed. 697 ; Pollock, Conts. 21, 
 Pars. 490, Bish. 331, 332, Whart. 24, 25, 
 Clark, 57, Laws. 26, Ham. 63, 67, Hughes, 
 1 Dill. Munic. Corp. 139, 1 Wh. Ev. 674 ; 
 1 Page 35. 
 Shuey stated: Abraham Lincoln, President 
 of the United States, was assassinated 
 April 14, 1865, by J. Wilkes Booth and 
 accomplices, among whom was one John 
 H. Surratt. On the 20th of that month 
 the Secretary of War offered $25,000 for 
 the apprehension of Surratt, and also as 
 follows : "Liberal rewards will be paid 
 for any information that shall conduce 
 to the arrest of either of the above- 
 named criminals or their accomplices." 
 There was no limitation as to time. On 
 November 24th of that year the Presi- 
 dent revoked the offer for the arrest of 
 Surratt (13 Stat. 778). 
 
 In April, 1866, Surratt and claimant 
 were zouaves in the military service of 
 the papal government. During the month 
 he communicated with Mr. King, the 
 American miniser at Rome, the fact that 
 he had discovered and identified Surratt, 
 who had confessed to him his complicity 
 in the assassination. Claimant com- 
 municated further information to the 
 same effect and kept watch, at the re- 
 quest of the American minister, over 
 Surratt. This led to his arrest. 
 
 Ten thousand dollars had been paid 
 claimant for the information furnished. 
 Held, claimant could not recover the 
 $25,000 because he did not "apprehend 
 Surratt" ; he only gave information which 
 led to the "apprehension" ; the conse- 
 quences of a man's act are not his acts. 
 There is a clear distinction between "ap- 
 prehending"- and giving information lead- 
 ing to an "apprehension." 
 
 That power to make an offer involves 
 the power to withdraw it. Nihil tarn 
 conveniens, etc. 
 
 That the claimant did not perform the 
 thing required, nor was the arrest made 
 while the offer was extended. Adams : 326. 
 
 That the offer could be revoked at any 
 time before performance. Payne : 307 ; 
 Cooke : 321. 
 
 That it was sufficient to revoke the offer 
 by the same means that it was made, 
 that is, through the public press. Nihil 
 tarn conveniens, etc. Things equal to 
 the same thing are equal to each other. 
 
176 
 
 DATUM POSTS. 
 
 Leading Cases. — 323. Shuey. 
 
 That a proposer can prescribe time, place 
 and manner of acceptance. Adams : 326 ; 
 Eliason ; Felthouse ; Maclay : 327. 
 
 That it takes two to make a contract, and 
 both sides must be bound or neither. 
 Cooke ; Jordon ; Kyle : 348. 
 
 And until both are bound either can retract. 
 Cooke; Adams: 326. 
 
 Rewards ; proposals to unascertained 
 persons. Williams. 
 
 324. JORDAN v. NORTON (1838), 4 
 Mees. & Wels. 155, 1 H. & H. 234, 6 Rul. 
 Cas. 142-230, n., 1 Mech. Sales, 227-238, 
 Pars., Chit., Smith, 158, Whart. 4, Clark, 
 36, Laws. 16, Add., Hughes' Conts., Mews' 
 E. C. L. 420, 1 Benj. Sales, 29. 
 
 Jordan stated: Contracts; sales; offer and 
 acceptance. Norton offered, by letter, to 
 buy a mare of Jordon if he would war- 
 rant her "sound and quiet in harness." 
 J. replied, warranting her "sound and 
 quiet in double harness," but saying he 
 had never put her in single harness. J.'s 
 agent delivered the mare and exceeded his 
 authority by failing to first get the price. 
 N.'s son got the mare as if on trial, rode 
 her 18 miles, tried her and returned her 
 after two days as unsound under the 
 warranty demanded whose act was im- 
 mediately repudiated. The mare would 
 not work in single harness. J. refused 
 the return of the mare and sued for 
 the price, and the question was whether 
 or not there was a complete contract. 
 Held, there was not. See Tarling : 404 ; 
 Page Conts. 46. 
 
 Both parties must understand the same thing 
 in the same sense; and both sides must 
 be bound, or neither. Cooke ; Kyle ; 
 Welborn. 
 
 It takes two to mahe a contract. Cooke. 
 And these two must have agreeing minds 
 as to the essentials. Boston Ice Co. An 
 offer must be assented to in the precise 
 terms in which it is made. First Nat. 
 Bank, 101 U. S. 43 (acceptance must be 
 identical with offer). The principle in 
 Non hmc in fwdera veni applies. 
 
 An offer that has been rejected cannot 
 be revived by a tender of a full ac- 
 ceptance. Minneapolis, etc. R. R., 119 
 U. S. 149. Acceptance in the law of sales. 
 See Tarling : 404 : cases. Of deeds. Wel- 
 born : 388. 
 
 Acceptance of less than the offer con- 
 cludes the contract for the less amount. 
 Omne majus, etc. ; Quod minus, etc. 
 
 324a. VOQT V. SCHIENEBECK (1904), 
 122 Wis. 491, 100 N. W. 820, 106 Am. St. 
 989. 
 
 Sale, wherein the seller agrees to load the 
 thing sold "f. o. b." means that he will 
 secure or furnish the car. Expressio 
 unius, etc. Parties must make contracts 
 for themselves ; the contract made is all 
 that can be enforced. 
 
 Oral evidence is inadmissible to alter or 
 vary the contract. Pym : 52 : cases ; 
 Hogins : 379. See Obal Evidence. 
 
 Custom cannot be shown to affect plain and 
 unambiguous language. Blackett : 400 ; 
 Noble: 251. 
 
 Leading Cases. — 
 
 325. rEITHOUSE V. BINDLEY (1861), 
 11 C. B. (N. S.) 869 (103 E. C. L. R.)„ 
 Ans. 15, Keener, Sel. 148, Finch, Cas. 51, 
 Ham. 42, 43, 77, 1 Pars. 503, 1 Add. 20, 
 Whart. 21, 22, Clark, 31, Laws. 19, 31, 
 Hughes' Conts., 2 Whart. Ev. 1138, 1 
 Mech. Sales, 234, 238, 1 Benj. 39, 12 
 Mews' E. C. L. 419, 444. 
 
 Felthouse stated: F. had offered B. £30 for 
 a horse, while 30 guineas was asked. B. 
 afterward, on Jan. 2d, offered to split the 
 difference, the horse to be delivered on 
 March 25th, and also : "If I hear no more 
 about him I consider the horse is mine 
 at £30, 15s." No reply, however, was 
 sent. B. on Feb. 21st had an auction 
 sale and ordered everything sold except 
 the horse, which he said was F.'s. But 
 by mistake the horse was sold, and F. 
 sued in trover for him. Held, F. could 
 not recover. Proposer may prescribe 
 time, place and manner of acceptance. 
 Adams ; Eliason, sub, Cooke : 321. 
 
 An offer made and accepted is u, contract; 
 Cooke : 321 ; Ex nudo. 
 
 326. ADAMS V. LINDSELX. (1818), 1 
 Barn. & Aid. 681, 1 Lang. Conts. 4, 6 Rul. 
 Cas. 80-220, n., 17 R. R. 415, Finch, Cas. 
 102, Mech. Sales; stated, Benj. Sales, 
 Wambaugh, Study Cas. 106, Keener, Sel. 
 Conts. 225, Ans. Laws. 1 Chit. 1 Add., 
 Smith, Whart., Clark, Sto., 1 Pars. 500- 
 503 (instructive), Hughes' Conts., page 
 52, Dunlop v. Higgins (1848), 1 H. L. 
 Cas. 381, 9 Eng. Rep. 805, Langd. Conts. 
 24-352 ; cited, 4 Mews' E. C. L. (Contract 
 — Formation of), Sto. Ag. 493, 69 Wis. 
 48, 5 Am. St. 108, 2 Kent, 477. 
 
 Cited, p. 39 ; §§ 1, 3, 4, 5, 23, 39, 41, 95, 
 207, Hughes' Proc. 
 
 Adams stated: Lindsell offered to sell a, 
 quantity of wool at a stated price to* 
 Adams & Co. ; acceptance was requested 
 "in course of post." L. sent the letter to 
 Bromsgrove in Worcestershire, instead of 
 in Leicestershire. This delayed the letter 
 several days. However, upon its receipt, 
 A. immediately accepted. Because of this 
 delay L. refused to perform, insisting that 
 he had a right to retract at any time 
 until notified of an acceptance. Held, L. 
 was bound ; that the delay was caused by 
 his own mistake, and of this he should 
 not complain. Patrick v. Bowman ; Nullus- 
 commodum capere. etc. ; "Squib case." The 
 doctrine of continuity is applied in the 
 law of contracts. See Continuity. 
 
 Byrne v. Tan Tienhoven (1880), 5 C P. 
 D. 348 (a widely cited case) ; Finch, 
 Cases, 104 ; Ans. Conts. 27 : Whart. Conts. 
 18 ; 4 Mews' E. C. L., 9 (Contract — - 
 Formation of), 6 id. 679; 1 Benj. Sales 
 46 ; Ham. Conts. 66. 
 
 Byrne stated: V. at Cardiff, on Oct. 1st 
 wrote a letter offering to sell a cargo 
 of tin to plaintiff, at New York, asking 
 for acceptance by letter. Ten days later 
 the letter was received and was duly ac- . 
 cepted, as requested, by letter. On the 
 8th V. had posted a letter revoking the 
 offer. Two questions arose : 
 
 1. Whether the withdrawal of an offer 
 has any effect until it is communicated to 
 
DATUM POSTS. 
 
 177 
 
 Leading Cases. — 326. Adams. 
 
 the party to whom the offer has been 
 made. 
 
 2. Whether posting a letter of with- 
 drawal is a communication to the person 
 to whom the letter is sent. Held: 
 
 "that both legal principle and practical 
 convenience require that a person who 
 has accepted an offer not known to him to 
 have been revolted shall be in a position 
 safely to act upon the footing that the 
 offer and acceptance constitute a con- 
 tract binding upon both parties." Tayloe ; 
 Patrick v. Bowman ; Allegans, etc., 9 Cyc. 
 295. 
 
 Contracts by post. Acceptance of offer must 
 be unqualified. Maclay ; Household Ins. 
 Co. ; Borland ; Boston R. ; Eliason ; Felt- 
 house ; Tayloe ; Shuey ; Williams v. Car- 
 wardine (consent) ; Patrick. 
 
 Death of offerer revokes the offer. Dicken- 
 son v. Dodd, 2 Chan. Div. 463, 475, 1 
 Pars. C. 499, 1 Chit. 18, 4 Mews' E. C. L. 
 10, 6 id. 679, 14 id. 1113. 1 Page, 34, 36. 
 Death causing lapse of offer. 1 Page, 40. 
 
 Or insanity. Beach, 96 III. 177, 1 Pars. 
 Conts. 499. 
 
 Bight to withdraw acceptance. No contract 
 until letter is delivered ; if intercepted 
 there is no contract. Scottish Co., 96 
 Tex. 504, 97 Am. St. 932 n. 
 
 327. MACLAY v. HARVEY (1878), 90 
 111. 525, 32 Am. Rep. 35-53, ext. n., Huff. 
 & W. Conts. 41 ; Mech. Sales, Laws., 
 Ham. Ans., Pars., Bish. 327, 1 Beach, 
 64, Hughes. 
 
 Maclay stated: H., a merchant, wanted a 
 milliner and sought the services of Miss 
 M. in a neighboring town. He wrote by 
 post, offering her a position and requesting 
 her acceptance by return mail. She wrote 
 her acceptance on a postal card and in- 
 trusted the posting of it to a boy, who 
 failed to promptly do so. From this 
 cause the letter was delayed, and she lost 
 the situation. Held, there was no con- 
 tract ; that the contract failed from her 
 own fault, and that she could not take 
 advantage of this. Nullus commodum ca- 
 pere, etc. M. trusted the boy, and there- 
 fore must first suffer. Lickbarrow : 294. 
 
 Proposer may prescribe time, place and form 
 of acceptance. Felthouse : 325. The last 
 proposition involves the fundamental right 
 to contract ; it is a part of Non hwc in 
 fcedera veni. This is a part of the pre- 
 scriptive Constitution. Where this is 
 denied tyranny begins. Cutter : 308. 
 
 Letters. Acceptance of proposal by letter. 
 Adams ; Household Ins. Co. ; Tayloe ; Wel- 
 born: 388. 
 
 Contracts by telegram; letter. 1 Beach, 
 Conts., 62-64 ; Byrne : 326 ; Adams ; Lar- 
 mon; 50 111. 204. 
 
 328. HOUSEHOLD FIRE INSURANCE 
 CO. v. GRANT (1879), 4 Exch. Div. 216, 
 6 Eng. Rul. Cas. 93-230 ; Williston Cas. 
 481, Finch, 133, Ans., Pars., Whart., 
 Laws. 21, Clark, 44, 45, Keener, Sel. 259, 
 Ham. 46, 47, Hughes, Mech. Sales, Benj. 
 Sales, 2 Wh. Ev. 1323, Mews' E. C. L. 
 
 Contracts; acceptance of proposals by post. 
 Acceptance is complete when letter is 
 posted, if that way of acceptance is the 
 one contemplated by the proposer. 
 
 12 
 
 Leading Cases. — 328. House Ins. 
 
 Household ; Adams ; Maclay ; Tayloe. 
 See Vassar, 11 N. Y. 441 ; M'Cullough, 
 1 Pick. 278. 
 Consent to contracts. 6 Rul. Cas. 80-230 ; 
 Jordan ; Williams ; Boston : 320-322. 
 
 329. TAYLOE v. MERCHANTS' FIRE: 
 INS. CO. (1850), 9 How. 390, 13 L. ed. 
 187, Langd. Cas. 106, Huff. & W. Conts., 
 Pars., Chit. 18, Ans. 24, Bish. 326, 328, 
 1 Beach, 39, 586, Ham., Hughes' Conts., 
 Mech. Sales, Rorer Interstate Law 67, 
 
 3 Suth. Dam. 810, 820, 2 Sto. Eq. 722, 2 
 Kent, 477. § 152 Gr. & Rud. 
 
 Acceptance of an offer must be upon precise 
 terms offered. Expressio unms, etc. Jor- 
 dan ; Eliason ; Cooke. 
 
 Contracts; letters; contracts by post. 
 Adams ; . Maclay ; Household ; 1 Bish. 
 Conts. 62-64. 
 
 330. ELIASON V. HENSHAW (18191, 
 
 4 Wheat. (U. S.) 225, 4 L. ed. 556, n.,. 
 1 Langd. Cas. 70, Huff. & W. Conts., Fish, 
 56, 38 Bish. 323, 1 Pars. 19, 20, n., 
 Whart. 4, 9, 15, Sto. 502, Clark, 36, 39, 
 Laws., Ham., Hughes, Keener, Sel. Cas.. 
 Conts. 153, Mech. Sales, q. v., 31 W. Va. 
 738, 3 L. R. A. 100. 
 
 Contracts. Proposer may prescribe time^ 
 place and form of acceptance. Adams ; 
 Cooke. 
 
 Offer and acceptance. 4 L. ed. (U. S.) 
 556, n. 
 
 Acceptance must be perfect. Bish. Conts. 
 323, 3 L. R. A. 100 ; White : 303 ; Bos- 
 ton Co. : 320. 
 
 331. BOSTON & MAINE R. R. v. BART- 
 LETT (1847), 3 Cush. 224 Langd. Conts. 
 103, Pars., Whart., Laws., Sto. 495, Clark, 
 Ham. Conts., Hughes' Conts., Mech. Sales. 
 
 Boston stated: B., in the above case, offered 
 his land to the R. R. for $20,000, if ac- 
 ceptance was signified in thirty days,, 
 which was done. Then B. undertook to re- 
 voke and withdrew, but it was held too late. 
 Contracts ; acceptance ; proposal can- 
 not be retracted after acceptance. Adams ; 
 1 Chit. Conts. 11, 13, 16 ; Cooke : 320. 
 
 Acceptance of proposal must be unequivocal. 
 Weaver, 31 W. Va. 736, 3 L. R. A. 94 1 
 stating, Boston ; Eliason. 
 
 A seal imports a consideration. Boston, sub^ 
 Cumber, sub, Cooke ; Rann : cases. 
 
 332. BAINBREDGE V. FIRMSTONE 
 (1838), 8 Adol. & El. 743 (35 E. C. L. 
 R), 1 P. & D., 2 W. & H. 600, Langd. 
 Conts. 209, Finch, 363, Laws. 93, Smith, 
 178, 189, Whart. 517, Sto. 448, Clark, 
 148, 150, Ham., Hughes, Keener, Sel. Cas. 
 Conts. 383, 1 Pars. 463, 1 Chit. 31, Ans. 
 Conts. 71, Wambaugh, Study Cas. 60, 9 
 Cyc. 366, 4 Mews' E. C. L. 90 (Contracts 
 
 Cited, §§ 283, 284, Gr. & Rud. 
 
 Bainbridge stated : F. desired to weigh two 
 boilers belonging to B., who consented 
 that F. take, weigh and return them in 
 good condition. F. took them to pieces- 
 to weigh them and returned them so taken 
 apart. For this B. .sued F. F. denied 
 the sufficiency of the consideration. Held, 
 B. could recover. Mere trust and confi- 
 dence is a sufficient consideration. Coggs : 
 350. 
 
 If one gets all he bargained for this satisfies 
 
178 
 
 DATUM POSTS. 
 
 Leading Cases.— 332. Bainbridge. 
 
 the law, 39 Am. St. 744. The immunity 
 of one's right to make any contract he 
 pleases, even to contract against accident 
 (Actus Dei, etc.) and impossibility (Lex 
 non cogit, etc.) depends upon the rule in 
 Bainbridge. See Thornborow : 333 ; Cut- 
 ter ; sub, Cas. ; also Modus et conventio, 
 etc. Hughes' Conts. 
 
 Consideration. Adequacy of, immaterial. It 
 is sufficient if of the slightest benefit to 
 the promisor or detriment to the promisee. 
 Add. Conts. 16; Cumber: 311; Thorn- 
 borow; Bartholomew; 39 Am. St. 735- 
 745 ; Train v. Gold, 5 Pick. 384 ; Cabot, 
 3 Pick. 83 ; cited, 1 Chit. Conts. 31. 
 
 In the absence of fraud, abstinence from 
 drink or tobacco, the naming. of a child, 
 or the performance of any act that will 
 afford a gratflcation of mere caprice, 
 whim, pleasure or fancy, or express an 
 appreciation of a service another has done 
 him, such estimate of the value should, 
 in the absence of fraud, be left undis- 
 turbed. Wolford, 85 Ind. 294, 44 Am. 
 Rep. 16 ; 39 Am. St. 744 : cases. Ex nudo 
 pacto, etc. ; 102 Am. St. 303-315. 
 
 . The law of consideration should be 
 gathered from a connected consideration 
 of the maxim, Ex nudo pacto, etc., Lamp- 
 leigh, Bartholomew, Cumber, Rann, Stilk, 
 Cook, Mills, White, Beaumont, Hendrick, 
 Bainbridge and Thornborow. When the 
 law will presume the request and the 
 promise are questions of contract and of 
 procedure. See Lampleigh: 301. A 
 study of these elements although tech- 
 nical is of leading consequence to him 
 who would learn contract, and perceive 
 its interactions upon procedure. 
 
 333. TEOBNBOBOW V. WHITACEE 
 (1706), 3 Ld. Raym. (Eng.) 1164; Pars. 
 Conts., Chit., 1 Add. 327, 491, Smith, 
 178, Whart. 301, Leake, 688, Sto., Clark, 
 182, Hughes' Conts., 2 Sto. Eq. 1303, 
 Ben:'. Sales, Sedgk. Dam., 1 Suth. Dam. 
 285, 33 Am. Rep. 182. 
 
 Thornborow stated: Agreement to pay one 
 barley-corn for first nail in horse's shoe, 
 increasing it in a geometrical progression, 
 held valid. Mere folly or weakness in 
 judgment will not defeat the contract. 
 Thornborow; 2 Chit. Conts. 30, 1332. 
 Smith, Conts. 
 
 If an agreement be unconscionable, the 
 court will render judgment for such dam- 
 ages as may appear reasonable without 
 being bound by the terms of the contract. 
 1 Chit. Conts. 30 n. 
 
 W., for £25, agreed to give T. one rye 
 corn on Monday, two on the second Mon- 
 day, four on the third, and so on, doubling 
 for each Monday in next ensuing year. 
 Although this called for more rye than 
 was grown in all England for that year, 
 it seems that such a contract is valid. 
 Thornborow. 1 Chit. Conts. 30, Smith, 178, 
 Whart. Conts. 301. Disparity of intel- 
 lects of contracting parties will not be 
 inquired into. Chesterfield. 
 
 Consideration, adequacy of. A slight con- 
 sideration will support a heavy obligation. 
 
 Leading Cases. — 333. Thornborow. 
 
 Thornborow ; 2 Pom. Eg.. 925-928 ; Kerr, 
 Fraud, 186-194, 2 Sedgk. Dam. 611 
 Adams, Eq. 245 ; Cumber ; Bainbridge ; 
 Ex nudo pacto, etc. 
 Of inadequacy of consideration. . Bigl. 
 Fraud, 136-140: cases (illustrations). 1 
 Page, 224-235. Two dollars no considera- 
 tion for $2,000. Macoupin, 58 111. 191, 
 Madison Co., 58 111. 456, 2 Pom. Eq. 925- 
 958, Kerr, Fr. 186-194 ; Skeate ; Home ; 
 Sub, Chesterfield. 
 
 Execution sale of property en masse; $2,000 
 worth for $60 is ground for relief. Lur- 
 ton, 139 111. 554, 32 Am. St. 214, n. ; 
 Schroeder, 161 U. S. 334 (grounds for 
 setting aside). Smith, Conts. 180, Whart. 
 301. 
 
 James v. Morgan (1657), 1 Levinz (Eng.), 
 Ill, 1 Keb. 569, 1 Pars. Conts. 453, 2 
 Pom. Eq. 927, 2 Benj. Sales, 867, 2 
 Sedgk. Dam. 612, 1 Chit. Conts. 30, 1323 ; 
 Haigh, sub, Cumber : 311 ; Schnell v. Nell 
 (1861), 17 Ind. 644, Ham. Conts. 323, 
 324, 338, 343; South, 98 Ala. 40, 39 Am. 
 St. 72-82, n. : cases (specific performance 
 case ; Huguenin ) . Catching bargains. 
 Chesterfield. 
 
 334. ABEL V. ALEXANDER (1874), 
 45 Ind. 523, 15 Am. Rep. 270-277, 2 
 Brandt, Sur. 344, 2 Rand. Com. Paper, 
 958, 966, 2 Danl. Nego. Insts. 1317, 
 1317a, 1319. §§ 186, 305, 334, 342, 
 Hughes' Proc. 
 
 Abel stated: Alexander was payee and holder 
 of Abel's overdue note, bearing usurious 
 interest and secured by sureties. Without 
 the knowledge of these, the holder agreed 
 with the maker for two extensions of time, 
 one "until summer" and the other "until 
 fall" (June 1st and September 1st), 
 maker to pay same rate of interest. Later, 
 the holder sued, and the sureties pleaded 
 their discharge upon the ground that the 
 contract had been changed as above stated. 
 Held, that the contract was certain as to 
 time ; that "until summer" meant -June 
 1st, etc. ; that it was no consideration 
 to agree to do what the maker was al- 
 ready bound to do (Cumber; Stilk). 
 Therefore, the sureties were not dis- 
 charged. Cf. Benson, 87 Tex. 578, 47 
 Am. St. 128 (an agreement to keep the 
 money and pay interest for a time cer- 
 tain is sufficient). A subsequent agree- 
 ment must be upon a new consideration. 
 McFarland, 127 Mo. 327, 43 Am. St. 
 629. Cumber ; Ex nudo pacto, etc. 
 
 Sureties. Discharge of, by change of con- 
 tract between principal debtor and credi- 
 tor. Rees ; King; Okie v. Spencer (ac- 
 cepting from principal a check post-dated 
 six days releases surety) . 
 
 Discharge of the surety or guarantor by 
 alteration of the contract. 2 Brandt, Sur. 
 378-400, King ; Rees. A perfect and 
 valid enforceable contract essential. Abel : 
 2 Rand. Com. Paper, 959 ; Sanders, 32 
 S. C. 2, 3, 7 L. R. A. 423, n. (that the 
 contract was beneficial is immaterial) ; 
 Bartholomew. 
 
 Integrity of contract favored. Certum est 
 quod certum reddi potest (that is suffi- 
 ciently certain which can be made cer- 
 
DATUM POSTS. 
 
 179 
 
 Leading Cases. — 334. Abel. 
 
 tain), applies with great force in com- 
 mercial paper. 2 Rand. Com. Paper, 958 ; 
 Crooker: 410; Kelley : 304. 
 Ut res magis valeat quam pereat applies 
 with strictness to commercial paper. 
 Abel ; Crooker ; Verba fortius, etc. 
 Res inter alios acta; Bro. Max. 697, 954 ; 
 
 King; Bees. 
 Assent essential for a contract. Boston : 320. 
 And it matters not that benefits were re- 
 ceived. Bartholomew : 302 ; Bull. See 
 Hitchcock v. Galveston. Non hmc in 
 foedera veni. 
 
 Discbarge of the surety or guarantor by 
 giving of time. 2 Brandt, Sur. 342-377. 
 Neglect of principal to promptly and 
 prudently proceed will not release surety. 
 Montgomery, 100 Cal. 132, 38 Am. St. 271, 
 n. ; King ; 3 Suth. Dam. 722-767. 
 334a. BEES v. BEBKINGTON (1795), 
 2 Ves. Jr. 540, 2 Lead. Eq. Cas. 1867-1921 
 ext. n., 30 Eng. Rep. 765 ; Chit. Conts., 
 Add., Jones, Construe. 552 (sureties are 
 favorites in law), Dev. Deeds, 1057, 87 
 Tex. 581, 4 Am. St. 130, 2 Rand. Com. 
 Pap. 960, 2 Danl. Nego. Insts. 1336, Pars. 
 N. & B., Brandt, Suretyship, Pom. 
 Eq., Bisph. Eq., Sto. Eq., 3 Suth. Dam. 
 739, 11 Mews' E. C. L. (Expressio unius). 
 Cited, §§ 186, 227, 305, 334, 342, Hughes' 
 
 Proc. ; § 281 Gr. & Rud. 
 Sureties; release of sureties by the creditor. 
 Giving time to the debtor without the 
 sureties' consent releases them. Bees; 
 Okie ■». Spencer (1836), 2 Wharf. (Pa.) 
 253, 1 Miles (Pa.), 299, 2 Am. Lead. Cas. 
 253, 30 Am. Dec. 251, Redf. & Bigl. L. C. 
 N. & B. 547. Rand. Com. Paper, Pars. N. 
 & B., Brandt, Sureties ; Bugh, 26 Ind. 
 App. 465, 84 Am. St. 307, n. 
 Accepting from principal a Chech post-dated 
 six days, suspends right to sue and re- 
 leases surety. Brandt, Sureties, 364 ; note, 
 55 Am. St. 874 : cases ; Abel : 334. 
 
 Creditor may reserve his right against 
 the surety. Rockville : 58 Conn. 526, 18 
 Am. St. 293, n. Saint v. Wheeler, 95 
 Ala; 362, 36 Am. St. 210, n. (guaranty 
 and suretyship, distinctions). 
 Non hose in fosdera veni (I have not come 
 into this compact) is the motto of sure- 
 ties. Bro. Max. 654 ; Expressio unius, 
 etc. Miller v. Stewart (1824), 9 Wheat. 
 680 (sureties are favorites in law) ; TJ. S. 
 v. Freel (1902), 186 U. S. 309, 3 Suth. 
 Dam. 725 ; Abel : 334. 
 334b. KING v. BALDWIN (1817), 2 
 Johns Ch. 534, 17 Johns. 384, 2 Am. 
 Lead. Cas. 364-425, ext. n., 8 Am. Dec. 
 415-428, n. ; Rand. Com. Paper, Danl. 
 Nego. Insts., Pars. N. & B., 2 Pars. Chit. 
 Conts., Pom. Eq., Sto. Eq., Bisph. Eq., 
 Suth. Dam. (sureties). 
 ■Cited, §§ 184, 186, 227, 305, 334, Hughes' 
 
 Proc. 
 King stated: Fowler gave his note, with 
 Baldwin as surety, to King, who was a 
 lenient creditor and who refused to sue 
 F. at the repeated requests of B. Long 
 afterward, F. became insolvent, and then 
 K. sued B., who made defense that K. 
 had neglected too long to sue, and that 
 by this B. was released. Held, mere de- 
 lay or indulgence to the principal will not 
 release a surety. Mere forbearance to 
 
 Leading Cases.— 334b. King. 
 
 sue, however prejudical to the surety, will 
 not release him. Bees; Alley, 98 Ky. 668, 
 56 Am. St. 382, n. 
 
 Nor to enforce a mortgage given by surety 
 to creditor. Carver, 116 Cal. 116, 58 Am. 
 St. 156, n. 
 
 Bui if creditor binds himself to delay, this 
 will discharge a surety. M'Dougall, 15 
 Wash. 76, 58 Am. St. 870, n. ; cases : 
 Abel: 334. 
 
 Accepting interest in advance will release. 
 Lime Rock, 34 Me. 547, 56 Am. Dec. 
 673, n. 
 
 Obligations of sureties are strictly construed. 
 They are favorites in law. Miller v. 
 Stewart, 2 Suth. Dam. 480, 3 id. 725, 1 
 Brandt, Surety, 93, 393, Jones, Construe. 
 246-256, 2 High. Injunc. 1638-1640, 1 
 Beach, Injunc. 227-245 : Independent 
 School District, 110 Iowa, 58, 80 Am. St. 
 271, n. 
 
 Are not liable for void acts of officers. 
 M'Lendon v. S. (1893), 92 Tenn. 520, 
 201, 21 L. R. A. 738, ext. n. ; Marquis, 
 12 Wash. 528, 50 Am. St. 906 ; Allison v. 
 P. (1895), 6 Colo. Ap. 80 (describing one 
 in a warrant as an "unknown person" 
 avoids the warrant, and sureties not 
 liable to those arrested under it). See 
 S. v. McDaniel (1900), 78 Miss. 1, 84 
 Am. St. 618 : cases. 
 
 Guaranty of interest on unmatured note 
 ends with its maturity. Rector, 61 Ark. 
 420, 54 Am. St. 271, n. See Guaranty. 
 
 335. WAIN v. WABLTEBS (1804), 5 
 East, 10, 2 Smith, Lead. Cas. 271-292, 
 8th ed., 11th ed. (reviews English cases), 
 6 Rul. Cas. 280-325, n., Benj. Sales, 3 
 Kent, 122, 123, 12 Rul. Cas. 464, 469, 60 
 Am. St. 433, Ans. Conts., Laws., Clark, 
 Sto., Smith, 77-80, Ham. 304, Hughes, 
 Bish., Pars., Beach, 2 Page, 701-702, 
 Brandt, Suretyship, Baker's Sales, Browne, 
 Stat. Frauds, Fell, Guaranty, Rand. Com. 
 Paper, 2 Danl., 2 Par's. N. & B., Bro. 
 Max. 888. 
 
 Cited, §§ 24, 112, 176, 186, 227, Hughes' 
 Proc; §§ 164, 280, 286, 288, Gr. & Rud. 
 
 Wain stated: Statute of frauds. Warlters, 
 to . give Hall credit, wrote Wain & Co. : 
 "Messrs. Wain & Co., I will engage to 
 pay you by half past four this day £56 
 and expenses on bill, that amount on 
 Hall. (Sig.) Jonathan Warlters, No. 2 
 Cornhill, April 30th, 1803." Afterward 
 Warlters was sued on this, and he de- 
 fended that, no consideration being ex- 
 pressed, the contract (instrument) was 
 insufficient. Held, that this was a good 
 defense. That Hall, being already in- 
 debted to W. & Co., the collateral under- 
 taking of Warlters was not valid, unless 
 the consideration was expressed. Louis- 
 ville Asphalt, 29 S. C. 533, 2 L. R. A. 
 212, n. ; Siemers, 65 Minn. 104, 60 Am. 
 St. 330, 421, ext. n. 
 
 D'Wolf v. Rabaud (1828), 1 Pet. 476 
 (a widely cited case) ; Barry v. Coombe 
 (1828), 1 Pet. 640, 7 L. ed. 295, n., 3 
 Pars. Conts. 15-17 ; Mentz, 122 N. Y. 
 491, 19 Am. St. 514, n., 11 L. R. A. 
 97-101, n. (essentials of memorandum). 
 
180 
 
 DATUM POSTS. 
 
 Leading Cases.— 335. Wain. 
 
 Sufficiency of the memorandum. Nelson, 
 96 Ala. 515, 38 Am. St. 116, n. ; Lee, 85 
 Tenn. 707, 4 Am. St. 800, n. ; Warden, 
 62 Mich. 50, 4 Am. St. 814. 
 Memorandum; its essentials: 1. A contract 
 concluded by the signer ; 2. Names of 
 both contracting parties ; 3. Subject- 
 matter with certainty. 4. If a sale, its 
 terms of credit and the price, if such were 
 agreed upon; 5. The consideration (in 
 many states). Ans. Conts. 58, n. ; cases: 
 1 Benj. Sales, 201-254; Mentz, supra; 
 New Eng. Dressed Meat Co. 
 Statute of frauds; memorandum. Memoran- 
 dum required under the Statute of Frauds, 
 its form and contents. Baker, Sales, §§ 
 366-396 (excellent resume) ; Chit. Conts. 
 1 Add. Conts. 213, Benj. Sales. It must 
 show necessary elements. Ellis, 7 Colo. 
 App. 350, 1 Beach, Conts. 502-583, 2 
 Page 685-705, 1 Mech. Sales, 422-474. 
 Hall: 1904, 137 N. C. 183, 107 Am. St. 
 477-479. How agent may sign, Worrall : 
 390. 
 Guaranty; signature. A consideration must 
 be expressed. Wain does not extend to 
 the 17th section of the Statute of Frauds, 
 but only to the 4th. Ans. Conts. 57. See 
 Fbauds and Perjuries ; § 4, Statute of 
 Frauds ; Wain ; Lakeman, sub, Clark v. 
 Des Moines ; Peter : 440. 
 
 In 1856, by 19, 20 Vict., ch. 3, it was 
 provided a consideration need not be ex- 
 pressed, and this has been enacted in 
 many states. 2 Rand. Com. Paper, 870 ; 
 Holmes, 7 C. B. (N. S.) 361 (97 E. C. 
 L. R.), 12 Rul. Cas. 464, n. 
 
 Subsequent guaranty depends upon a 
 new consideration. Jain, 3 Colo. Ap. 90. 
 Acceptance as an element. Tarling : 
 404. Sale of land ; memorandum re- 
 quired. 1 Warv. Vend. 94-115. 
 Description of land may be aided orally. 
 Kennedy, 33 S. C. 367, 26 Am. St. 676. 
 See Goss : 55. 
 Lands must oe described. Alabama, 121 
 Ala. 172, 77 Am. St. 46, n.. Barker, 125 
 N. C. 596, 74 Am. St. 658, n. ; Sherman : 
 405. 
 Vendor must be described. Ide, 10 Mont. 
 
 5, 24 Am. St. 17, n. 
 Contracts by telegram. Baker, Sales, 452- 
 463, 1 Warv. Vend. 16; Adams: 326- 
 330. 
 Change of party guaranteed; change of part- 
 ner. Expressio unius, etc. ; Boston : 320. 
 This releases guarantor as to future lia- 
 bility. Barclay v. Lucas (1784), 1 Term. 
 Rep. 291-294, n., 3 Douglas, 321 ; Back- 
 house, 6 B. & S. 507 (118 E. C. L. R.), 
 12 Rul. Cas. 475, ext. n., 1 R. R. 202, 
 n., 12 Rul. Cas. 470, n. ; Non hwc in 
 fcedera veni; Rees : 334. 
 It must be perfect and omit no essential 
 link. Mentz, supra. Such link cannot 
 be proved orally. Goss ; Browne, Statute 
 of Frauds, 371-436, 415. 
 Objects and purposes of the statute. Bird, 
 66 Me. 337, 22 Am. Rep. 571, Huff. & 
 W. Conts. 92. Guarantee. 12 Rul. Cas. 
 
 Leading Cases. — 335. Wain. 
 
 464-482, n. Contracts not to be performed' 
 in a year. Peter : 440. 
 
 Promise to answer for the debt, default 
 or miscarriage of another. Birkmyr. 
 See Fbauds and Pekjubibs. 
 
 336. EASTWOOD V. KENTYOIT (1840), 
 11 Adol. & El. 438 (11 E. C. L. R.), 3 
 P. & D. 276, Birkmyr, 1 Smith, L. C, 
 11th ed., 6 Rul. Cas. 1-43, n. ; 1 Langd. 
 Conts. 343, Finch, Cas. 303, 1 Beach, 507, 
 Keener, Sel. Cas. Conts. 427, Ans., Pars., 
 Chit., Bish. 64, 89, 1264, Beach, Laws. 
 101, Smith, Whart., Ham. page 320, 
 Hughes, Clark, Sto., 1 Add. Conts. 210, 
 Mews' E. C. L., 2 Kent, 466, Mech. Ag. 
 600, Danl. Nego. Insts., Pars. N. & B. 79. 
 
 1 Brandt, Sur. 91, 39 Am. St. 735, 9 Cyc. 
 359. 
 
 Eastwood stated : Statute of Frauds. Prom- 
 ise to answer for the debt, default or mis- 
 carriage of another. A consideration is 
 necessary to sustain a promise. Not only 
 must the promise be in writing, but there 
 must be a consideration also. Rann; 
 Cumber: 311, 312. And it must be ex- 
 pressed. Wain; Birkmyr; Shadwell v. 
 Id. (1868), 9 C. B. (N. S.) 159, 6 Rul. 
 Cas. 1-43, n.. Mews' E. C. L. 
 
 Moral obligation is no consideration. Sub,. 
 Lee; 2 Kent, 466, 2 Beach, Conts. 153; 
 Beaumont: 367. 
 
 Contract with a third person is valid- 
 Wood, 15 R. I. 518, Huff. & W., Conts. 
 430; Hendrick: 319. 
 
 337. BALDEY V. PARKER (1824), Z 
 Barn. & Cress. 37 (9 E. C. L. R.) 3 D. & 
 R. 520, Adams, Cas. Sales, 19, Williston, 
 Sales, 759, Mech. Sales, 37 Am. Rep. 18, 
 Benj. Sales, Baker, Sales, 1 Chit., Conts., 
 Pars., Bish., Beach, Laws, 87, Sto., Add., 
 Ham. 299, Hughes' Conts., Page, Browne, 
 Stat. Fraud, 2 Kent, 502, Mews' E. C. L. 
 
 Baldey stated: A purchaser selected the ar- 
 ticles he sought to purchase of the vendee. 
 The pieces were agreed upon ; the pur- 
 chaser marked some of them with a pen- 
 cil, saw others marked and helped tp cut 
 off others. The bill and goods were sent 
 to him, but he refused to accept. Held, 
 that he was not bound. A purchaser 
 wrote his name on a piece of linen. Held, 
 acceptance of that piece, but not as to 
 other pieces not marked or produced. 
 Hodgson, 1 Camp. 233 : stated, 37 Am. 
 Rep. 17. 
 
 Delivery and acceptance necessary under 
 Statute of Frauds. Mahan v. U. S. (1872), 
 16 Wall. 143, 21 L. ed. 307, a. See 
 Tarling, 404. 
 
 Acceptance of goods under Statute of 
 Frauds; what is. Shindler, Tarling; 
 King, 35 Ark. 190, 37 Am. Rep. 11-22, n. 
 
 Statute of Frauds. Contract for sale of a 
 number of trifling articles, amounting in 
 the aggregate to the value of £10, must 
 be in writing. Tisdale v. Harris (1858), 
 20 Pick. 9, Cummings, Cas. Priv. Corp. 
 604, 3 Pars. Conts. 54, Chit., Ans., Bish., 
 
 2 Kent, 511, 55 N. J. L. 168, Huff. & 
 Wood, Am. Cas. Conts. 132. See Tar- 
 ling : 404 : cases. 
 
 Acceptance and receipt. 1 Benj. Sales, 139- 
 187. 
 
DATUM POSTS. 
 
 181 
 
 Leading Gases. — 
 
 338. LEE v. GRIFFIN (1S61), 1 Best 
 & S. 272 (101 E. C. L. R.), Adams, Sales, 
 509, Meoh. Sales, q.v., Wllllston, Sales, 
 23 Rul. Cas. 191, Ben]. Sales, Beach, 
 Conts., Ans. 67, Chit., Add., Laws. 86, 
 Clark, 54, 140, Sto., Smith, 145, Whart. 
 12, 714, Ham., 2 Page, 682, 20 Cyo. 243, 
 Hughes' Conts., 2 Wh. Ev. 874, 2 Kent, 
 504, 14 L. R. A. 231, 6 L. R. A. 791, 
 31 L. R. A. 508, 9 Mews' B. C. L. 
 
 Lee stated: Statute of frauds. The sale of 
 goods not yet in existence — as of teeth 
 to ■ be manufactured — is within the stat- 
 ute, if the price exceeds $50. Lee. But 
 this case is now disapproved. See Licet 
 dispositio de interesse future sit inutilis, 
 etc. ; Goddard, 115 Mass. 450, 15 Am. Rep. 
 112, Huff. W. Conts. 127 ; stated : Lee, 
 also Tarling and Baldey ; Hientz, 29 Or. 
 55, 54 Am. St. 777 n. Pratt, 109 Mo. 
 78, 32 Am. St. 656, stating Lee; Central 
 Co., 75 Wis. 170, 17 Am. St. 186, n. 
 (contract, whether for sale or manufac- 
 ture). Remedy for non-accepting goods 
 manufactured. Moody : Hientz, supra. 
 
 Distinctions between sales of personalty 
 and agreements for work and labor. 
 Plynn, 91 Cal. 669, 14 L. R. A. 230, n. ; 
 Central Co., 75 Wis. 170, 6 L. R. A. 788, 
 n., 17 Am. St. 186 ; Brown Co., 64 Minn. 
 450, 32 L. R. A. 593, n. ; Forsyth, 68 Vt. 
 116, 32 L. R. A. 788, n. 
 
 339. BIEKMYE (or Byrkmyr, Burk- 
 mar, Buckmyr, Bourkmire, Bourkamire) 
 v. DARNELL (or Darnall) (1705), 1 & 2 
 Salk. 27, 2 Ld. Raym. 1085, Mod. Cas. 
 248, 1 Smith, Lead. Cas. 516-562, ext. n., 
 8th ed., 11th ed. (reviewing Bngllsh 
 cases), Pinch, Cas. 231, Ans. Conts., Chit., 
 Beach, Add., Smith, 106, Sto. 1114, 1437 
 Laws. 71, Clark, 96, Ham. 285, 287, 
 Hughes' Conts., Throop, Verb. Agreem., 
 q.v., Brant & Pell, Sureties, 9 Rul. Cas. 
 340, 2 Whart. Bv. 879, Browne, Stat. 
 Frauds. 
 
 Cited, §§ 280-288, Gr. & Rud. 
 
 Birkmyr stated: Darnell guaranteed Birk- 
 myr that B. would "surely return to B. his 
 horse if B. would let him have it, which 
 B. did, with the understanding that D. 
 was responsible for B.'s safely returning 
 the horse. Upon the faith of this the 
 horse was loaned, and B. did not return 
 it. B. sued D, as surety. Held, that 
 under the fourth section of the Statute 
 of Frauds (29 Charles II., cap. 3), Birk- 
 myr could not recover, because the col- 
 lateral undertaking of D. was not in 
 writing. Birkmyr; Kilbride, 113 Cal. 
 432, 54 Am. St. 361, n, 
 
 In collateral undertakings there must 
 not only be a consideration, but a writing 
 expressing the contract as well. Birk- 
 myr; Packer, 35 Conn. 343, 95 Am. Dec. 
 246-263, ext. n. (collateral and original 
 undertakings — what cases come within 
 the statute) ; Bray, 80 Wis. 16, 27 Am. 
 St. 17-20, n. ; Wolverton v. Davis (1888), 
 85 Va. 64, 17 Am. St. 56, n. Promise 
 by a stranger to a debt to indemnify a 
 surety is prima facie within the Statute 
 of Frauds, because it is in effect a prom- 
 ise to answer for the default of the prin- 
 cipal debtor. Stewart, 71 Mich. 201, 15 
 Am. St. 252. n. ; Smith, 64 Conn. 264, 42 
 Am. St. 181-194, ext. n. (benefit to prom- 
 
 Leading Cases. — 339. Birkmyr. 
 
 isor an element) ; M'Kenzie, 9 Wash. 442, 
 43 Am. St. 844, n. (Id.) ; Dillaby, 60 
 Conn. 71, 13 L. R. A. 643, n. ; Tighe, 
 116 N. Y. 263, 5 L. R. A. 617, n. ; Nading, 
 121 Ind. 465, 6 L. R. A. 686, n. 
 Torts. The statute covers torts, as well as 
 every form of action for which one may 
 become liable. Browne, Stat. Fraud, 155 ; 
 Kirkham, 2 Barn. & Aid. 613 ; stated, 
 Browne, Stat. 190. 
 Statute of frauds; guaranty; novation. 
 Promise to answer for the "debt, default 
 or miscarriage of another." Eastwood; 
 Lakeman; Tatlock (novation). Statute 
 of Frauds does not apply to original debt 
 of debtor, but to collateral undertakings, 2 
 Rand. Com. Paper, 871 ; 2 Danl. 776 ; 
 Sto. Notes, 457, 470, Chit. Notes & Bills, 
 283, 363; 1 Edwards, N., 319, 321, 328. 
 Nor where promisor gets no benefit. 
 Joseph, 39 Neb. 259, 42 Am. St. 571, n. 
 
 Generally. 1 Brandt, Sur., §§ 51-91 ; 3 Add. 
 Conts. 1111-1144. 2 Page, 610-639. 
 
 Guaranty. 1 Chit. Conts. 738-785. 
 
 Persons under disability ; liability of 
 guarantor for. Brown, 88 Tex. 265, 33 
 L. R. A. 359. 
 
 Promise to surety to induce him to 
 indemnify. 
 
 May, 61 Miss. 125, 48 Am. Rep. 80, 
 Huff. & W. Conts. 113. 
 
 Novation. 2 Bouv. Die. 520-523, And. Die. 
 See Tatlock v. Harris (1789), 3 T. R. (D. 
 & E.) 174, 180; Heaton, 7 N. H. 397, 28 
 Am. Dec. 353, Huff. & W. Conts. 442, 
 Pars., 2 Chit. 1371-1381. Ans. 220, Bish. 
 Add. 372-375, 1 Beach, 786, Whart., Sto. 
 Conts., Throop, Verbal Agreements, 361, 2 
 Gr. Bv. 518, 2 Kent, 555, 3 id. 78, Bro. 
 Max. 745, 1 Danl. Nego. Insts. 23, 745, 
 1 Pars. N. & B. 336, 2 id. 5, 51, 1 Chit. 
 PI. 18, 306, 1 Mews' E. C. L. 828 (Assign- 
 ment), 8 id. 1473, 1 Jac. Pish. Dig. 1208, 
 3 id. 3902 ; Griggs, 136 N. Y. 162, 32 Am. 
 St. 704, n., 18 L. R. A. 120 ; Sterling, 72 
 Wis. 36, 7 Am. St. 818 ; Cutting Co., 86 
 Cal. 574, 10 L. R. A. 369, n. ; Pope, 121 
 Ind. 317, 6 L. R. A. 688, n. ; Spycher, 74 
 Wis. 456, 5 L. R. A. 414, n. 
 
 Statute of frauds; novation; contracts not 
 within. If a debtor, a creditor and a 
 third person all agree that the latter shall 
 be the creditor, this is a novation. East- 
 wood; Bish. Conts. 1264 ; McKinney, 14 
 111. 33 ; Huff. & W. Conts. 443 ; Tweed- 
 dale, 116 Wis. 517, 96 Am. St. 1003. 
 
 Commercial paper; oral promise to accept is 
 sufficient. Walker v. Lide (1845), 1 Rich. 
 Law (N. C), 249, 44 Am. Dec. 252, n., 2 
 Rand. Com. Paper, 604, 1 Pars. N. 285, 
 1 Pars. Conts. 291 ; Wells, 6 Cush. 6, 52 
 Am. Deo. 750, n. ; Moses : 140 U. S. 298, 
 Bish. Conts. 157 ; Birkmyr. 
 
 A promise to accept to give credit with 
 a third person is within the Statute of 
 Frauds. Allen, 26 Or. 264, 26 L. R. A. 
 620-623, n. 
 
 340. PETER V. COMPTON (1694), 
 Skinner, 353, 1 Smith, Lead. Cas. (all 
 editions, 614-633), ext. n. in 8th ed., 1 
 id. 316-322, 11th ed. (reviewing English 
 cases), 5 Rul. Cas. 297-325, ext. n., 
 Browne, Stat. Frauds, 290, q. v., 2 Kent, 
 510, Throop, Verbal Agreements, 694, 17 
 Rul. Cas. 184, Ans. Conts., Pars., Chit., 
 Beach, Ham. 294, Hughes, Smith, 134, 
 Laws. 74, Clark, 109, Sto. Conts. 1443, 2 
 
182 
 
 DATUM POSTS. 
 
 Leading Cases. — 340. Peter. 
 
 Page, 669-676, 20 Cyc. 198-209 ; cited, 
 § 288, Gr. fi Rud. 
 Peter v. Compton stated: C, for one guinea 
 paid him, promised to give P. 1,000 
 guineas on his wedding day. Two years 
 later P. married and demanded perform- 
 ance, which C. declined upon the ground 
 that the fourth section of the Statute of 
 Frauds provided that "an agreement that 
 is not to be performed within the space 
 of one year from the making thereof" 
 must be in writing. Upon this issue was 
 joined. Hem, that the statute only ap- 
 plies to agreements which are in their 
 terms incapable of performance within 
 the year — that P. might have married in- 
 stantly, and therefore C. was liable. 
 
 1 Add. Conts. 212 ; Doyle, 97 Mass. 
 208, 93 Am. Dee. 80-90, n.. Chit. Conts. 
 99-102 ; Brown, 69 Conn. 596, 13 L. R. 
 A. 646, n. ; Woodridge, 42 Fed. 311, 9 
 L. R. A. 129, n. ; Seddon, 85 Va. 928, 3 
 L. R. A. 337, n., 13 Va. L. J. 284 ; Low- 
 man, 124 Ind. 416, 7 L. R. A. 784, n. 
 (must be executory on both sides) ; Ar- 
 kansas R. R., 54 Ark. 199, 11 L. R. A. : 
 621, n. ; Thomas, 86 Va. 5 L. R. A. 529, 
 n. ; Peters, 19 Pick. 364, 31 Am. Dec. 142, 
 Huff. & W. Conts. 120 ; Bracegirdle v. 
 Heald (1818), 1 Barn. & Aid. 722, 19 
 R. R. 142, 17 Rul. Cas. 177-186, n. ; 20 
 Cyc. 208. 
 
 Statute of frauds. Contracts not to be per- 
 formed in one year, and incapable of such, 
 must be in writing if executory and re- 
 lating to lands. Young v. Drake (1851), 
 1 Seld. 463, 55 Am. Dec. 356-360, n. 
 (leases may begin in futv.ro), 17 Am. St. 
 753, Bish. Conts. 1302, Dev. Deeds, Whart. 
 Bv. See Whiting, 52 Mich. 462, 50 Am. 
 Rep. 265 ; 1 Wash. R. P. 614 ; Jellett, 
 43 Minn. 166, 7 L. R. A. 671, n. ; Sears, 
 3 Colo. 287. Any excess is within the 
 statute. Chase : 126 ; Wis. 75, 110, Am. 
 St. 296. 
 
 That a slight consideration will sustain 
 a heavy obligation is well illustrated in 
 Peter; Bainbridge : 332. 
 
 Contract to employ when within the 
 statute. Sax, 125 Mich. 252, 84 Am. St. 
 572. 
 
 341. LESTER v. FOXCROFT (Fox- 
 croft v. Lester, or Lyster) (1701), 1 
 Colles 108, stated, 2 Vern. 436, 23 Bng. 
 Rep. 892, 1 Lead. Eq. Cas. (W. &T.) 1027- 
 1063, ext. n., 3 L. R. A. N. S. 791, Beach, 
 Conts., Chit., Sto. Conts., Bigl. Fraud, 2 
 Sto. Eq. PI. 761, 3 Pom. Eq. 1409, 1 Dev. 
 Deeds, 139, 20 L. R. A. 38, Browne, Stat. 
 Frauds 442, Mews' E. C. L., Hughes' Conts. 
 
 Cited, p. 39; §§ 107, 127, 147, 150, 180, 
 223, 230, 289, 290, 326, 328, 329, 331, 
 Hughes' Proc. ; §§ 38, 70, 124, 200, 287, 
 288, 297a, 308, Gr. & Rud. 
 
 Lester stated: L. orally agreed with F. for 
 a tenancy, and under this took possession 
 of the premises, and continued under it 
 notoriously and exclusively (Williamson 
 v. Brown), and pulled down old and built 
 new and expensive tenements. After all 
 this F. sought to defraud L. by taking ad- 
 vantage of the Statute of Frauds, which 
 requires leases for more than three years 
 (or one year) to be in writing. L. sought 
 
 Leading Cases. — 341. Lester. 
 
 and obtained specific performance. His 
 case is an equitable exception to the 
 Statute of Frauds, which is never applied 
 to effectuate a fraud. 1 Beach. Eq. 84: 
 cases. 
 Possession (Williamson v. Brown) and 
 part performance, are grounds for relief. 
 Nunn, L. R. 1 Ch. 35-41, 15 Rul. Cas. 
 368 : cases. 
 
 Wallace, 18 Or. 502, 17 Am. St. 749- 
 757, ext. n. : stated, 20 L. R. A. 37, n. 
 (oral leases for more than a year — 
 specific performance) ; Weed, 88 Ga. 686, 
 20 L. R. A. 33-40, n. ; Frame, 32 W. Va. 
 463, 5 L. R. A. 323 (equity Jurisdiction 
 to enforce oral contracts) ; 1 Beach, Conts. 
 690-701 ; Wickson, 128 Cal. 156, 79 Am. 
 St. 36 ; Young v. Bote. 
 Possession of real estate taken and held 
 exclusively, notoriously and unequivocally 
 under a contract, oral or written, a notice 
 of the occupant's right. In such case 
 a writing and registration — recording of 
 it — are not indispensable. Fair ; Le Neve : 
 396; Bell v. Twilight; Bisph. Eq. 385, 1 
 Dev. Deeds, 146, 2 Warv. Vend. 764-777. 
 Possession taken and expenditures made 
 under a contract, take cases out of the 
 Statute of Frauds. In such cases oral 
 leases may be valid for a greater period 
 than that provided for in the Statute of 
 Frauds. Cases of this kind are equitable 
 exceptions to the statute. 2 Page Conts. 
 717-728. Wack, 2 Whart. 387, 30 Am. 
 Dec. 269, 1 Bisph. Eq. 385, 17 Am. St. 
 757 ; Swash, 14 Wash. 426, 32 L. R. A. 
 796. Here acts speak louder than words. 
 Ann Berta, 42 Tex. 18. Roberts, — Or. — 
 3 L. R. A. N. S. 790-817, ext. n. 
 Statute of frauds; contracts relating to real 
 estate; equitable exceptions to the Statute 
 of Frauds ; part performance ; contracts 
 proved by "act and operation of law." 
 Res ipsa loquitur; Probatis extremis prw- 
 sumuntur media. Lyon ; 1 Dev. Deeds, 
 150; Higgles, 154 U. S. 244, 38 L. ed. 
 976, n. ; 1 Chit. Conts. 422 ; Woollam : 53. 
 Statutes are construed to defeat fraud not 
 to advance and protect it. The construc- 
 tion of the statute of frauds in Lester well 
 illustrates this rule. Riggs ; Lex non ex- 
 acte, etc. ; Ex dolo malo non oritur actio; 
 Ubi jus ibi remedium; Nelson, 96 Ala. 515, 
 38 Am. St. 116, n. ; Grant, 63 Conn. 530, 
 38 Am. St. 379, n. 
 Facts, not conclusions must be pleaded. 
 
 Green. 
 Pleading and proving equitable exceptions 
 to the statute of frauds is surpassingly 
 technical. It is more so than the require- 
 ments for perjury or conspiracy, or of 
 res adjudicata. Criminal procedure is 
 not more certain nor more technical than 
 civil. Sprague, — Or. — , 4 L. R. A. N. S. 
 410-416, ext. n. (proof required). 
 There may be a specific performance of an 
 oral agreement respecting real estate in 
 contradiction of the Statute of Frauds. 
 Bigl. Fraud, 385-394 ; Fair ; 1 Dev. Deeds. 
 133-173. 
 
DATUM POSTS. 
 
 183 
 
 Leading Cases. — 341. Lester. 
 
 Possession and part payment sufficient. 
 Frame v. Dawson (1807), 14 Ves. (Bng.) 
 386, 9 R. R. 304, 33 Bng. Rep. 569, 
 Mews' E. C. L. Bigl. Fr. and 388, Bisph. 
 Eq. 385, 2 Sto. Eq. 760-763, 1 Dev. Deeds, 
 141, 169; Wills v. Stradling (1797), 3 
 Vesey, Jr. "378, 4 R. R. 26, 3 Eng. Rep. 
 1063 ; stated, 20 L. R. A. 38, Browne, 
 Stat. Frauds, 476, 479, Mews' E. C. L. 
 Let the purchaser beware (Caveat emp- 
 tor), Bro. Max. 768. 
 
 Cited, §§ 58, 147, 149, 195, 237, 303, Gr. & 
 Rud. 
 
 342. THOMSON v. DAVENPORT 
 (1829), 9 Barn. & Cress. 78 (17 E. C. L. 
 R.), 4 M. & Ry. 110, 2 Smith Lead. Cas. 
 398, 8th ed., 11th ed. ; Chit: Conts., 1 
 Add. 56, 57, 80, Sto. 253, 311, Smith 442, 
 443, 447, 457, Whart. Laws., Clark, Pars., 
 Ans. (rule stated), Hughes' Conts., Jones 
 Construe. 94, 175, 1 Wh.' Ev. 75, 2 id. 
 951, 1 Kent, 631, 4 id. 142, 15 L. R. A. 
 65, Sto. Ag. 267-269, ext. n., 3 Suth. Dam. 
 796, 2 Pars. N. & B. 179, Mech. Ag., 
 Mech. Cases Ag., Whart. Ag., 1 Chit. PI. 
 41, 45, Bro. Max. 822, 1 Gr. Ev. 196, 
 Mews' E. C. L., Mahon Cy. ; 14 C. B. (5 
 J. Scott) 390 (78 E. C. L. R.) (states 
 Thomson, Addison and Paterson cases). 
 Cited, §§ 230, 306, 307, 313, Hughes' Proc. 
 
 Thomson stated: Davenport sued Thomson 
 to recover goods sold and delivered to T. 
 at his instance and request, through his 
 agent, one McKune, who bought the goods, 
 not, however, pretending to be buyer for 
 himself, as he informed D. be was buying 
 for customers in Scotland, but he did not 
 mention their names, and D. did not ask 
 for them. Afterwards M., the agent, 
 failed, and this was brought. T. insisted 
 that the credit was exclusively given to 
 M., the agent, and that therefore he was 
 not liable. Held, D. could recover from 
 T., the principle being that where an agent 
 does not disclose the name of his principal, 
 the creditor may afterwards elect to hold 
 the real principal. 
 
 1. Where one deals with an agent, know- 
 ing his principal, and then gives exclusive 
 credit to the agent, such election is final 
 and conclusive ; afterward the principal 
 cannot be sued. 
 
 2. When agent appears to be principal, 
 but afterwards it is discovered he is only 
 an agent, then a person dealing with him 
 may sue either the agent or his principal, 
 as he may elect. In such cases an election 
 should be made within a reasonable time. 
 
 3. Agent dealing as if principal, binds 
 himself; if as agent, but not disclosing 
 his principal, then the principal, when 
 discovered, may be sued. Agent disclosing 
 his, principal is not bound unless credit 
 was exclusively to him. 
 
 4. Agent signing contract as principal 
 is bound as such. Oral evidence is inad- 
 missible to alter or vary the writing — 
 the agent is estopped from disputing it ; 
 but the creditor is given a larger latitude, 
 for in simple contracts he may show who 
 the real principal is, unless the contract 
 is commercial paper. As to this a strict 
 rule obtains. 
 
 Disclosed and undisclosed principals; parties. 
 
 Leading Cases. — 342. Thomson. 
 
 Pom. Rem. 141, 175, 177, 1 Chit. Conts. 
 8, 41-45, n., 1 Mech. Sales, 268. 
 
 Undisclosed agent liable for negligence as if 
 disclosed. Morris, 200 111. 132, 93 Am. 
 St. 180, n. 
 
 Paterson v. Bandasequi (1812), 15 East, 62; 
 13 R. R. 68, 2 Smith L. C. 386-397, 8th 
 ed., 365-371, 11th ed., Mech. Cases Ag. 
 545, Mech. Ag„ Whart, Sto., Chit. Conts., 
 Pars., Bish., Add., Hughes, 1 Rand. Com. 
 Pap. 1079, 1085, 2 Kent, 633, Mews' E. 
 C. L. § 324, Hughes' Proc. 
 
 Thomson, Paterson and Addison are three 
 widely cited cases in Contract and Agency, 
 and in reference to who are proper parties 
 -in suits on contracts of agents. The prin- 
 ciple involved is of much consequence 
 throughout the law. It courses through 
 many strands ; it shows that rules of con- 
 tract and of procedure are interactions. 
 
 343. ADDISON V. GANDASEQUI 
 (1812), 4 Taunt. 573, 13 R. R. 689, 1 
 Smith, 392, Pars. Conts., Chit. Conts., 
 Mech. Ag., Mech. Cas. Ag., Sto., Whart., 
 Huff., Tiffany, Ag., Mews' E. C. L. ; Cream 
 City, 84 Wis. 53, 36 Am. St. 895, 21 L. 
 R. A. (oral evidence, when admissible to 
 show principal) ; Ferguson, 91 Cal. 63, 14 
 L. R. A. 65, citing Thomson v. Davenport. 
 See Qui sentit, etc. ; Hughes' Conts. 
 
 Cited, §§ 306, 307, 313, 324, Hughes' Proc. 
 
 344. TAXNTOK V. PRENDERGAST 
 (1842), 3 Hill, 72, 38 Am. Dec. 618, 1 
 Am. L. C. 755, 1 Pars. Conts. 66, 101, 1 
 Chit. 302-315, Smith, 447, Laws. 190, 192, 
 Clark, Sto., Hughes' Conts., Mech. Ag., 
 Sto., Whart., Huffc, 1 Rand. Com. Pap: 
 147, 2 Whart. Ev. 950, 2 Kent, 631, 632. 
 
 Undisclosed principals; right of, under con- 
 tract made in agent's name. Ford, 21 
 How. 287, 16 L. ed. 36, n. ; Powell, 109 
 Ala. 95, 55 Am. St. 915-923, n. 
 
 Deed must be executed in principal's name, 
 or he is not bound. Elwell v. Shaw; 
 Briggs v. Partridge, 64 N. Y. 357, 21 Am. 
 Rep. 617 ; Mech. Ag., Huffc. ; Sanger, 91 
 Tex. 472, 66 Am. St. 913, n. ; McDonough, 
 1 Harris & J. (Md.) 156, 2 Am. Dec. 510- 
 518, ext. n. (when instrument will be in- 
 spected). 
 
 Commercial paper; same rule as in deeds ap- 
 plies. Oral evidence is inadmissible to 
 alter. Sturdivant : 410 ; Mech. Ag. 696 ; 1 
 Rand. Com. Paper, 147, 1 Danl. 287 ; 
 Brown : 54. 
 
 345. LIVINGSTON V. ROOSEVELT 
 (1809), 4 Johns. 251, 4 Am. Dee. 273- 
 283, n., 1 Am. Lead. Cas. 507-562, ext. 
 n., 1 Pars. Conts., Chit, Sto. 309, Rand. 
 Com. Paper, Danl., Pars. N. & B., Lind. 
 Part., Pars. Part, Sto. Part., 3 Kent, 44. 
 Cited, §§ 306, 312, Hughes' Proc. ; § 303, 
 Gr. & Rud. 
 
 Livingston stated: Partnership; "scope"; 
 "range of business." C. C. R. & Co. dealt 
 in sugar under a sign "Sugar House" ; 
 C. I. C. was a member of the firm, and 
 indorsed a note given for twenty pipes 
 of brandy in the Arm name, all of 
 which the indorsee, L., knew ; still he sued 
 upon the note, and the company pleaded 
 non assumpsit, and succeeded upon it. 
 Baxter, 90 Iowa, 217, 48 Am. St. 432- 
 442, n. 
 
 Partners are agents for each other, and 
 
184 
 
 DATUM POSTS. 
 
 Leading Gases. — 345. Livingston. 
 
 within the "range of the agency," the 
 "scope of the business" may bind each 
 other as an agent may a principal. Liv- 
 ingston. Qui sentit commodum, etc. 
 
 How far partners are liable for each other's 
 acts. Note 12, L. ed. (U. S.) 81; Kerper, 
 48 Ohio, 613, 15 L. R. A. 656-661, »n. 
 (after dissolution). See also Waugh ; 69 
 Am. St. 403-436, ext. n. Surviving part 
 ners, powers of. Moore, 17 Wall, 417, 
 21 L. ed. 642, n. 
 
 Non-trading partnership ; bill or note 
 of, not binding on members not signing. 
 Lee, 45 Kan. 8, 11 L. R. A. 238, n. 
 (Non hwc in fwdera veni). 
 
 Sharing in profits constitutes one a partner 
 to third persons. Waugh, n.. Smith, Lead. 
 Cas. ; M'Cullough, 1 Har. & G. (Md.) 96, 
 18 Am. Deo. 271, 1 Am. Lead. Cas. 569- 
 591, n., 1 Pars. Conts. 221, 3 Kent, 65. 
 
 Partnership. Joint creditors in equity can 
 only look to the surplus of the separate 
 estate after payment of the separate debts. 
 Separate creditors in equity can only seek 
 indemnity from the surplus of the joint 
 fund after the satisfaction of the Joint 
 creditors. Livingston; Smith (1819), 16 
 Johns. 102, 1 Am. Lead. Cas. 563-591. 
 
 The government's prior lien is subject to this 
 equity and attaches accordingly. U. S. v. 
 Hack (1834), 8 Pet. 271, 8 L. ed. 941, 
 n. Quando jus domini, etc. 
 
 One partner cannot pay his individual debt 
 with firm assets. Rogers v. Batchelor 
 (1838), 12 Pet. 221, 1 Am. L. C. 358, 2 
 Bates, Part., Rand. Com. Paper, Danl., 
 Pars. N., Pars. Conts., Chit. Bigl. Fraud, 
 375-378, 3 Kent, 44, 85 Ala. 199, 8 Am. 
 St. 38. 
 
 Partners may recover funds misappropriated. 
 Davies, 124 111. 474, 7 Am. St. 373-380, 
 ext. n. And have them applied to firm 
 debts. Farwell, 151 111. 239, 42 Am. St. 
 237, n. 
 
 Execution sales of partnership property. 
 Williams, 115 Ind. 45, 7 Am. St. 403, n. 
 Levy on partnership property for the debt 
 of a partner. Skavdale, 21 Wash. 10, 46 
 L. R. A. 481-501, ext. n. Partnership 
 creditors, rights and remedies of; pro- 
 cedure. Smith, 87 Iowa, 93, 43 Am. St. 
 359-380, n. 
 
 Partner alone may make an assignment for 
 benefit of creditors. Anderson, 1 Brock. 
 456, 1 Am. L. C. 530-610, ext. n. ; Lind. 
 Part., Pars. Part., Sto. Part., Dev. Deeds, 
 110, Pars. Conts., Chit. Equitable estop- 
 pel — application to partners. Ewart, 
 Estop. 513-529. 
 
 346. BROWN v. BTTTCHEBS' AND 
 DROVERS' BANK (1844), 6 Hill, 443, 
 Redf. N. & B. 110, 41 Am. Dec. 755, 
 Bish. Conts., Pars., Clark, 125, Sto. 1176 
 Hughes' Conts., 1 Page 81, 3 Kent, 78, 4 
 id. 514, Rand. Com. Pap., Danl., 1 Pars. 
 N. 22, 23, Huff. Nego. Insts., 1 Mech. 
 Sales, 451. Cited, § 312, Gr. & Rud. 
 
 Brown stated: Bight to adopt any name; 
 form of endorsement. The following fig- 
 ures, viz. "1, 2, 8," in connection with 
 evidence tending to show that person who 
 placed them there meant thereby to bind 
 
 Leading Cases. — 346. Brown v. B. 
 
 himself as an indorser, constitutes a valid 
 indorsement, though it also appeared that 
 he could write. R. v. Martin, sub, For- 
 gery. One may adopt any name he 
 pleases, at any time. Bro. Max. 196, n., 
 Smith, Conts. 95 ; see Names; 
 Writing may be in pencil. Bish. Conts. 341, 
 1 Rand. Com. Paper, 60, Byles, B. 79, 
 Chit. B. 147, 1 Danl. § 83, 1 Edwards, B. 
 169, 1 Pars. N. 21, Sto. N., § 11; Geary 
 v. Physic (1826), 6 Barn. & Cres. 234 (11 
 E. C. L. R.), 7 Dowl. & Ry. 653 (16 E. 
 C. L. R.), 29 R. R. 225, Mews' E. C. L., 
 Huff. Nego. Insts., 1 Benj. Sales, 258 ; 4 
 Kent, 514 ; Closson, 4 Vt. 11, 23 Am. 
 Dec. 245 ; Reed, 14 Tex. 329, 65 Am. 
 Dec. 127; cited, Bish. Conts. 341, 1 Dev. 
 Deeds, 136. 
 Pencil writing sufficient in deed of settle- 
 ment. Brown ; McDowel, 27 S. C. 347, 1 
 Strobh. Eq. (S. C.) 347, 1 Rand. Com. 
 Paper, 60 ; note 7 Am. Dec. 289. 
 Contract. Merritt, 12 Johns. 102, 7 Am. 
 Dec. 286, 2 Schoul. Pers. Prop. 539; 
 Jeffery, 1 Stark. 13 ; Mews' E. C. L. ; 
 Draper: 2 Speers (S. C.) 2 (under the 
 Statute of Frauds), Bish. Conts. 156 1 
 Wh. Ev. 516, Wh. Crim. Ev. 520 ; Clason, 
 14 Johns. 484, Huff. & W. Conts. 102, 109. 
 Wills. Green v. Skipworth (1809), 1 
 Phillim. 53 ; Dickenson, 2 Phillim. 173 ; 
 Meyers, 84 Pa. 510, 24 Am. Rep. 227. 
 Codicil. Rymes, 1 Phillim. 22. 
 Pencil writing not sufficient for records. 
 Meserve, 4 Foster (N. H.), 295; Fail, 50 
 Ala, 342. Pleadings ; these should be in 
 ink. Fail; 1 Bish. Crim. Proced. 337, 8 
 Encyc. PI. & Pr. 21 (but a pencil is recog- 
 nized). Recording map with pencil is in- 
 sufilcient. Caldwell, 30 Cal. 539, 89 Am. 
 Dec. 131. Slate : writing on, sufllcient. 1 
 Wh. Ev. 616, n. Writing sufficient if on 
 anything, in any way, if only expressive, 
 as tallies on wood. 1 Best, Ev. 215 ; Wh. 
 Crim. Ev. 520 ; 7 Am. Dec. 289, n. 
 
 Written contracts not superior to oral 
 ones, except for records, deeds, commer- 
 cial paper and contracts required by 
 statute to be in writing. 1 Add. Conts. 7 ; 
 Bish. Conts. 54 ; 3 BI. Com. 158. See 
 Frauds and Perjuries ; Stipulations 
 Cited, §227, Hughes' Proc. 
 A deed in one's own handwriting needs no 
 other or different signature. Newton, 66 
 Tex. 142. See § 32, Hughes' Conts. What 
 sufficient under statute of frauds. Schnei- 
 der v. Norris, Smith, Conts. 93, 2 Page 
 Conts. 688-695. 
 Names; signature. One may use or adopt 
 any name he pleases. "1, 2, 8," in pen- 
 cil, was adopted as a name, and is a 
 sufficient signature and indorsement. 
 Brown, etc. ; Expressio eorum, etc. ; Cer- 
 tum est quod, etc. ; Cleveland Bank, 97 
 Tenn. 458, 39 L. R. A. 423, n. One may 
 adopt any name he pleases, if he does not 
 personate another ; personating another is 
 forgery. R. v. Martin, sub, Forgery. But 
 not where credit was given exclusively to 
 the person adopting the new name. R. v. 
 Martin; 1 Danl. Nego. Insts., § 141. Sig- 
 natures of a party. 1 Benj. Sales, 255- 
 
DATUM POSTS. 
 
 185 
 
 Leading Gases. — 346. Brown v. B. 
 
 264 : cases. Person fraudulently using 
 fictitious name is guilty of forgery. 1 
 Danl. Nego. Insts., § 107. Bills and notes 
 to which there are fictitious, or no exist- 
 ing parties, are sometimes void, except in 
 the hands of innocent holders. 1 Panl. 
 Nego. Insts., §§ 136, 141 ; Armstrong, 46 
 Ohio, 512, 6 L. R. A. 625, n. Presump- 
 tion of identity of person from identity of 
 name. Rupert, 35 Neb. 587, 17 L. R. A. 
 824, ext. n. Acquisition and use by an 
 individual of a name. Laflin & Rand, -146 
 Pa. 434, 14 L. R. A. 690, n. 
 
 In judicial proceedings names must be 
 set out with certainty. Wiebold : 98. See 
 Idem sonans. 
 
 Signature. Agent for principal may write 
 latter's name for him in his presence and 
 at his direction, and such signing is in 
 law the principal's. Hanley : 204; Mech. 
 Ag. 96, Bish. Conts. 345 ; Lewis, 98 Ala. 
 479, 22 L. R. A. 297, n. ; Hall: 137 
 N. C. 183, 107 Am. St. 404-479 (liberal 
 rule) . 
 
 Signatures by mark; what sufficient. Zach- 
 arie, 12 Pet. 151, 9 L. ed. 1035, n., 1 
 Gr. Bv. 272, n. ; Guilfoyle, 96 Cal. 598 ; 
 22 L. R. A. 297, n. Mark must be proved 
 to be genuine. Note, 9 L. ed. (U. S.) 
 1036. Attorney's signature, if printed or 
 lithographed, sufficient. Herrick, 37 Minn. 
 250, 5 Am. St. 841. Statute requiring 
 signature to process is satisfied with sten- 
 cil. Loughren, 125 la. 578, 106 Am. St. 
 319. 
 
 Accepting and acting on a contract is a suf- 
 ficient signing. Thieband, 143 Ind. 340, 
 344 : cases ; Moller. 
 
 Proof of signature by mark when attesting 
 witnesses thereto are dead or cannot re- 
 member the transaction. Wienecke, 88 
 Md. 182, 44 L. R. A. 142-149, ext. n. 
 
 347. BROWN v. UMPHEAB (1862), 
 35 Vt. 252, 2 Chit. Conts., Wharf. Conts. 
 206, 207, Kerr on Fraud and Mistake, 2 
 Pom. Eq., 37 Minn. 32, 3 Am. St. 317, 
 3 Wash. R. P. 382, 1 Perry, Trusts, 2 
 Beach, Eq., Hughes, Conts., 1 Page Conts. 
 
 Cited, §§ 81, 306, Gr. & Rud. 
 
 Brown stated: Mutual mistake ground for 
 rescission. B. conveyed to L. a parcel of 
 land upon which was a spring unknown 
 to L., and particularly valuable to B. for 
 use of his house upon an adjacent parcel. 
 B. inadvertently made no reservation for 
 right to use the water, which was of more 
 value to him than the purchase price paid 
 by L. Rights of third persons had not 
 Intervened and the parties could be placed 
 in statu quo. Held, B. was entitled either 
 to a rescission or to use the water, at 
 the election of L. 
 
 A contract founded in a mutual mistake of 
 the facts constituting the very basis or 
 essence of it will avoid it. Brown ; Bos- 
 ton : 320 ; Newton, 66 N. H. 136, 49 Am. 
 St. 593, 9 L. R. A. 50 ; Wheadon ; Cooke : 
 321 ; Benson, 127 Cal. 532, 78 Am. St. 81 ; 
 Laws. Conts. 212, 214. 
 
 Silateral error may be corrected. 1 Whart. 
 Conts. 207. Concurrent error ground for 
 
 Leading Cases. — 347. Brown v. L. 
 
 rectification of mistake. Whart. Conts. 
 206. 
 
 Negligence does not excuse. Whart. Conts. 
 196 ; Williams v. Stoll ; Young v. Grote j 
 Ewart, Estoppel, 98-121. A marriage 
 under mistake as to person is voidable. 
 Whart. Conts. 265. Rescission of agree- 
 ments. Brown, Lansdowne. 
 
 Reformation. Hunt v. Rousmanier ; 2 Beach. 
 Eq. 538-555 ; Adams, Eq. 402-452 ; Bisph. 
 Eq. 
 
 348. KYLE v. KATAHAGH (1869), 103 
 Mass. 356, 4 Am. Rep. 560-563, Huff. & 
 W., Conts. 246, Whart. Laws. 214, Clark 
 298, Sto. 814, 995, Ham. 97, 1 Pars. 545, 
 2 Chit. 1024, 1033, Page, 74, Hughes' 
 Conts., 1 Dev. Deeds 27, Mech. Sales, 
 Benj. Sales, 606, n. 
 
 Kyle stated: Mistake avoids a contract. See 
 (Hunt v. Rousmanier). Kyle contracted 
 for a good title to certain lots on Prospect 
 street in Waltham. There were two Pros- 
 pect streets in Waltham, and the land he 
 intended to bargain for was not the land 
 his proposed vendor owned. Held, there 
 was no sale. Ignorantia facti, etc. Mis- 
 take as to subject-matter avoids a 'con- 
 tract. There must be a union of the con- 
 tracting minds to the same thing in the 
 same sense. If one is talking about one 
 thing and the other something else, there 
 is no contract. Kyle ; Boston : 320. Gen- 
 uine consent must be given, unmixed with 
 fraud or mistake. The formula of a con- 
 tract is not sufficient. A transaction of 
 mere frolic or banter is insufficient. Con- 
 tracts are about things, realities, not fic- 
 tion, mistakes, or nonsense : Fabula non 
 judicium. Ans. Conts. 3, n. There must 
 be reality of consent. Ans. Conts. 121- 
 171, Laws. Cont. 212. Bro. Max. 690, n. 
 And of consideration. White: 317, 
 Beaumont: 367. 
 
 Mistake will avoid a contract. Hunt v. 
 Rousmanier : cases ; Brown ; Ans. Conts. 
 121-135, 1 Benj. Sales, 606-635 ; Zaleski : 
 306; 2 Page Conts. 55-86, 1237-1250. 
 
 Mistake as to existence or identity of a sub- 
 ject-matter avoids a contract but not as 
 to quality or value. Hecht, 145 Mass. 
 335, 9 Am. St. 708, n. ; Zaleski. See 
 Wheadon ; Purcell, 10 Gratt. 246. Con- 
 tract for a good title is satisfied by a 
 quitclaim deed, attended with exclusive 
 possession. Kyle. Personal injuries ; 
 compromise of, not set aside because con- 
 dition of injured person was not known. 
 Kowalke, 103 Wis. 472 (citing Ignorantia 
 facti, etc.). 
 
 349. WHEADON V. OIDS (1838), 20 
 Wend. (N. Y.) 174, Keener, Quasi Conts. 
 30, 2 Chit. 929, 930, Whart. 181, 753, 
 Laws. 52, Clark, Sto. 529, 541, Ham. 100, 
 102, Hughes' Conts., 2 Pom. Eq. 839, 
 Mech. Sales. Cited, § 154, Hughes' Proc. 
 
 Wheadon stated : Mutual mistake vitiates 
 sale. W. bought of O. oats in bulk to be 
 measured by half-bushels, and upon these 
 kept tallies to 500, then they guessed the 
 remainder and W. took the whole lot at 
 1900 bushels, "hit or miss." Both erro- 
 neously counted the tallies as 500 bush- 
 
186 
 
 DATUM POSTS. 
 
 Leading Cases. — 349. Wheadon. 
 
 els instead of half-bushels, and upon this 
 error estimates were made. There were 
 only 1488 bushels, instead of 1900 as es- 
 timated and paid for. W. sued to recover 
 the price of the 412 bushels which were 
 lacking. Held, he could recover; that the 
 mistake was mutual ; that there was no 
 assent. See Brown ; Hunt ; Ignorantia 
 facti, etc. 
 
 Money paid through a mistake of fact, in re- 
 spect to which both parties were equally 
 bound to inquire, may be recovered back. 
 Wolf, 123 III. 585, 5 Am. St. 565, 
 citing Wheadon, Keener, Quasi Conts. 26- 
 158; Cox v. Prentice (1815), 3 M. & S. 
 344: cited, 8 C. B. 658, 659 (65 E. C. 
 L. R.), 16 R. R. 288; Bro. Max. 716: 
 cases ; 9 Mews' B. C. L. ; Galbraith v. 
 111. Steel Co. 
 
 Mistake as to person contracted with vitiates 
 claim of contract, although an article is 
 delivered and consumed. Boston : 320. 
 Mutual mistake as to price prevents, title 
 passing. Rupley, 74 111. 351 ; Ans. Conts. 
 123. Or as to the condition of a thing 
 sold, as where a blooded cow was errone- 
 ously supposed to be barren, the oontract 
 may be rescinded and replevin brought. 
 Sherwood, 66 Mich. 568, N. 919, 11 Am. 
 St. 531 : cited, Ans. Conts. 123 ; Laws. 
 Conts. 214 ; Zaleski : 306. 
 
 Res adjudicata; recovery at law ends liti- 
 gation. Wheadon ; Mariott. 
 
 Mutual mistake is ground for correction. 
 Murdock, 178 U. S. 139, 150. Or re- 
 formation. 2 Page Conts. 1237-1254, or 
 damages. Butler, 12 L. R. A., 273-279, n. 
 
 Mistake in the law of contract; effect of. 
 Thornton v. Kempster (1814), 5 Taunt. 
 786 (1 E. C. L. R.), 1 Marsh. 355, 15 R. 
 R. 658, 12 Mews' B. C. L. 413 ; 1 Chit. 
 Conts. 517; Gardner, 9 Allen (Mass.), 
 492, 85 Am. Dec. 779, 12 Allen, 39. 
 
 350. COG-CIS v. BERNARD (1704), 2 
 Ld. Raym. 909, 1 Salk. 26, 3 id. 11, 269, 
 1 Smith, Lead. Cas. 360, 471, 8th ed., 
 ext. n., 11th ed., Gt. Opin. by Gt. Judges, 
 40, 1 Am. Neg. Cas. 948, Smith, Conts. 
 189, Whart. 320, 505, Clark, 179, Sto., 
 Ham. 315, Laws., 1 Chit. 48, Pars. Bish., 
 Add., Hughes' Conts., Whart. Neg., Bisph. 
 Bq., 2 Best, Bv. 430, 1 Add. Torts, Cool., 
 Bish., Moak, Underh. Torts, 2 Kent, 559- 
 611, Hutch. Carr. q. v., Sto. Ag., Huffc, 
 Mews' B. C. L. See works on Bailments 
 which cite it often : Lawson, Bailm., Van 
 Zile, Bailm., q. v. It is the foundation 
 of many pages of Schouler on Bailments. 
 Royce, 20 R. I. 418, 39 L. R. A. 846. 
 
 Cited, §§ 5, 158, 284, Hughes' Proc. ; § 396, 
 Gr. & Rud. 
 
 Coggs stated: Bailments. B. volunteered 
 to assist C. to raise and transport several 
 hogsheads of brandy. B. did this so clum- 
 sily that one of them was staved, causing 
 damage. C. sued him for negligence. 
 Held, he could recover. 
 
 A gratuitous undertaking is a sufficient con- 
 sideration. Coggs ; Bainbridge : 332 ; Wil- 
 son v. Brett; 94 Tex. 287. 
 
 In Morgan v. Cox an infant killed a 
 slave while volunteering to assist him 
 drive a cow. The confidence induced by 
 undertaking any service for another is 
 
 Leading Oases. — 350. Coggs. 
 
 sufficient legal consideration to create a 
 duty in its performance. Coggs ; Rule 9, 
 Moak, Torts ; Qui per alium facit, etc. 
 Trust and confidence is a sufficient con- 
 sideration. This is a principle in agency. 
 Coggs ; Bainbridge : 332 ; 2 Pars. Conts. 
 101, 223. 
 
 Passenger's negligence; personal injury; 
 measure of damages. Penn R. Co., 102 
 U. S. 451, 26 L. ed. 141, n. ; 2 Sedgk. 
 Dam. 859-873. 
 
 Passenger ; duty of carrier to provide safe 
 appliances for. Ingalls. Carrier of pas- 
 sengers. Hutch. Carr., Suth. Dam. 934- 
 956, Sedgk. Dam. Carriers by rail. Bish. 
 Torts, 1055-1115; Cool. Torts, 626-666. 
 Whitney: 140. 
 
 Excuses of carriers; what are. Actus Dei, 
 etc. ; Cool. Torts, 754, 764, Hutch. Car., 2 
 Pars. Conts. 159, Bro. Max. 238 ; Blythe, 
 15 Colo. 333, 11 L. R. A. 615, ii. (hurri- 
 cane) ; 22 Am. St. 402 ; Smith v. R. R., 
 91 Ala. 455, 11 L. R. A. 619, 24 Am. St. 
 929 (floods) ; 2 Kent, 604. 1 Kinkead, 
 Torts, 111-123. 
 
 Connecting lines. Bish. Torts, 1110 ; Van- 
 atta, 154 Pa. 262, 35 Am. St. 823, n. 
 (beginning of liability of each) ; Central 
 R. R., 91 Ga. 282, 44 Am. St. 37, n. ; Pa. 
 R. R. v. Loftis. 
 
 Fraud of shipper in order to get lower rates. 
 U. S. Express, 65 Minn. 540, 33 L. R. A. 
 600. 
 
 Duty to carry all and for all. Little Rock, 
 57 Ark. 112, 18 L. R. A. 527, 7 Am. R. R. 
 & Corp. Rep. 270-337, ext. n., Bish. Torts, 
 1060. Qui sentit commodum, etc. 
 
 Express companies ; sending parcels. Bish. 
 Torts, 1184-1193, Cool. Torts, 762; Bul- 
 lard, 107 Mich. 695, 33 L. R. A. 66, n. 
 (duty to deliver). Their relations as car- 
 riers and of their employees to other com- 
 mon carriers. Pittsburgh R. R., 148 Ind. 
 196, 62 Am. St. 503-525, ext. n. 
 
 Baggage transfer companies; liability. An- 
 niston, 107 Ala. 600, 34 L. R. A. 137, 
 ext. n. Mail; communication by. Bish. 
 Torts, 1194-1202. Contracts of affreight- 
 ment. 3 Kent, 202, 253, 11 Rul. Cas- 
 355-376. 
 
 Carriers of freight; termination of liability. 
 Columbus, 89 Ala. 612, 3 Am. R. R. & 
 Corp. Rep. 46-64, n., 3 Suth. Dam. 910 ; 
 Constable, 154 U. S. 51-102, n. ; Bast 
 Tenn., 91 Tenn. 699, 17 L. R. A. 691, n. 
 Duties of express companies as common 
 carriers. Bullard, supra. 
 
 Delivery to carrier is delivery to consignor. 
 Ramsey, 55 N. J. L. 320, 22 L. R. A. 
 415-430, n. ; Lickbarrow : 294. 
 
 To whom delivery may be made under bill 
 of lading. Nebraska Meal Mills, 64 Ark. 
 169, 38 L. R. A. 358-367, ext. n. 
 
 Delivery to wrong person; carrier liable for. 
 Sword, 89 Tenn. 126, 3 Am. R. R. & Corp. 
 Rep. 449-454, n. ; 111. Cent., 165 111. 570, 
 36 L. R. A. 527-530 : cases ; Pac. Exp. 
 Co.. 160 111. 215, 37 L. R. A. 177, n. : 
 cases. Delivery; notice of arrival. 111. 
 Cent. R. R., supra. Actions by carriers. 
 
DATUM POSTS. 
 
 187 
 
 Leading Oases. — 350. Coggs. 
 
 3 Suth. Dam. 877-897 ; 3 Encyc. PI. & Pr. 
 870-873. 
 
 Demurrage ; delays of loading and un- 
 loading. Van Etten, 134 N. Y. 143, 30 
 Am. St. 630-641, ext. n. ; 9 Rul. Cas. 196- 
 282 : cases. 
 
 Common carriers. 2 Gr. Ev. 208-222a; 2 
 Sedgk. Dam. 840-873. Generally. Hutch. 
 Carr., Ror. R. R., Bish. Torts, 1023-1164, 
 3 Suth. Dam. 877-956 ; Ingalls v. Bills; 
 3 Encyc. PI. & Pr. 814-873. See follow- 
 ing cases. 
 
 Carriers ; railroads. Chit. Conts. 681- 
 735 ; 2 Add. Conts. 838-1016 ; 3 Encyc. 
 PI. & Pr. 814-873. 
 
 Bailments generally. 1 Chit. Conts. 661- 
 735, 2 Add. Conts. 784-881, 2 Kent, 559- 
 611, citing Coggs, g. v. 
 Deposit. 9 Rul. Cas. 282-287, n. 
 
 351. WILSON v. BRETT (1843), 11 
 Mees. & Wels. 113, 12 L. J. Exch. 264, 
 63 R. R. 630, 2 Smith, Torts, 146, n.. 
 Pars. Conts. Sto., 2 Add. 839, Chit., 
 Hughes' Conts., Mcch. Ag. Huffc, Reinh., 
 Tiffany, Ag., Cool. Torts, Whart. Neg. 
 Shear. Neg. 16, 2 Pom. Eq. 1070, 2 Kent, 
 570, Mews' E. C. L., Lawson, Bailm., 
 Story, Schouler, Van Zile, Bailm. 
 
 Bailments; gratuitous bailees. Although a 
 
 ' gratuitous bailee is bound to slight dili- 
 gence only, he must use special skill if 
 he possesses it. A party who rides a horse 
 at the request of the owner, for the pur- 
 pose of exhibiting and offering him for 
 sale without any benefit to himself, is 
 bound to use such skill as he possesses ; 
 and if proved to be conversant and .skilled 
 in horses, is equally liable with a bor- 
 rower for an injury done the horse. Wil- 
 son ; Coggs. 
 
 358. RAILWAY CO. V. LOCKWOOD 
 (N. Y. Cent. Ry. v. L.) (1873), 17 Wall. 
 (U. S.) 357, 21 L. ed. 627, 2 Smith, Torts, 
 148, n., 3 Am. Ry. Cas. 495, Thomp. L. C. 
 Carr. Pass. 378, 1 Am. L. T. 21, Laws, 
 Conts., Whart. Conts. 438, Hughes' 
 Conts.; Cau (1904), 194 U. S. 427, 
 Hutch. Carr. 262 ; 215 111. 540, 106 Am. 
 St. 107 ; Cherry, Kirby, 4 S. Dak. 105, 46 
 Am. St. 765-780, ext. n., 49 Am. St. 613, 
 
 2 Gr. Ev. 222a, Cool. Torts, Bish. Torts, 
 Greenh. Pub. Pol. 510-512, 523 (able 
 resume) ; Whart. Neg., Ror. R. R. & In- 
 terstate Law, 84 ; Busw. Pers. Inj. 116 ; 
 Baltimore Ry., 176 U. S. 498 (one may 
 contract for carrier's immunity), Schoul. 
 Bailm., Lawson, Bailm., Van Zile, Bailm., 
 
 3 Cook, Corp: 908 : cases. Cited, §§ 158, 
 303, 304, Hughes' Proc. ; §§ 296, 304, Gr. 
 & Rud. 
 
 Railway stated: L. had a pass over the N. 
 Y. Cent. R. R. It was given to him, as 
 L. was a drover — a large shipper. In- 
 dorsed upon it was this : "The person ac- 
 cepting this free ticket assumes all risks 
 of accidents, and expressly agrees that the 
 company shall not be liable under any 
 circumstances, whether of negligence of 
 their agents or otherwise, for any injury 
 to the person, or for loss or injury 
 to the property of the passenger." In an 
 accident L. was hurt. For his injury he 
 sued, and the company defended upon the 
 condition — the above indorsement. Held : 
 
 Leading Cases.— 352. Lockwood. 
 
 1. A common carrier cannot lawfully 
 make a contract for exemption from re- 
 sponsibility when such exemption is not 
 just and reasonable in the eye of the law. 
 
 2. It is not just and reasonable in the 
 eye of the law for a common carrier to 
 stipulate for exemption from responsibil- 
 ity for the negligence of himself or his 
 servants. 3. These rules apply to car- 
 riers of free passengers and for hire, and 
 with special force to the latter. 
 
 Those who accept gratuities and acts of hos- 
 pitality must conform to and abide by the 
 conditions upon which they are granted. 
 Boering, 193 V. S. 442; Payne, 157 Ind. 
 616, 56 L. R. A. : cases. (Free passenger 
 bound by stipulation limiting liability) ; 
 see Cent. L. J. 1903 (great resume of 
 cases) ; Osgood v. R. R. 
 
 Conditions on unsigned passenger tickets; 
 effect of. Walker, 62 Kan. 327, 84 Am. 
 St. 392-408, ext. n. 
 
 A man cannot barter away his life, or his 
 freedom, or his substantial rights. § 18, 
 Hughes' Conts.; 192 U. S. 446: cases. 
 
 Time limitations on first-class tickets in- 
 valid. 84 Am. St. 397. 
 
 Common carriers; passengers; traveling on 
 "free pass" with conditions. Common 
 carriers can make no conditions that will 
 exempt them from the exercise of ordi- 
 nary care. Coggs; Philadelphia R. R. v. 
 Derby ; Readhead v. R. R. ; Hollister : 354. 
 Rintoul v. N. Y. R. R., 17 Fed. Rep. 
 905, 23 Am. Law Reg. 294-306, ext. n. ; 
 Merchants : 149 111. 66, 41 Am. St. 265, 
 n. ; Alair, 53 Minn. 160, 54 N. W. 1072* 
 
 8 Am. R. R. & Corp. Rep. 445-479, ext. 
 n., 19 L. R. A. 764 ; Missouri Pac, 72 
 Tex. 127, 13 Am. St. 776-787, ext. n. 
 2 L. R. A. 75 ; Kansas City R. R., Rode- 
 baugh (baggage) ; Abrams, 87 Wis. 485, 
 
 9 Am. R. R. & Corp. Rep. 334-364 ; Ashen- 
 den v. Ry., 5 Exch. Div. 190, 31 Moak, 
 Eng. Rep. 644, 3 Mews' E. C. L. 124 • 
 Potter, 60 Fed. Rep. 625, 23 L. R. A. 746, 
 n. (baggage ; notice endorsed on ticket) ; 
 Ballou, 17 R. I. 441, 14 L. R. A. 433, n. 
 (liberal rule for carrier) ; Duntley, 66 
 N. H. 263, 49 Am. St. 610, n., 9 L. R. A. 449. 
 
 What they may contract against. 2 Kent, 
 608 ; New Jersey Co., 6 How. 344, 12 
 L. ed. 465, n. ; Muldoon, 10 Wash. 311, 
 45 Am. St. 787, 9 Am. R. R. & Corp. Rep. 
 715-722, n. (gratuitous passenger) ; S. C, 
 7 Wash. 528, 38 Am. St. 901, 22 L. R. A. 
 794, n. ; California Works, 113 Cal. 329, 
 36 L. R. A. 648-653, n. ; Queen of Pacific 
 (1900), 180 U. S. 49, Tarbell, 73 Vt. 347, 
 87 Am. St. 734, n. 
 
 Limitations of carrier's liability in bills of 
 lading. Stipulations exempting carrier 
 from liability : The contract in general. 
 Chicago, 194 111. 9, 88 Am. St. 68-134, 
 ext. a. 
 
 Baggage; loss of, from negligence. N. Y., 
 etc., Co. v. FralofE; 2 Kent, 601. 
 
 Gross negligence cannot be stipulated 
 against; Salus populi suprema lex. 
 
 Humphreys, 148 U. S. 627, 37 L. ed. 
 587, n., 1 Suth. Dam. 6 : cases ; Hutch. 
 Carr. ; Cole, 19 Wend. 251, 32 Am. Dec. 
 470-507, ext. n. ; Nulla pactione, etc. r 
 ■Pacta, etc. ; Bro. Max. 696, 697 ; 180 U. 
 
188 
 
 DATUM POSTS. 
 
 Leading Cases. — 352. Lockwood. 
 
 S. 49. Gross negligence is viewed as 
 fraud. 2 Kent. 560-562 ; Bro. Max. 696, 697. 
 
 JSxpress companies; limiting liability for loss 
 to a specified amount. Ballou, 17 R. I. 
 441, 5 Am. H. R. & Corp. Rep. 134-142, 
 n., 14 L. R. A. 433 ; Pac. Exp. Co., 46 
 Kans. 457, 4 Am. R. R. & Corp. Rep. 365- 
 385, n., 12 L. R. A. 799 ; Baltimore Ex- 
 press, 66 Miss. 558, 14 Am. St. 586, n. 
 
 Telegraph companies. Western Union Tel. 
 Co. v. Short (1890), 53 Ark. 434, 3 Am. 
 R. R. & Corp. Rep. 564-577, 9 L. R. A. 
 744, 2 Kent, 611. 
 
 A common carrier cannot become a pri- 
 vate carrier by contract. Hutch. Carr. 44. 
 
 A carrier cannot stipulate against his own 
 negligence. Liverpool Steamship Co., 129 
 V. S. 397, 32 L. ed. 788 ; Pactis, etc. § 18, 
 Hughes' Conts. 
 
 Limiting liability by contract. Little Rock, 
 57 Ark. 112, 18 L. R. A. 527, 7 Am. R. R. 
 & Corp. Rep. 270-337, ext. n. (cases from 
 all states) ; 1 Suth. Dam. 6 : cases. 
 
 There is no presumption that a passen- 
 ger assents to the terms of a complex 
 technical ticket, unless he has notice of 
 what they are. Hutchins : 181 N. Y. 186, 
 106 Am. St. 537; Cherry. 
 
 Fare; its payment; rights and duties arising 
 from. Hutch. Carr. 567, 567<Z. Tickets, 
 purchasers of.. Contract by, limitations 
 upon. Hutch. Carr. 568-801, 24 Am. St. 
 392-408. 
 
 Freight; horse; value fixed, and if of great- 
 er, this must be stated and a less rate 
 paid. Such limitations are valid. Dunt- 
 ley, 66 N. H. 263, 9 L. R. A. 449, 3 Am. 
 R. R. & Corp. Rep. 259-262, ext. n. 
 
 Limiting liability; generally. Gr. Pub. Pol. 
 509-528 : cases ; 3 Cook, Corp. 908. Time 
 for presenting claims of loss. Queen of 
 Pacific (1900), 180 U. S. 49. 
 
 353. INGALLS V. BILLS (1845), 9 
 Met. 1, 43 Am. Dec. 346, Thomp. 
 Lead. Cas. Pass. 112, Redf. Am. Ry. Cas. 
 471, 9 Am. Neg. Cas. 426, 2 Pars. Conts. 
 Sto., 1 Chit. 731, q. v. Hughes' Conts., 
 36 Am. St. 847, 2 Gr. Ev. 222, 2 Kent, 
 601, Busw. Pers. Inj. 113, Schoul. Bailm. 
 Cool. Torts, 772, Bish. 1130, Shear Neg., 
 Whart. Neg., Hutch. Carr. 
 
 Cited, § 348, Hughes^ Proc. ; § 296, Gr. & Rud. 
 
 Zngalls stated : Negligence. Responsibility 
 of carrier of passengers for defective ve- 
 hicle. Coggs ; Moak, Torts. 271-279 ; 
 Winterbottom. A. carrier is held to a 
 high degree of care. Ingalls ; Stokes : 206. 
 
 Carrier of passengers ; safety due to. Coggs; 
 Palmer, 120 N. Y. 170, 3 Am. R. R. & 
 Corp. Rep. 41-45, 17 Am. St. 629, 2 Gr. 
 208-222a; Cincinnati, etc., 120 Ind. 469, 
 6 L. R. A. 241, n. 
 
 Liveryman; liability for horse and vehicle. 
 Copeland, 157 Mass. 558, 19 L. R. A. 283. 
 n., 34 Am. St. 314 ; Jones : 376 ; Lynch, 
 163 Mass. 160, 47 Am. St. 444 ; Winter- 
 bottom. 
 
 Elevators; same rule applies to. Southern 
 B. & L. Ass'n v. Dawson ; Treadwell, 80 
 Cal. 574, 5 L. R. A. 498, n. 
 
 Railroads; duty to furnish improved appH- 
 
 Leading Cases. — 353. Ingalls. 
 
 ances. Greenlee, 122 N. C. 977, 65 Am. 
 St. 734, 744, ext. n. 
 
 Common carriers are bound to use the great- 
 est care, but are not insurers. Readhead 
 v. Midland, etc. Ry. (1869), L. R. 5 Q. B. 
 379, 2 Q. B. 412, 8 B. &' S. 371 ; 12 Mews' 
 E. C. L. 480 ; on appeal, 9 B. & S. 519 ; 
 Cool. Torts, Bish. Torts, Add. Torts. 
 Whart. Neg., Shear. Neg., Pars. Conts., 
 Add. Hutch. Carr., 2 Kent, 600, Busw. 
 Pers. In]. 378 ; Dodge, 148 Mass. 207, 
 12 Am. St. 451, n., 2 L. R. A. 83; 
 Schoul. Bailm. Diligence required where 
 life is involved. Bessemer, 121 Ala. 50, 
 77 Am. St. 17-30, ext. n. 
 
 354. HOLLISTEB V. KOWLEH (1838), 
 19 Wend. (N. Y.) 234, 32 Am. Dec. 455, 
 Thomp. Lead. Cas. Pass. 489, Greenh. 
 Pub. Pol. 1 Add. Torts, 656, 2 Gr. Ev. 
 215, Cooi. Bish. 3 Suth. Dam., Pars. 
 Conts., Chit. Add. Laws. 229, Sto., Whart, 
 Hughes' Conts., Bigl. Fraud, 2 Kent, 608, 
 Busw. Pers. In]., Whart. Neg., 6 How. 
 383, Schoul. Bailm.. § 18, Hughes' Conts. 
 
 Cited, §§ 303, 304, 296, Gr. & Rud. 
 
 Sollister stated: Hollister was a passenger, 
 with trunk, on Nowlen's stage from TJtica 
 to New York. The stage line displayed at 
 all stations : "All baggage sent or car- 
 ried on the Telegraph Line is at the risk 
 of the owners thereof." The trunk was 
 lost and H. sued N. for its value, who de- 
 fended upon the ground that by special 
 contract he was exempt from liability, and 
 that this contract arose from the notices 
 displayed at the stations, and to these 
 were added H.'s presumed knowledge and 
 silence. Held, N. was liable. 
 
 Conditions indorsed on tickets limiting value 
 of baggage must be agreed to. The Ken- 
 sington (1902), 183 U. S. 262. Right 
 views of the foregoing are truly impor- 
 tant. They greatly affect the pleadings 
 and proofs. Kansas R. R. v. Rodebaugh 
 (1887), 38 Kan. 45, 5 Am. St. 715, 720, 
 ext. n. (baggage). 
 
 Posted notices and indorsements do not limit 
 liability as to baggage. Malone, 12 Gray, 
 388, 74 Am. Dec. 598, n., Huff. & W. 
 Cas. 19 (ignorance of offered terms, no 
 contract) ; Webbe. 169 111. 610, 61 Am. 
 St. 207-218, n. 
 
 Stipulations indorsed on telegraph messages 
 are binding in the absence of fraud and 
 gross negligence. Coit, 130 Cal. 657, 80 
 Am. St. 153, n. See Fonseca, 153 Mass. 
 553, 25 Am. St. 660, 12 L. R. A. 340, 
 Huff. & W. 15 (acceptance of conditions 
 indorsed on ticket presumed). 
 
 Discriminating contracts of common carrier. 
 Scofleld v. R. R., sub, Penn. ; New Jersey 
 Co., 6 How. 344, 12 L. ed. 465, n. 
 
 Public policy governs contracts of carriers. 
 R. R. v. Lockwood; Salus, etc. ; Greenh. 
 Pub. Pol. 509-528, R. R. v. Mfg. Co. 
 (1873), 16 Wall. 318, 2 Add. Torts, 665: 
 cases ; Hollister ; Coggs ; notes ; Smith, L. 
 Cas. 
 
 Fraud; gross negligence cannot be contract- 
 ed against. Pactis, etc. ; Nulla pactione, 
 etc. ; Volenti, etc. ; Bro. Max. 695, 696. 
 Employer liable for independent contrac- 
 tor's torts. Sub, Hilliard; Hay; § 18. 
 Hughes' Conts. 
 
DATUM POSTS. 
 
 189 
 
 Leading Cases. — 
 
 355. NEW YORK CENTRAL It. R. CO. 
 
 v. FRALOFF (1879), 100 U. S. 24, 25 
 L. ed. 331, Thomp. L. C. Carr. & Pass. 
 502, Hutch. Carr. 769 : quoted, 1 Am. & 
 Eng. Enc. L. 1042-1045 ; Laws. L. C. 212, 
 Cool. Torts, Bish. Torts, 3 Suth. Dam., 
 Jones, Construct. 254, Ror. R. R., 2 Pars. 
 Conts. 211, 3 L. R. A. 345, n., Schoul. 
 Bailm. Cited, § 303, Hughes' Proc. ; § 
 296, Gr. & Rud. 
 R. R. v. Fraloff stated: Baggage, what is. 
 Fraloff, a Russian countess, as a passen- 
 ger, was carrying in her trunk two hun- 
 dred and seventy-five yards of lace, valued 
 at $75,000. The jury found it worth 
 $10,000. Held, this, as a matter of law, 
 was not baggage. Hutch. Carr. 679-688. 
 R. R. v. Swift stated: Swift, a surgeon in 
 the United States army, delivered to the 
 carrier his surgical instruments and other 
 goods for carriage as baggage, without 
 concealment or fraud, and as such they 
 were received. These consisted of table 
 silverware, $204.50 ; three buffalo robes, 
 two deer robes, hair mattresses and pil- 
 lows, and other household goods and jew- 
 elry, $787.50 ; surgical instruments, $330. 
 These weighed 2,700 pounds. He was 
 traveling as an officer, and under special 
 privileges. The car carrying the goods 
 ■was selected by the commanding ofHcer, 
 and was practically under military con- 
 trol, but the railroad company acquiesced 
 in the situation and insisted on the en- 
 forcement of no regulations or conditions. 
 The car was burned from unknown causes. 
 Held, the carrier was liable. 
 
 Hannibal R. R. v. Swift, 12 Wall. 262, 
 20 L. ed. 425, n. : cited. Cool. Torts, 769, 
 770 ; Hutch. Carr. 685 : cases ; Whart. 
 Neg. 594-613 ; Oakes, 20 Or. 392, 12 L. R. 
 A. 318, 4 Am. R. R. & Corp. Rep. 571- 
 579. n. : cited, Hutch. Carr. 685 : cases ; 
 Hutchings, 25 Ga. 61, 71 Am. Dec. 156- 
 163, n. : cases ; Carpenter, 124 N. Y. 53, 
 11 L. R. A. 759, ext. n., 21 Am. St. 644 ; 
 Kansas City R. R. v. Rodebaugh (baggage, 
 liability for) ; Ry. Co. v. Berry (1895), 
 60 Ark. 433, 46 Am. St. 212, n. ; Wood v. 
 R. R., 98 Me. 989, 99 Am. St. 339-392, 
 ext. n. (liability of common carrier for). 
 Liability of carrier after baggage has 
 reached destination of carriage. Kansas 
 City, 63 Ark. 344, 36 L. R. A. 781, n. 
 •Common carriers; passengers; baggage. 
 What is "baggage" for which carrier is 
 held responsible. Sew York Central R. R. 
 v. Fraloff; Hutch. Carr. 679-690 : cases. 
 Baggage check; what it implies. Hutch. 
 Carr. 718 ; Expressio eorum, etc. Mer- 
 chandise is not. Humphreys v. Perry 
 (1893), 148 U. S. 627, 37 L. ed. 587, n., 
 7 Am. R. R. & Corp. Rep. 686-704, 
 Hutch. Carr. 685 ; Cahill v. Ry. Co. 
 (1863), 13 C. B. (N. S.) 818 (106 E. C. 
 L. R.) ; Mews' E. C. L. 60. 
 Liability for baggage not accompanied by a 
 passenger. Marshall, 126 Mich. 45, 55 
 L. R. A. 650, ext. n. Merchandise carried 
 as baggage. 111. Cent. R. R., — Ky. — , 
 60 L. R. A. 846, n. Baggage; luggage. 
 Under control of passenger in his com- 
 partment, carrier is not liable for. 
 Berpheim v. R. R. (1878), L. R. 3 C. P. D. 
 221, Mews' E. C. L., 2 Pars. Conts. 210, 
 
 Leading Cases.— 355. N. Y. C. R. E. 
 
 Hutch. Carr. 793 ; contra, Coggs : 350. 
 Baggage, generally. Hutch. Carr. 677- 
 717 (excellent resume), 2 Ror. R. R. 988- 
 1003 ; Bish. Torts, 1150-1163, Suth. Dam., 
 1 Am. & Eng. Ency. Law, 1042-1045, 2 
 Kent, 601, Schoul. Bailm. 
 356. CALYE'S CASE (1634), 8 Coke 32, 
 
 1 Smith, L. C. 248-257, ext. n., 8th ed., 
 11th ed., 20 Vt. 320, 62 Am. Dec. 577, 
 586, 590, 2 R. R. 593, 13 Rul. Cas. 118, 
 119, 24 Mo. Ap. 386, 2 Kent, 593, 2 Pars. 
 Conts., Chit., Cool. Torts, Bish., 2 Add. 
 Torts, 684, 69 L. R. A. 658, Bro. Max. 
 708, Whart. Neg., 2 Kent, q. v., 1 Kin- 
 kead, Torts, 120-123, Schoul. Bailm., 
 Laws. Bailm. ; Bennett v. Mellor, post; 
 
 2 Am. & Eng. Cas. 16. 
 Cited, § 284, Hughes' Proc. 
 
 Calye's stated: Innkeepers. A guest arriv- 
 ing at an inn alighted from his horse and 
 told the landlord to send it out to pasture. 
 This was done at the guest's special in- 
 stance and request, and the horse was not 
 afterward found. The landlord was sued, 
 and defended upon the ground that he was 
 not liable under the circumstances, and 
 so the court held. Otherwise, had the 
 horse been sent to pasture without the 
 guest's authority. 
 
 •Berkshire Woolen Co. v. Proctor, 7 
 Cush. 417, Cool. Torts, Bish., Pars. Conts., 
 Chit., 2 Kent, 596 (liability of innkeeper 
 for guest's luggage) ; Coskery, 83 Ga. 696, 
 6 L. R. A. 483, Cool. ; Glenn, 93 Ala. 342, 
 12 L. R. A. 382, n. (liability as bailee) ; 
 Cunningham, 42 W. Va. 671, 57 Am. St. 
 878, n., 35 L. R. A. 850, McDaniels, 26 
 Vt. 316, 62 Am. Dec. 574-592, ext. n. : 
 cases (instructive case). 
 
 Relation of landlord and guest must exist. 
 Bennett v. Mellor (1793), 5 Term Rep. 
 (D. & B.) 273, 2 R. R. 593, 13 Rul. Cas. 
 118 : stated, Calye's ; Strauss Co., L. R. 
 
 12 Q. B. D. 27, 49, 13 Rul. Cas. 121. 
 Liens of innkeepers. Singer Mfg. Co., supra; 
 
 Elliott, 105 Mich. 506, 53 Am. St. 461, n. ; 
 
 13 Rul. Cas. 118-140 : eases ; Schoul. 
 Bailm. ; Werthimer : 138 Wash. 409, 107 
 Am. St. 864-879, ext. n. 
 
 Lien extends to goods of third person. Thre- 
 fall v. Borwick (1875), L. R. 10 Q. B. 
 210-212, 13 Rul. Cas. 136 ; Robins, 2 Q. 
 B. Div. 501-510, 13 Rul. Cas. 138, 21 L. 
 R. A. 230, 24 Mo. Ap. 386. 
 
 Does not extend to goods of third persons 
 under a statute of broad terms. McClain, 
 11 S. Dak. 227, 49 L. R. A. 610, n. See 
 Taylor : 219 : cases. 
 
 Purchasing liquor at an inn constitutes one 
 a guest. McDonald, 5 Barb. 560, citing 
 Bennett v. Mellor, supra; or beer and 
 cigars. Fairchild, 36 Barb. 153 : cited, 13 
 Rul. Cas. 130 : cases. 
 
 Liability of innkeepers for care, dili- 
 gence and good faith. Carhart, 114 Ga. 
 632, 88 Am. St. 45, n. ; Johnson, 89 Minn. 
 310, 99 Am. St. 571-602, ext. n. (liability 
 for loss of property). 
 
 Liability for goods. Baehr v. Downey, 133 
 Mich. 163, 103 Am. St. 444, n., 2 Am. & 
 Eng. Cas. 16. 
 
 Bailments; innkeepers; rights, duties and 
 liens of. Coggs; Berkshire; Fay, 93 Cal. 
 253, 27 Am. St. 198, n. 
 
 Livery-stable keepers and innkeepers. Whart. 
 Neg. 675-693. Hotels and boarding- 
 houses. Bish. Torts. 1164-1183. 
 
 What is delivery to. Bradley, 66 N. J. L. 
 
190 
 
 DATUM POSTS. 
 
 Leading Cases. — 356. Calye's Case. 
 
 654, 55 L. R. A. 208 (citing Calye's 
 Case). 
 
 Innkeepers bound to receive guest if possi- 
 ble. 1 Bish. C. L. 572. See S. v. Steele, 
 106 N. C. 766, 19 Am. St. 573, n. ; Cool. 
 L. Torts. 266. Innkeepers. 2 Kent, 592- 
 597. 
 
 Who are "guests" and "boarders." Singer 
 Manuf. Co., 52 Minn. 516, 38 Am. St. 568, 
 n., 21 L. R. A. 229, n. ; Churchill, 96 Cal. 
 490, 35 Am. St. 199, n., 13 Rul. Cas. 130 ; 
 Lynar, 36 U. C. Q. B. 231 : stated, 62 
 Am. Dec. 590 ; Murray, 9 Colo. 482, 59 
 Am. Rep. 152; Amey : 68 N. H. 447, 39 
 L. R. A. 760 (loss of a hat at a banquet). 
 Tulare: 112 Tenn. 215, 105 Am. St. 940, 
 ext. n. ; Schoul. Bail. 276. 
 
 Protection due to guests. An innkeeper guar- 
 antees the good conduct of all members of 
 his household and of his employees and 
 servants. Cunningham, supra. He is a 
 policeman, so to speak. Craker. Drunken 
 or negligent conduct of guest does not 
 excuse landlord from the acts of his ser- 
 vants. Cunningham; Schoul. Bail. 323. 
 
 Personal protection must be extended. Weeks, 
 101 Tenn. 495, 70 Am. 693, n. ; Craker, 
 post : cases : Rahmel ; Claney, — Neb. 
 — , 69 L. R. A. 642, n., 131 Fed. 161. 
 Saloon-keepers must protect guests. Sub, 
 Scott v. Shepherd. Proof of loss:- Res 
 ipsa loquitur. Murray, supra: 2 Kent. 
 581, Schoul. Bailm. 192 ; Murray, 2 Daly, 
 102. The fact of loss proved makes a 
 prima facie case : Res ipsa loquitur; Kear- 
 ney : 211. See Pullman, 3 Colo. App. 540 
 (prima facie case ; destroyed or canceled 
 if contradicted by one witness). 
 
 357. KANSAS CITY, M. & B. B. V. 
 RILEY (1891), 68 Miss. 765, 4 Am. R. 
 R. & Corp. Rep. 654-659, n., 24 Am. St. 
 309, 13 L. R. A. 39. 
 
 Carriers; refusing coupon for return trip; 
 expulsion of passenger. When one con- 
 ductor returns the wrong coupon, and a 
 second conductor refuses that coupon for 
 passage, and, after an explanation, ex- 
 pels the passenger, the carrier is liable. 
 Sloane, 111 Cal. 668, 32 L. R. A. 193, 
 n. ; Hot Springs R. R., 65 Ark. 177, 67 
 Am. St. 913, n. 
 
 Where there are two routes a mistake as to 
 one of those from misdirection of the 
 agent will not justify ejection. 111. R. R. 
 —Miss. — , 64 L. R. A. 283. Ejection of pas- 
 senger; rights of carriers. K. v. R. ; 
 Hutch. Carr. 495-634. Place for ejection. 
 Burch, 3 App. D. C. 346, 26 L. R. A. 
 129-135, ext. n. Exposure of drunken 
 passenger from. Roseman, 112 N. C. 709, 
 19 L. R. A. 327-330, n., 34 Am. St. 524 ; 
 Louisville & N. R. R., 108 Ala. 62, 31 L. 
 R. A. 372, n. 
 
 For non-payment of fare. Wardwell, 46 
 Minn. 514, 13 L. R. A. 596, n. ; MacKay, 
 34 W. Va. 65, 9 L. R. A. 132 ; St. Louis 
 R. R., 69 Ark. 186, 53 L. R. A. 220, n. ; 
 Peabody, 21 Or. 121, 12 L. R. A. 823, n. ; 
 South Fla. R., 25 Fla. 40, 3 L. R. A. 733 
 (need not allege compliance with rules, 
 and intention to comply). 
 
 Tickets with conditions. These must be com- 
 plied with ; non-observance of, is a ground 
 for expulsion. Edwards, 81 Mich. 364, 3 
 Am. R. R. & Corp. Rep. 166, n. ; Penn. 
 R. R., 55 N. J. L. 551, 39 Am. St. 654, 
 n., 22 L. R. A. 251 ; Robinson, 105 Cal. 
 
 Leading Cases. — 357. Kan. City. 
 
 541, 28 L. R. A. 773, n. (stop-over priv- 
 ileges). 
 
 Assignability of tickets. Nichols, 23 Or. 123, 
 18 L. R. A. 55-60, n., 37 Am. St. 664, n. ; 
 Quimby, 150 Mass. 365, 5 L. R. A. 846 
 (railroad may exonerate itself by condi- 
 tions) ; Trezona, 107 la. 22, 43 L. R. A. 
 136 ; Louisville & N. R. R. v. Turner, 100 
 Tenn. 213, 43 L. R. A. 140. 
 
 Regulations by carriers. Gray, 11 Fed. 687, 
 ext. n. ; Dickerman, 44 Minn. 433, 3 Am. 
 R. R. & Corp. Rep. 377, n. ; 1 Mor. Corp. 
 497, 2 Cook, Stock. 700, n., 2 Kent, 393- 
 296, 16 Rul. Cas. 667-680, n. ; McGowen, 
 41 La. 732, 5 L. R. A. 817, n. 
 
 Damages for expulsion. Hall, 15 Fed. 95, 
 n. ; Lucas, 98 Mich. 1, 39 Am. St. 517, n. 
 (exemplary damages, when allowed) ; 
 note, 37 Am. St. 357 ; Sloane, supra. De- 
 tention for non-payment of fare. Note, 
 15 Fed. 94 ; Allen : 167, sub, McManus ; 
 Palmer: 92 Me. 399, 44 L. R. A. 673. 
 Resisting expulsion. 15 Fed. 89. Trav- 
 eling beyond distance paid for. 17 Ir. L. 
 T. 599. 
 
 Assault and battery. Profane and indecent 
 language ground for expulsion. P. v. Caryl 
 (1857), 3 Park. C. C. 326, 5 Crim. Def. 
 813. 
 
 Protection of passengers a duty. Craker; 
 N. J. Steamship, 121 U. S. 637, 40 L. R. 
 A. 483. Fewings, 88 Minn. 336, 97 Am. 
 St. 519 (from mobs and strikers). Car- 
 rier liable for bite of another passenger's, 
 dog. 41 Wash. 618, 111 Am. St. 1038- 
 1039, n. 
 
 Reasonable regulations of company must be 
 obeyed. P. v. Caryl, supra; Vandusan, 97 
 Mich. 439, 37 Am. St. 354 (must produce 
 ticket) : Sternburg, 36 Neb. 307, 19 L. R. 
 A. 570, n. 
 
 Failing to produce check and to rea- 
 sonably comply with request for identifica- 
 tion, is ground for expulsion. Lucas R. 
 R., supra. 
 
 Coupon tickets. For continuous passage, 
 unless expressly so stipulated, stop-over 
 privileges are allowed at the end of each, 
 connecting line. Nichols v. S. P. ,Co., 23 
 Or. 123, 37 Am. St. 664, n., 18 L. R. A. 
 55-60, n. Expressio eorum, etc. Objec- 
 tions to a ticket on one ground exclude all 
 others. Nichols, supra. Expressio unius y 
 etc. Declarations of agent bind principal, 
 if within res gestae. Nichols, supra; 37 
 Am. St. 671, n. ; P. v. Vernon ; Res inter 
 alios, etc. 
 
 Face of the ticket is all conductor can 
 look to ; statements of passengers cannot 
 prevail over. Poulin, 52 Fed. 197, 17 
 L. R. A. 800, n. See Cherry. Invalid 
 transfers ; duty of holder. Little Rock 
 Street R. R. (1906), — Ark. — 95, S. W., 
 7 L. R. A. N. S. 97. 
 
 Oral evidence may explain ticket. Ames v- 
 So. P. R. R., 141 Cal. 728, 99 Am. St. 
 98-107, n. 
 
 Seat for passenger is not essential before de- 
 mand for his ticket. Passenger owes for 
 ride without a seat, and after obtaining 
 one, he must pay for the entire ride, or be 
 expelled. Davis, 53 Mo. 317, 14 Am. 
 Rep. 457-460 ; Manning, 95 Ala. 392, 36 
 Am. St. 225, n., 16 L. R. A. 55;- Louis- 
 ville R. R., 69 Miss. 421, 22 L. R. A. 
 259 (must either pay or leave car). And 
 
DATUM POSTS. 
 
 191 
 
 Leading Cases. — 357. Kan. City. 
 
 regular car accommodation, if possible. 
 Bait. R. R., 81 Md. 400, 31 L. R. A. 313, 
 ext. n. Railroad employees as passengers. 
 Tex. R. R., 67 Fed. 524, 31 L. R. A. 321, 
 ext. n. 
 
 Leaving carriage without notice before end 
 of journey. Finnegan, 48 Minn. 378, 15 
 L. R. A. 399, n. One leaving a street 
 car without advising the person in charge 
 of it of his intention to return loses his 
 status as a passenger. Central Ry., 69 
 Md. 257, 9 Am. St. 425. 
 
 Getting on and off trains. Carr, 98 Gal. 
 366, 21 L. R. A. 354-365, ext. n. Duty 
 of carrier to assist. Little Rock, 55 Ark. 
 428, 29 Am. St. 48, 15 L. R. A. 434, n. 
 
 Duty to infants and other passengers; regu- 
 lation of trains ; starting, stopping, call- 
 ing out stations, and stopping at these. 
 Hemmingway, 72 Wis. 42, 7 Am. St. 823, 
 ext. n. 
 
 Rejection of certain passengers; carrier's 
 right to. 111. Cent. R. R. 85 Miss. 344, 
 107 Am. St. 293-303, ext., n. 
 
 Gamblers; may refuse to carry. Thurston 
 v. U. P. R. R. (1887), 4 Dill. 321. 
 
 Sick passengers, if accepted, must be aided 
 and Attended. Weightman, 70 Miss. 563, 
 35 Am. St. 660, 19 L. R. A. 671, n. ; 
 Croom, 52 Minn. 296, 38 Am. St. 557, 18 
 L. R. A. 602, n. ; Foss, 66 N. H. 256, 
 49 Am. St. 607, 11 L. R. A. 367; R. R: 
 52 Ohio, 558, 49 Am. St. 745, 31 L. R. A. 
 261, ext. n. 
 
 Passenger and carrier; when the relation be- 
 gins; carrier's duty. Hansley, 115 N. C. 
 602, 44 Am. St. 474, n. ; 111. Cent. R. R., 
 168 111. 115, 61 Am. St. 68-104, ext. n. 
 (who are passengers). 
 
 Extra fare for payment on train. Phetti- 
 place, 84 Wis. 412, 20 L. R. A. 483-487, 
 n. ; Johnson, 108 Ga. 496, 46 L. R. A. 
 502 : cases. Announcement of stations by 
 carriers. Texas R. R., 82 Tex. 302, 15 
 L. R. A. 347, n. Discriminations. Schor 
 field v. R. R., sub, Penn. 
 
 Colored passengers; separate accommoda- 
 tions for. Plessy, 45 La. Ann. 80, 18 
 L. R. A. 639, 7 Am. R. R. & Corp. Rep. 
 383-394, ext. n. ; Chilton, 114 Mo. 88, 19 
 L. R. A. 269. 
 
 Right of passenger to pay fare after train 
 begins to stop for purpose of ejecting him. 
 Ga. R. R., 88 Ga. 529, 16 L. R. A. 53, n. 
 Refusal to pay for distance already ridden 
 without ticket will justify permanent ejec- 
 tion. Manning, 95 Ala. 392, 16 L. R. A. 
 555, n., 36 Am. St. 225. 
 Negligent exposure of person; arm out of 
 window. The contract is to carry in, not 
 out of car. Richmond R. R., 88 Va. 958, 
 16 L. R. A. 91, n. Duty of carrier in 
 stopping and starting trains. Highland 
 R. R., 92 Ala. 291, 13 L. R. A. 95, n. 
 Sleeping-car company liable for misinform- 
 ing passengers as to place to get off. Pull., 
 79 Tex. 468, 13 L. R. A. 215, n. Pass- 
 ing from one car to another when train 
 is in motion. McAfee, 9 D. C. App. 36, 
 34 L. R. A. 720, ext. n. Volenti, etc. 
 
 Leading Cases.— 357. Kan. City. 
 
 Adult in charge of minor child is liable 
 for its fare, and may be ejected upon re- 
 fusal to pay its fare, upon tender of fare 
 paid or a stop-over to adult for himself. 
 Lake S., 55 Ohio St. 589, 38 L. R. A. 
 140, ext. n. 
 
 Infant procuring commutation ticket by 
 means of fraud can only recover as a 
 trespasser law. Fitzmaurice, • — Mass. — , 
 6 L. R. A. N. S. 1146. 
 
 Minimizing damages. Passenger should pay 
 fare, if possible, to lessen damages for 
 expulsion. Springer, 15 Wash. 660, 43 
 L. R. A. 706, ext. n. See Cherry. 
 
 Ticket as a contract. Boyd, 103 Ga. 828, 
 68 Am. St. 146. Cherry. 
 
 Limitation as to time. Only statute of 
 limitations bars a full-fare ticket ; and a 
 limitation of time expressed on side is of 
 no avail unless expressly assented to. 
 Boyd, supra. 84 Am. St. 397. A rail- 
 road ticket does not express all the con- 
 tract. Boyd. Expressio eorum, etc. 
 
 Thurston v. V. P. R. R. (1877), 4 Dill. 321, 
 Thomp. L. C. Carr. Pass. 10, Bish. Torts, 
 1061, Hutch. Carr. 540-547. 
 
 Thurston stated: T. was a gambler and 
 bought a ticket, but the railroad com- 
 pany refused to carry him, for the reason 
 that he gambled with the passengers and 
 won their money. T. sued, but all he 
 could recover was $1.74, the price of the 
 ticket. 
 
 Common carrier; whom carrier may refuse 
 to carry. Pearson ; Hutch. Carr. 541. 
 
 Carrier bound to accept all persons. Pear- 
 son, 4 Wall. 605, 13 L. ed. 447, n. (ex- 
 ceptions to general rule) ; Hutch. Carr. 
 541. 
 
 Ejection. Expulsion of passenger from car 
 while car is in motion is negligence. Chi- 
 cago Ry., 33 111. App. 455, 2 R. R. & 
 Corp. Rep. 616-619, n., 33 L. ed. (U. 
 S.) 460. Ejection of passenger, grounds 
 for. Notes, 33 L. ed. (U. S.) 460 ; K. C. 
 R. R. 
 
 Carrier owes the passenger protection; 
 Craker. And is analogous to that which 
 the innkeeper owes a guest. Calye's Case. 
 Common carriers. Schoul. Bailm. Hutch. 
 Carr. 
 358. GOOD V. ELLIOTT (1790), 3 Term, 
 Rep. (D. & B.) 693, 1 R. R. 803, 11 Rul. 
 Cas. 389-407, n., 1 Page, 9, 449, Chit. 
 Conts., Pars., Bish., Ham., Whart., Laws., 
 Sto., Clark, Hughes' Conts. ; cited, 2 
 Rand. Com. Pap. 510, 513, 1 Danl. 195, 
 Gr. Pub. Pol. 227. Cited, §§ 158, 299, 
 Hughes' Proc. 
 Wagers. Wagers are valid at common law 
 if not against public policy, or indecent, 
 or such as to injure the feelings of third 
 persons. 
 Good ; Bunn ; DaCosta ; Ditchburn ; Diggle ; 
 Evans ; Holman ; Eddy Combinations 98. 
 Cothran v. Ellis. 
 Are generally void. Irwin v. Williar (1883), 
 110 U. S. 499, 28 L. ed. 225, n. ; Bish. 
 Conts. 531, Bish. Stat. Crimes, 848 ; Shaff- 
 ner, 133 111. 410, 23 Am. St. 624, n. 
 (horse racing illegal), 81 Am. St. 275, n. 
 Bernard v. Taylor (1893), 23 Oreg. 416, 
 
192 
 
 DATUM POSTS. 
 
 Leading Cases. — 358. Good. 
 
 18 L. R. A. 859-864, n., 37 Am. St. 693- 
 704, ext. n. ; Huff. & W., Conts. 407, 
 stating Good ; Bunn ; DaCosta, and other 
 cases. 
 
 Wagers; right to withdraw from. Diggle: 
 371 ; Spring Co. ; 366 Pabst Co., 80 
 Minn. 473, 81 Am. St. 275, n. Grain 
 options ; when legal. Irwin,, supra, n., 
 Bish. Conts. 534; Sprauge, 26 Neb. 326, 
 3 L. R. A. 679, n. Gambling contracts, 
 generally. Gr. Pub. Pol. 222-237, 2 
 Chit. Conts. 1006-1010. 
 
 Gaming, the law of the offense. Bish. 
 Stat. Crimes, 844-881 ; 4 Crim. Def. 624- 
 749 ; 9 Bneyo. PI. & Pr. 765-804. Betting 
 on elections. Bish. Stat. Crimes, 931-949. 
 
 Lotteries. Bish. Stat. Crimes, 950-966 ; Yel- 
 lowstone, 88 Ala. 196, 16 Am. St. 38-48, 
 ext. n., 7 L. R. A. 599 ; Harvey, 150 
 Mass. 1, 5 L. R. A. 200, n. ; First Nat. 
 Bk., 80 la. 11, 8 L. R. A. 275, n. 
 
 Generally. 1 Chit. Conts. 735-738, 1 Add. 
 Conts. 276-280. Betting; wagers; gam- 
 ing and wagering. 11 Rul. Cas. 376- 
 407, n. Aiding and abetting. Bish. Conts. 
 535 ; Pearce : 368. 
 
 Option contracts. Cobb, 15 Fed. 774, 12 
 Am. Law. Reg. (N. S.) 600-619, ext. n. : 
 Crawford, 92 Mo. 498, 1 Am. St. 745-766, 
 ext. n. 
 
 359. DITCHBUBN V. QOI.DSMITH 
 (1815), 4 Camp. (Bng.) 152; 2 Pars. 
 Conts. 880, 1 Chit. 737, Whart. 449, Laws. 
 284, Sto. 698, Clark, 406, Hughes' Conts., 
 2 Rand. Com. Pap. 510, Gr. Pub. Pol. 227, 
 Mews'. 
 
 Ditchburn stated: Indecent wagers are void 
 e. g., as to whether an unmarried woman 
 will have a child a certain day. 
 
 360. EVANS v. JONES (1839), 5 Mees. 
 & Wels. 77, 2 H. & H. 67, Gr. Pub. Pol. 
 227, 1 Chit. Conts. 737, 738, Smith, 265, 
 Whart. 450, Laws. 284, Clark, 406, Sto. 
 696, 697, Hughes' Conts., 7 Mews' B. C. L. 
 
 Evans stated: wagers. A bet that one will 
 be convicted of a criminal charge is not 
 enforceable because it gave one party 
 an interest in obstructing or corrupting 
 the fountains of justice. 
 
 Construction makes contracts to accord 
 with the usefulness, respectability, moral- 
 ity and perpetuity of government. Trist : 
 214. 
 
 361. DA COSTA (D£) v. JONES (1778), 
 2 Cowp. 729, Gt. Opin. Gt. Judges, 107, 
 12 Rul. Cas. 376-385, n. ; 1 Page, 449, 
 
 2 Rand. Com. Pap. 510, Danl., 195, Gr. 
 Pub. Pol. 227, Pars. Conts., Chit., Bish., 
 Ham., Whart., Laws., Sto., Hughes' Conts., 
 1 Pars. N., 2 Pom. Eq. 929, 1 Sto. Bq. 
 294, 1 Wh. Bv. 283, Mews' B. C. L. 
 
 Wagers. Wagers, if indecent, cannot be re- 
 covered, e. g., a wager as to the sex of a 
 person. 
 
 Gaming and wagering. 12 Rul. Cas. 
 376-407, ext. n. 
 
 362. BUNN v. BIKER (1809), 4 Johns. 
 426, 4 Am. Dec. 292-300, n. ; Gr. Pub. 
 Pol. 391, Pars. Conts., Chit., Whart., Sto., 
 Clark, Laws., 1 Page, 449, Hughes' Conts., 
 
 3 Kent, 277. Wagers. Wagers on an elec- 
 tion void at common law. 
 
 Bunn ; Bvans ; Good ; Brogden ; Da 
 -Costa ; Holman. But otherwise as to 
 wagers generally. Good. 
 
 Leading Cases. — 362. Bunn. 
 
 One may withdraw from a bet before 
 the money Is paid over. Diggle : 371. 
 Wagers valid in England but otherwise in 
 Massachusetts. Love, 114 Mass. 80, Huff. 
 & W. Conts. 324. 
 
 363. HOLMAN V. JOHNSON (1775) 1 
 Cowp. 341, Finch, Cases, 617, Suth. Stat. 
 12, Gt. Opin. Gt. Judges, 97, Benj. Sales, 
 2 Mech. Sales, 995, 997, Gr. Pub. Pol. 127, 
 587, End. Stat. 454, 2 Kent. 467, Mews' 
 E. C. L., Cransom, 107 Mass. 439, 9 Am. 
 Rep. 45, n. ; Graves, 156 Mass. 211, 32 
 Am. St. 447, 15 L. R. A. 834; Huffc. & 
 W. Conts. 391 ; Nester, 161 Pa. 437, 24 
 L. R. A. 247, 10 Am. R. R. & Corp. Rep. 
 205 ; Mech., Sto., Whart. Ag., Pars., Bish., 
 Chit., Beach, 1 Page, 507, 532 ; 9 Cyc. 
 546, Add., Keener, Conts. 849, Smith 19, 
 Whart., Sto., Clark, Laws. 346, Ham. 233, 
 256, 260, Beach, Hughes' Conts., Williston, 
 Conts. 229, Sto. Eq., Pom. Eq., Pars. Part., 
 Lind. Part., Rand. Com. Paper, 2 Best, 
 Ev. 546, Suth. Stat. 12, Sedg. Stat. 70-84 
 (contracts in violation of statutes) ; Bro. 
 Max. 739. 
 
 Cited, p. 39; §§ 4, 5, 133, 147, 154, 158, 
 326, 333, Hughes' Proc. 
 
 Cited, §§ 280, 285, 292, 307, Gr. & Rud. 
 
 Holman stated: H. was a tea merchant do- 
 ing business In Dunkirk, France,, where 
 he sold and delivered to J. tea which the 
 buyer intended to smuggle into England,, 
 and this H. knew. Afterward H. sued for 
 the price and J. defended upon the ground 
 that the contract was illegal : In pari de- 
 licto potior est conditio defendentis. Held, 
 H. could recover ; that the sale of the tea. 
 was a positive right — was not an act 
 malum in se, but only mala prohibita. 
 Had the seller himself undertaken to have 
 delivered the goods in England, the de- 
 fense of illegality would have been perfect. 
 Graves ; McKinnell, sub, Pearce, 368, 
 Tracy v. Talmage (1856), 14 N. Y. 162, 
 67 Am. Dec. 132-154, n., Cummings, Cas. 
 Corp. 67, Ans. Conts., Bish., Bigl. Fr. 169 ; 
 cited, G. Pub. Pol. 17, 592, 596, Pom. Bq. 
 
 Knowledge of seller that buyer is buying a 
 thing to put to unlawful use will not 
 render the vendor a particeps criminis. 
 Anheuser, 44 Minn. 318, 20 Am. St. 580, n., 
 9 L. R. A. 566, 2 Benj. Sales, 789 ; Graves, 
 supra. See Pearce ; Smith, Conts. 18, n., 
 251, citing Bartlett v. Tinor ; 1 Kent, 467, 
 Suth. Stat. 335 ; Parsons v. Trash, 7 
 Gray, 473, 66 Am. Dec. 502-514, ext. n. 
 (contract contrary to public policy of 
 forum unenforceable — contract for slav- 
 ery) ; Garrett, 113 Mo. 330, 35 Am. St. 
 713, n. (equity will not aid) ; Levy, 18 
 Colo. 532, 36 Am. St. 303, n. 
 
 Contract mala prohibita where statute pre- 
 scribes a penalty. Generally only this can 
 be enforced. It does not nullify the con- 
 tract. Ans. Conts. 171, 172 : contra cases. 
 Contracts in violation of statutes. Brooks, 
 50 N. J. Eq. 761, 35 Am. St. 793, n., 
 21 L. R. A. 617, End. Stat. 449-474. 
 Bartlett v. Vinor (an old and widely cited 
 case). Smith, Conts. 18, n., 251. School 
 teachers cannot be hired or paid in viola- 
 tion of a statute ; if it requires that the 
 teachers have a certificate, this must be 
 
DATUM POSTS. 
 
 193 
 
 Leading Cases. — 363. Holman. . 
 
 obtained. Hosmer, 4 N. Dak. 197, 50 
 Am. St. 639, n. 
 Illegal contracts are non-enforceable. Bartle, 
 4 Pet. 184, 7 L. ed. 825, n., Howell, 3 Ga. 
 176, 46 Am. Deo. 415, n. (this is a very 
 instructive case, with extended citations) ; 
 1 Danl. Nego. Insts. 195 ; Parsons, supra; 
 Tracy; Nellis v. Clark (1838), 20 Wend. 
 24 ; cited, Gr. Pub. Pol. 17, 30, 128, 163 ; 
 sub, S. v. Nebraska Distilling Co. ; Wood- 
 son : 85, Miss. 171, 167 Am. St. 275-290 : 
 cases ; 1 Page, 517 ; Hobbs : 195, Mo. 
 693, 113 Am. St. 709-736, ext. n. 
 Policy forbids enforcement, of illegal contracts. 
 Armstrong v. Toler (1826) 11 Wheat. 258, 
 6 L. ed. 468, n. ; Huffc. Ag. 27 (legality 
 of subject), Smith, Conts. 259-260; Salus 
 populi, etc. ; Bartle, supra; Illegal con- 
 tracts. In pari delicto, etc. ; Goodrich, 
 144 111. 422, 32 Am. St. 459, n., 19 L. 
 R. A. 371, End. Stat. 449-474, Huff. & 
 W. Conts. 315-411. 
 
 Statute may invalidate commercial pa- 
 per even in hands of innocent holder. 
 Irwin, 26 Ind. App. 383, 84 Am. St. 297 ; 
 Pritchett, 26 Ind. App. 56, 84 St. 274, n. 
 Degrees of delictum are sometimes consid- 
 ered and recovery is allowed. In jure non 
 remota, etc. Brooks v. Martin : 370 ; De 
 Leon, 49 Tex. 88, 30 Am. Rep. 101 ; cited, 
 Gr. Pub. Pol. 109, Bish. Conts. 489 ; Buck, 
 26 Vt. 184, 62 Am. Dec. 564 : stated, Gr. 
 Pub. Pol. 530 ; Evans, 24 Pa. 62, 62 Am. 
 Dec. 359: stated, Gr. Pub. Pol. 162, 164, 
 Bro. Max. 728. 
 Undue influence inducing the illegal contract 
 will be relieved against. Hess, 77 Mich. 
 598, 18 Am. St. 421; n. ; Harper, 85 Ky. 
 160, 7 Am. St. 583, n. ; Diggle; In pari 
 delicto, etc. 
 Lobbying contracts. Tool Co. : 365 ; Spring 
 
 Co. : 367 ; Trist : 214. 
 Public officers; contracts concerning appoint- 
 ments, etc. Tool Co. ; Mech. Pub. Off. 
 351. 
 Champerty; maintenance; barratry. Thall- 
 himer v. Brinckerhoff, 3 Cow. (N. Y.) 
 623, 20 Johns. 380, 15 Am. Dec. 308, ext. 
 n. ; S. v. Chitty ; Ackert, 131 Mass. 436, 
 Huff. & W. Conts. 354 (strict rule ap- 
 plied; contra, cases in note) ; 83 Am. 
 St. 157-180 (contracts with attorneys). 
 See Champerty. Damages arising from 
 illegal transaction non-recoverable. 1 Suth. 
 Dam. 5. 
 Contract in restraint of marriage. Lowe v. 
 Peers; Maddox, 11 Gratt. (Va.) 804, 
 Perry, Trusts, Crawford, Mech. Ag. 36, 
 Chit. Conts., 3 Add. 1349. 
 Divorce; contracts facilitating, are void. 
 Sayles, 21 N. H. 312, 53 Am. Dec. 208, 
 n., Gr. Pub. Pol. 491 ; Greene, 2 Gray, 
 361, 61 Am. Dec. 454, n. 
 Marriage contracts founded on promise of 
 prostitution, void. Hanks, 54 Cal. 51, 
 Ans. Conts. 187, Gr. Pub. Pol. 201, 2 
 Chit. Conts. 794. See Hood : 141. 
 One cannot contract for illegality or fraud. 
 In pari, etc. : cases ; Pacta, etc. ; Jus 
 publicum privatorum, etc. ; 180 U. S. 476 ; 
 Pacta nulla, etc. § 18, Hughes' Conts. 
 Illegal defenses need not be pleaded; in any 
 
 13 
 
 Leading Cases. — 363. Holman. 
 
 way they appear the court will take notice 
 of them. Here is a notable exception in 
 the law of pleadings. Field, 84, § 5, 5b, 
 Hughes' Proc. 
 
 364. GULICK v. WARD (1828), 10 N. J. 
 Law, 87, 18 Am. Dec. 389-404, n., 2 
 Rand. Com. Pap. 498, Gr. Pub. Pol., Chit. 
 Conts., Bish., Whart. 402, Laws., Ham., 
 1 Page, 517, Hughes' Conts., 2 Pom. Eq. 
 934. Cited, § 158, Hughes' Proc. 
 
 Qulick stated: Stifling competition at auc- 
 tions illegal. W. contracted and obligated 
 to pay G. $1,000, if he would not make 
 competitive bids to secure a mail contract 
 of the United States. To recover that 
 amount G. sued W. & B. Held, he could 
 not recover; that contracts to stifle bid- 
 ding at auction and other competition 
 are void. Gr. Pub. Pol. 178-196 ; 
 Kennedy, 371, 5 Harr. (Del.) 458; 
 Swan, 20 Cal. 182. See Ray, 100 111. 
 246 ; Gulick, 41, Neb. 706, 43 Am. 
 St. 720, n. ; Herndon, 38 S. C. 357, 20 
 L. R. A. 545-555, ext. n. ; Woodruff, 175 
 Pa. 302, 52 Am. St. 845, n. (judicial 
 sales) ; Veazie, 8 How. 134 ; cited, Chit. 
 Conts. Puffers. Flannery, 180 Pa. 338, 
 57 Am. St. 648, n. ; McMillan, 110 Ga. 
 72, 78 Am. St. 93, n. : cases. Chilling 
 bidding, 139 Mass. 51, 111 Am. St. 401. 
 
 Illegal contracts; contracts to prevent com- 
 petition. Holman : 363 ; In pari delicto, 
 etc. See Auctions ; 1 Chit. Conts. 409 : 
 cases ; 3 Story, Conts. 624 ; Reynolds, 24 
 Tex. 174 ; Smith, 12 Vesey, 577, 8 R. R. 
 359, 33 Eng. Rep. 180, Mews' E. C. L. ; 
 
 2 Kent, 538, 539; 2 Cool. Tax. 941-945 
 (competition at the sale). 
 
 365. TOOK CO. (PROVIDENCE TOOl 
 CO.) v. NORRIS (1865), 2 Wall. 45, 17 
 L. ed. 868, 33 L. R. A. 167, Beach, Conts., 
 Ans., Ham., Laws., Clark, Sto., Whart.," 
 Hughes, Laws., 115 N. C. 457, 44 Am. St. 
 464, Whart. Ag. 345, Mech., Huffc, Tiff., 
 Reinhard, Cool. Const. Lim. 166, Mech. 
 Pub. Off. 351, 2 Rand. Com. Pap. 498, Gr. 
 Pub. Pol. 359, 364, 365, 2 Pom. Eq. 935, 
 
 3 Kent, 454. 
 
 Tool Co. case stated: Norris sued the Tool 
 Co. to recover for services in influencing- 
 government officials to buy war supplies, 
 of the company. Held, he could not re- 
 cover. Trist : 214 ; Oscanyan : 41. Hazle- 
 ton v. Sheckells. 
 
 Agent cannot recover compensation if agency 
 was unlawful. Tool Co. ; Mech. Ag. 18-49, 
 645 ; In pari delicto, etc. ; Houlton, 93 
 Wis. 393, 33 L. R. A. 166; stated, Tool 
 Co. ; Oscanyan : cases. 
 
 Illegal contracts. Agreements to influence- 
 officials are void. Holman ; Trist ; Spur- 
 geon, 6 Ohio, 442, 27 Am. Dec. 266 : 
 O'Donnell, 5 Ala. 467, 39 Am. Dec. 336 ; 
 Mills, 40 N. Y. 543, 100 Am. Dec. 535. 
 
 366. SPRING CO. V. KHOWLTOIT 
 (1880), 103 U. S. 49, 26 L. ed. 347; 
 Keener, Quasi Conts. 259, 264, 265, Beach, 
 q. v., Laws. 54, Whart. 353, 354, Hughes' 
 Conts., 2 Benj. Sales, 787, n., 2 Mech. 
 Sales, 999. § 158, Hughes' Proc. 
 
 Spring Co. stated: The company undertook 
 to increase its stock $200,000, every old 
 stockholder to have a full paid-up share 
 
194 
 
 DATUM POSTS. 
 
 Leading Cases. — 366. Spring Go. 
 
 of $100 for $80 (this was in violation 
 of the statute of New York), and which, 
 if not paid, then all payments made there- 
 on to be forfeited, to which understanding 
 K. was a party, and who took more of the 
 stock than he could pay for. He could 
 only pay 20 per cent of his undertaking. 
 Afterward, the company abandoned the 
 increase scheme and refunded all sums 
 paid, but not the forfeited amounts paid. 
 K. died and his representatives sued for 
 the payments K. made and forfeited. The 
 company defended upon the ground that 
 the contract was illegal ; that the whole 
 undertaking was in violation of a public 
 law. In pari delicto, etc., was their de- 
 fense. Beld, K. could recover ; that the 
 enterprise was not complete ; that K. re- 
 lented before the consummation of the 
 enterprise, and that in such cases In pari 
 delicto, etc., is no defense. 
 Contracts; illegal contracts. One standing 
 in pari delicto in an illegal contract can 
 have no redress from any court, except 
 where illegal purpose is not complete. Hol- 
 man ; Pearce ; Diggle, 367 ; Pacti privato- 
 rum, etc. ; Bro. Max. 696, 697. 
 367. BEATTMONT V. BEETE (1846), 
 8 Q. B. 483 (55 E. C. L. R.), 70 R. R. 
 552, n., Ans. Conts., Pars., Chit., Bish., 
 1 Add. 3, 252, 1 Beach, 153, Ham., Smith, 
 203, Whart., Sto., Clark, Laws. 100, 319, 
 Hughes' Conts., 2 Kent, 465, 2 Rand. Com. 
 Pap. 516, Danl., 1 Pars. N., Gr. Pub. Pol. 
 206, Mews' B. C. L., 9 Cyc. 358, Sto. Eq. 
 296-297. 
 Cited, §§ 15, 156, 299, 353, Hughes' Proc. 
 Cited, %% 52, 70, 169, 220, 285, 292, Gr. & 
 
 Rud. 
 Beaumont stated: Caroline B. sued Henry R. 
 in assumpsit on an oral promise, and 
 asked a judgment against him upon a 
 foundation gathered from these facts : 
 That she had been his late mistress ; that 
 he debauched and induced her to live with 
 him, whereby she had been injured in 
 character and deprived of the means of 
 procuring an honest livelihood ; that they 
 finally agreed to discontinue the immoral 
 connection and live apart ; and that de- 
 fendant, as a compensation for the injury 
 and in consideration of the premises, un- 
 dertook to pay plaintiff a yearly sum to- 
 ward her maintenance ; which he had 
 failed to do. Held, that from the fore- 
 going facts no legal consideration appeared 
 for the promise, and that such a state 
 of fact would not constitute a foundation 
 for a judgment. 
 A moral consideration will not support a 
 promise. Eastwood : 336 ; Lee : 318 ; 
 Wennall v. Adney (1802), 3 Bos. & P. 
 247, 6 R. R. 780, ext. note, stating Lamp- 
 leigh : 301, and Trueman, Mews' E. C. L. 
 (master not liable on implied promise to 
 pay for medical attendance on a servant 
 who has met with an accident in his 
 service) ; Atkins, 2 East, 505, Mews' E. 
 C. L. ; Mills : 316. 
 
 (Wightman, J. : There is the word "de- 
 bauched.") 
 
 "That does not necessarily mean that the 
 plaintiff was chaste before her connection 
 
 Leading Cases. — 367. Beaumont. 
 
 with the defendant." Every presumption 
 is against the pleader. Dovaston: 217. 
 "I felt some doubt in this case ; but, on con- 
 sidering the point, I agree that a prece- 
 dent moral obligation, not capable of cre- 
 ating an original cause of action, will not 
 support an express promise. And clearly 
 on the authorities, there is nothing here to 
 raise any obligation beyond that. We 
 therefore must act on the doctrine laid 
 down in the note to Wennall v. Adney." 
 The foregoing statement was subject to gen- 
 eral demurrer, also motion in arrest of 
 judgment and had judgment been entered 
 thereon, then to collateral attack. Cooke: 
 321. In pari delicto, etc. Moore, sub, 
 Cruikshank. 
 An illegal subject-matter will not attract 
 jurisdiction. See Jurisdiction ; S. t. 
 Baughman : 268. 
 The rules of contract and of procedure act 
 and react upon each other. See Adjective 
 Law; Texas R. R. v. Humble. Past co- 
 habitation not sufficient to sustain a parol 
 or oral promise. Wallace, 103 111. 229, 
 249, Gr. Pub. Pol. 206 : cases ; Finch, 
 Conts. 620. Otherwise if promise is under 
 seal. Ans. Conts. 187, 197 ; Ayerst, L. 
 R. 16 Eq. Cas. 275. See Seal; Collins. 
 Consideration. Moral consideration insuffi- 
 cient. Cumber ; Chit. Conts. 52, Add, 
 Conts. 13. Lee : 318. 
 
 In law Miss B. was not a wronged per- 
 son, and R. was not a wrong-doer. See 
 Seabury : 281 ; S. v. Baughman. A bad 
 beginning cannot have a good ending, in 
 law. Quod ab initio, etc. Cooke : 321. 
 
 An antecedent moral obligation will not 
 support a promise. Note to Wennall v. 
 Adney (discussing Trueman v. Fenton and 
 Lampleigh v. Braithwait) 6, R. R. 782. 
 368. FEAB.CE v. BROOKS (1866), 1 
 Exch. 213, 4 H. & C. 358, 6 Rul. Cas. 325- 
 492, ext. n. ; Ans. Conts., Chit., Keener, 
 853, 1 Add. 252, Bish. 59, 508, Smith, 
 212, Whart. 341-343, 374, Laws, (re- 
 viewed and criticised), Sto. 671, Clark, 
 440, 480, Ham., 1 Page, 533, 9 Cyc. 517, 
 Hughes, Williston, Cas. 231, Mech. Sales, 
 g. v., 2 Benj. 794, Gr. Pub. Pol. 597: 
 cases, Bro. Max. 739, Bigl. Fraud, 170- 
 178, 128-231, Mews' E. C. L. 
 Cited, §§ 154, 156, 345, Hughes' Proc. 
 Pearce stated: Pearce & Co., plaintiff, was a 
 partnership, and let to B., a prostitute, a 
 brougham in which to ride and make 
 meretricious display and attract men. 
 Only one of the partners knew of the uses 
 made of the carriage. B. refused to pay 
 for its use, and P. sued her. Beld, P. 
 could not recover upon such a contract. 
 In pari delicto, etc. Holman; Cannan v. 
 Bryce (1819), 3 Barn. & Aid. 179, 2 
 Benj. Sales, 793 : stated, Ans. Conts. 192, 
 Bish. 471, 535, 2 Kent, 466-468 ; Gr. 
 Pub. Pol. 112, 2 Pom. Eq. 942, Bigl. 
 Fraud, 170. 
 A sale otherwise lawful is not connected 
 with subsequent unlawful conduct by the 
 mere fact .that the seller correctly divines 
 the buyer's unlawful intent closely enough 
 to make the sale unlawful. Graves. 
 Cited, sub, Holman. 
 Advancements made to further and carry on 
 
DATUM POSTS. 
 
 195 
 
 Leading Cases. — 368. Pearce. 
 
 illegality cannot be recovered. Pearce, 
 sub, Holman ; M'Kinnell v. Robinson 
 (1838), 3 M. & W. 435 (S. P. as Cannan 
 v. Bryce) : stated, Ans. Conts. 193, Bish. 
 31, 35, Ham. 209, 247, 2 Benj. Sales, 
 793, 2 Kent, 487 ; cited, Gr. Pub. Pol. 94, 
 2 Pom. Eq. 942, Mews' E. C. L. 
 
 Knowledge of illegality as an element. 
 Cannan; McKinnell, supra; Gr. Pub. Pol. 
 94 : cases : Eddy, Combinations, 113 ; Bish. 
 Conts. 535 : cases ( criticising Rose, 6 Colo. 
 102) : Tatum, 25 Ark. 209,. 94 Am. Dec. 
 717 (selling guns to aid rebellion is ille- 
 gal) ; Anheuser, etc., 44 Minn. 318, 20 
 Am. St. 580, n., 9 L. R. A. 506, n. : 
 cases; Tyler, 79 Me. 210, 1 Am. St. 301 
 (money loaned for gambling, if used, can- 
 not be recovered) ; Miners' Ditcb, 37 
 Cal. 543, 9 Am. Dec. 300-338, ext. n. 
 {ultra vires contracts of corporations, if 
 executed cannot be rescinded) : Standard 
 Furniture Co., 22 Wash. 670, 62 Pac. 
 145, 79 Am. St. 960 (furniture for bawdy 
 house) . 
 
 Loaning one money to gamble with consti- 
 tutes one a particeps criminis. Appleton, 
 10 N. M. 748, 55 L,. R. A. 93 : cases. 
 Liability of carrier for transporting intox- 
 icating liquors. So Express, 107 Ga. 670, 
 46 L. R. A. 417, n. 
 
 Illegal contracts; prostitution. Contracts 
 made to aid or in anywise connected with- 
 prostitution are illegal and void. Bub, 
 Holman ; Beaumont ; Spring Co. Ex dolo 
 malo: No cause of action arises out of 
 fraud. Peck v. Ellis ; In pari delicto. 
 
 Procuring evidence is illegal, because of its 
 evil tendencies. Quirk, 14 Mont. 467, 43 
 Am. St. 647; Cobb, 40 Vt. 25, 94 Am. 
 Dec. 370-378, ext. n. ; Goodrich, 144 111. 
 422, 36 Am. St. 459, 19 L,. R. A. 371, n. 
 
 Contracts for permanent employment and 
 similar agreements. Carnig, 167 Mass. 
 655, 35 L. R. A. 512-518, ext. n. See 
 Peter: 340. 
 
 Immoral contracts generally. 1 Add. Conts. 
 251, 6 Rul. Cas. 325-492, ext. n., Gr. 
 Pub. Pol., 1 Whart. Conts. 360-374, Smith, 
 211, Add. Conts. 251. 
 
 369. HALL v. CORCORAN (1871), 107 
 Mass. 251, 9 Am. Rep. 30-38 ; Bigl. L. C. 
 Torts, 440, Cool. Torts, 124, 178, 525, 1 
 Kinkead, Torts, 24, 25, Bigl. L. C. Torts 
 722, Sto. Conts. 754, 769, Whart., 1 Chit., 
 Hughes' Conts., Week, Dam. Abs. Inj., 58 
 Neb. 25, 76 Am. St. 66. Cited, § 347, 
 Hughes' Proc. 
 
 Hall stated: Action of tort for conversion 
 of a horse. H. hired a horse to C. to 
 drive to South Adams and back, but C. 
 drove to Clarksburgh, two miles beyond, 
 and so carelessly as to Injure horse and 
 sleigh. H. sued, and C. defended upon 
 the ground that the whole transaction 
 was on Sunday, and was not a work of 
 necessity or charity and was in violation 
 of a statute. (Bloom ; Dies Dominicus, 
 • ■etc.). Held, H. could recover ; that the 
 ■defense was too remote. Brooks ; Sutton. 
 Doolittle v. Shaw, 92 Iowa, 348, 54 Am. 
 St. 562, 26 L. R. A. 366-370, n. ; Gross, 
 S3 Iowa, 72, 26 L. R. A. 605 (both par- 
 
 Leading: Cases. — 369. Hall. 
 
 ties violating Sunday will not bar a re- 
 covery). 
 
 Sunday laws; conversion. Horse hired to go 
 one place, and driven to another, is con- 
 version, and may be recovered for, al- 
 though the contract was on Sunday. Hall ; 
 Brooks. Hiring a horse to be driven one 
 place and then driving it to another is 
 a conversion. Malaney, 60 Vt. 571, 6 Am. 
 St. 135, Kink. Torts, 24, 25. 
 
 370. BROOKS V. MABTIH (1863), 2 
 Wall. 70, 17 L. ed. 732 ; Gr. Pub. Pol. 
 107, 23 Fla. 52, 11 Am. St. 333, 9 L. R. 
 A. 695, Ans. Conts. 199, n., Pars. 92, 
 Beach, Ham. 256, Whart. 343, 349, 473. 
 Laws. 54, 222, Clark, Sto. 656, Hughes, 
 1 Page, 532, 536, 541, 1 Danl. Nego. Insts. 
 200, 1 Suth. Dam. 5, -Bigl. Fraud, 344, 2 
 Benj. Sales, 788. 
 
 Cited, §§ 154, 156, 345, Hughes' Proc. 
 
 Brooks v. Martin stated: B. and M. formed 
 a partnership to buy claims of Mexican 
 . soldiers, the law forbidding such traffic ; 
 but it did not declare that titles to lands 
 obtained through such claims should be 
 void, nor that such lands might not be 
 subject to sale. The firm bought many 
 claims, did a great business, and by sale 
 and assignments acquired much land. 
 Finally they sold their assets and closed' 
 up with B. in possession. M. sued fqr 
 an ' accounting. Held, relief should be 
 given. This case is widely cited and. of ten 
 criticised. 
 
 Gr. Pub. Pol. 107 ; Crescent Ins., 23 
 Fla. 50, 11 Am. St. 331 ; Ins. Co., 51 Ohio 
 St. 270, 46 Am. St. 571 ; Pennington, 47 
 N. J. Eq. 560, 11 L. R. A. 587, n. (part- 
 nership ; share of profits illegally ac- 
 quired) ; Manchester R. R. v. Concord R.- 
 R. (1890), 66 N. H. 100, 3 Am. R. R. & 
 Corp. Rep. 22, 49 Am. St. 582, 9 L. R. 
 A. 689 : stated, Brooks : 370 ; Jackson, 53 
 Oh. 303, 35 L. R. A. 287 ; Martin v. Rich- 
 ardson, 94 Ky. 183, 42 Am. St. 353, 19 
 L. R. A. 692, n. : cases ; Mobile R. R., 
 94 Ala. 131, 17 L. R. A. 113, ext. n. 
 (relief to less guilty party to a contract) ; 
 Choteau, 114 Cal. 91, 55 Am. St. 63, n. 
 (partnership for immoral purposes) ; An- 
 drews, 74 Miss. 362, 60 Am. St. 509, n.~; 
 Fivaz v. Nicholls (1846), 2 C. B. 501 
 (52 E. C. L. R.), 69 R. R. 514, 3 Mews' 
 E. C. L., Bro. Max. 730. 
 
 Courts were created to advance and 
 maintain morality — not immorality. They 
 were not created to enforce honor among 
 thieves. What they were not created for, 
 they have no jurisdiction of. Woodson v. 
 Hopkins, 85 Miss. 171, 107 Am. St. 275- 
 290 : cases. 
 
 Partner in charge and superintending 
 the firm's business cannot buy out absent 
 partner without making full disclosures. 
 Brooks ; Patrick. 
 
 Concealment by partner buying absent part- 
 ner's interests will vitiate purchase. 
 Brooks ; Patrick ; Keech. Tendency to 
 illegality is sufllcient to vitiate. Bish. 
 Conts. 476. 
 
 Accounting, between parties to illegal trans- 
 actions; when allowed. Gr. Pub. Pol. 102- 
 107, Kerr on Fraud, 377-379, 388 (a 
 particeps criminis may sometimes re- 
 
196 
 
 DATUM POSTS. 
 
 Leading Cases. — 370. Brooks. 
 
 cover) ; Bish. Conts. 489. See In pari de- 
 licto, etc. ; Whitworth. 
 
 Accounting by illegal partnership. Central, 
 Co., 112 Ky. 606, 99 Am. St. 317-329, 
 ext. n. (breeding and training race horses 
 for purses is legal). 
 
 Agent of trustee cannot defend under In pari 
 delicto, etc. Whart. Ag. 25, 250, 1 Whart. 
 Conts. 357, Smith, Conts. 251 ; Keech; 
 Floyd, 72 Tex. 202, 13 Am. St. 787, n. 
 Qui facit per alium facit, etc. 
 
 Agent cannot set up illegality of transac- 
 tion to hold money of principal. 
 
 Hardy, 63 Kan. 8, 64 Am. St. 969, 88 
 Am. St. 223. See Keech. S. P. as in 
 Brooks ; Tracy ; Holman ; Reynell v. 
 Sprye, 1 De G. M. & G, 660-679, 42 Bng. 
 Rep. 710; stated, 17 L. R. A. 113; 
 Waters : U.0 N. C. 338, 16 L. R. A. 834, n. 
 Fraud. Ex dolo malo non oritur actio 
 (no cause of action arises out of fraud) 
 does not apply when a case can be made 
 out independently of fraud. De Leon, 49 
 Tex. 88, 30 Am. Rep. 101, ext. n. ; Buck, 
 26 Vt. 184, 62 Am. Dec. 464, n. ; Evans, 
 24 Pa. 62, 62 Am. Dec. 359, Whart. Ag. 
 25, 250 ; Holman, Hall ; In jure non 
 remota; Woodson, supra. 
 
 Money had and received will lie for money 
 fraudulently drawn by means of a lottery 
 •ticket. Catts v. Phalen (1844), 2 How., 
 376 ; Bigl. Fraud, 170 ; Martin, supra 
 (contracts arising out of illegality en- 
 forceable). 
 
 Holder of a lottery ticket may recover 
 the prize from one who fraudulently- got 
 possession of it and its proceeds. Martin 
 v. Richardson, supra; cited, Catts; Arm- 
 strong. 
 
 Bailments upon illegal contracts ; recov- 
 ery when permissible. 2 Kent, 587 ; Hall. 
 
 Non-delivery of telegram; because relating 
 to illegal deals, is no defense. Gray, 87 
 Ga. 350, 27 Am. St. 529, 14 L. R. A. 85, n. 
 
 371. DIGGLE v. HIGGS (1877), 2 L. R. 
 Bxch. Div. 422, 6 Rul. Cas. 477-492, ext. 
 n. ; Gr. Pub. Pol. 225, Smith, Conts. 270. 
 Whart. 451, Hughes, 3 Mews' B. C. L. 
 Cited, Taylor v. Bowers ; Bernard v. Tay- 
 lor, post (excellent cases). 
 
 Cited, §§ 154, 156, 297, 345, Hughes' Proc. 
 
 Higgle stated: Wagers. A party to a wa- 
 ger may demand and recover his money 
 from the stakeholder at any time before 
 he has paid it over. Until it is paid they 
 are not in pari delicto. 
 
 Bunn ; 2 Beach, Conts. 1429 ; Deaver, 
 29 Neb. 812, 26 Am. St. 415, n. ; Bernard 
 v. Taylor (1893), 23 Or. 416, 37 Am. St. 
 693, 695, n. : cases, 18 L. R. A. 859 ; 
 Ham. Conts. 215, 258, Huff. & W. Conts. 
 407 (stating Taylor v. Bowers, post, and 
 the general rule) ; Stacy, 19 Me. 335, 36 
 Am. Dec. 755-757, n. ; Bledsoe, 6 Rich. 
 Law (S. C), 44, 57 Am. Dec. 777, 778, 
 n. ; Wilkinson, 16 Minn. 299, 10 Am. Rep. 
 138-144. Bute discussed. Gr. Pub. Pol. 
 84, Ans. Conts. 200-203 : cases ; Hampden 
 v. Walsh (1876), L. R. 1 Q. B. Div. 189; 
 Mews' B. C. L. : stated, Ans. Conts., 201- 
 203 ; Harper, 85 Ky. 160, 7 Am. St. 583 ; 
 Taylor v. Chester, L. R. 4 Q. B. 309-315, 
 38 L. J. Q. B. 225, 6 Rul. Cas. 477-492, 
 n. ; Huff. & W. Conts. 407, 2 Chit. Conts. 
 
 Leading Cases. — 371. Diggle. 
 
 976 ; Grover v. Zook, — Wash. — , 64: 
 Cent. L. J. 451-458, ext. n. (marriage. 
 contract with a diseased person). 
 
 S. P. as in Diggle. As to a stake of two. 
 horses upon the event of a race to be trot- 
 ted by them. Coombs, L. R. 1 Exch. 248, 
 4 H. & C. 375, Mews' E. C. L. 
 Parties must not only be in delictum but in. 
 pari delicto, in equal degrees of delictum,, 
 in equal fault. Hess, 77 Mich. 598, 18 
 Am. St. 421, n. ; 6 L. R. A. 498, n. ; Clark, 
 etc., 77 Ga. 606, 4 Am. St. 98, n. (money 
 deposited with agent for gambling is re- 
 coverable) ; Tyler, 79 Me. 210, 1 Am. St- 
 301 (money loaned for gambling but not 
 used may be recovered) ; Adams, Eq. 175 ; 
 Manchester R. R., 66 N. H. 100, 9 L. R. 
 A. 689 : cases, 49 Am. St. 582, 20 Atl. 
 383, 3. Am. R. R. & Corp. Rep. 22,- 3- 
 Cook, Corp. 893, 894 ; 2 Beach, Conts. 
 1779 : cases ; 1 Sto. Eq. 300, 2 Pom. Eq. 
 942 ; Harper, 85 'Ky. 160, 7 Am St. 583, 
 n. ; Carll, 148 Mass. 32, 12 Am. St. 515, 
 1 L. R. A. 618 (fraudulent conveyance) ; 
 
 1 Beach, Mod. Eq. 80, Adams' Eq. 175 ; 
 Stark, 39 Kan. 100, 7 Am. St. 537, n. 
 (undue influence inducing the contract.) 
 
 Executory contracts; exception. While 
 the illegal purpose is executory, the right 
 to withdraw is a duty; it is called locus- 
 posnitentix. 
 
 Ans. Conts. 200 : cases ; Smith, Conts. 
 304, n. ; Taylor v. Bowers : stated, 2 Mech. 
 Sales, 999, 2 Ben]. 787, Keener, Quasi 
 Conts. 259, 117 Cal. 473, 59 Am. St. 215,. 
 And. Am. Law ; Bernard v. Taylor; 2: 
 Beach, Conts. 1429 ; Spring Co. ; Bigl. 
 Fraud, 170, 344 ; Symes, L. R. 9 Eq. 475 ; 
 Mews' E. C. L. ; Hastelow, 8 Barn. &. 
 Cress. 221 (15 E. C. L. R.) ; Mews' E. C. 
 L. ; Bone, 5 Hurl. & Nor. 925 ; Mews' E. C. 
 L. ^ Add. Conts. 1412 ; Palyart v. Lecki» 
 (1817), 6 M. & S. 200; Mews' E. C. L. ; 
 
 2 Pars. Conts. 627, 1 Pom. Eq. 403 ; . 
 Edgar E. C. L., 3 East 225 ; Mews' B. C. 
 L. ; Stacy, 19 Me. 335, 36 Am. Dec. 755- 
 757; Smith v. Bickmore (1812), 4 Taunt. 
 (Eng.) 474; Mews' E. C. L. ; White, 22 
 Pick. 181 : Whart. Conts., § 354, 2 BenJ. 
 Sales, 787, n., Adams' Eq. 175. 
 
 And this idea is in criminal law. No- 
 crime is committed until the act is done. 
 2 Best, Ev. 457. Actus non facit reum 
 nisi mens sit rea; Cruikshank. 
 
 One may plead freedom from a contract 
 into which he never should have entered. 
 Bro. Max. 695. Pactis privatorum juri 
 publico non derogatur. § 18, Hughes' Conts. 
 
 Moneys advanced for illegal purposes may 
 be recovered. Wassermann, 117 Cal. 425, 
 59 Am. St. 209, n. A forbidden mar- 
 riage may be avoided. Van Houten. 
 
 Marine insurance. If the conditions in a 
 policy have been performed, there can be 
 no return if contract was illegal, but 
 otherwise if not performed. Upon form- 
 ally renouncing and retiring from the 
 contract, the premium may be recovered. 
 Palyart, supra: stated, Tyrie v. Fletcher 
 (1777), 2 Cowp. 666; Mews' E. C. L. 
 Carter v. Boehm (concealment avoids 
 marine insurance absolutely). 
 
 Relief from illegal contract. Duval, 124 
 
DATUM POSTS. 
 
 197 
 
 Leading Cases, — 371. Diggle. 
 
 N. Y. 126, Huff. & W., Conts. 402. Pac- 
 tis privatorum, etc. Bro. Max. 695, 696 ; 
 Reynell v. Sprye (1852), 8 Hare, 222, 1 
 De Gex, M. & G. 660, 678, 42 Eng. Rep., 
 710, Mews' E. C. L., 2 Chit. 976 ; Hughes' 
 Conts. 
 
 372. MITCHEL (OR MITCHELL) T. 
 REYNOLDS' (1711), 1 P. Wros. 181, 1 
 Smith, Lead. Cas. 756-783, 8th ed., 1 id. 
 404-436, 11th ed., 24 Eng. Rep. 347 ; 
 Eddy, Combinations, q. v., 2 Kinkead 
 Torts, 491, 2 Pars. Conts. 871, 874, Chit., 
 Bish., Smith, 213, 218, 226, Whart. 430, 
 431, Clark, 448, Sto., Ham. 272, Hughes, 
 U. S. v. Addyston, etc. Co. (1897), 175 
 U. S. 211, 54 U. S. App. 723, 86 Fed. 
 271, 29 C. C. A. 141, L. R. A. 122, 2 
 Benj. Sales, 806, 106 N. Y. 475, 2 Rand. 
 Com. Pap. 507, Greenh. Pub. Pol., Sto., 
 Eq., Bish., Pom., 2 Kent, 466, 517, 4 id. 
 130, 1 Beach, Injunc. 467, 468. 
 
 Mitchel stated: Contracts in restraint of 
 trade. R., a baker, sold out his business 
 to M., and agreed not to engage in it for 
 five years. He violated this contract and 
 M. sued and recovered £50. French v. 
 Parker (1888), 16 R. I. 219, 27 Am. St. 
 933, n., 27 Cent. L. J. 527-531 ; Diamond 
 Match Co. v. Roeber (1887), 106 N. Y. 
 473, 60 Am. Rep. 464, Huff. & W. Conts. 
 362; McCurry, 108 Ala. 451, 54 Am. St. 
 177, n., Bouv. Diet. 909-914. Richards, 
 87 Wis. 503, 10 Am. R. R. & Corp. Rep. 
 99-172, ext. n. (pools and trusts) ; Addys- 
 ton Pipe & Steel Co. v. U. S. (1899), 175 
 U. S. 211 ; 2 Eddy Combinations, q. v.; 
 Hitchcock v. Coker (1837), 1 Nev. & P. 
 796, 6 Adol. & El. 438 (33 E. C. L. R.) ; 
 Mews' E. C. L. ; Smith, Conts. 221 ; Eddy, 
 Combinations, g. v., French v. Parker, 
 supra, 2 Benj. Sales, 810-812 ; 9 Cyc. 527 ; 
 Kramer, 119 N. C. 1, 56 Am. St. 690, n. ; 
 Alger, 19 Pick. (Mass.) 61, 31 Am. Dec. 
 119 ; Smith, Conts. 226. § 158, Hughes' 
 Proc. 
 
 Contracts in total ' restraint of trade illegal. 
 Salus populi, etc. Greenh. Pub. Pol. 683- 
 700 (excellent resume with valuable ci- 
 tation, cases reviewed and criticised) ; 
 Alger; Mallan. See Holman : 363. 
 
 Contracts in restraint of trade. Greenh. 
 Pub. Pol., pp. 683-770 : cases ( excellent 
 resume; see supra) ; 2 Eddy, Combina- 
 tions, 657-795; Wright, 36 Cal. 342, 95 
 Am. Dec. 186-193, n. : cases ; cited, Ans. 
 Conts. 188, 2 Pom. Eq. 934, 1 Add. Conts. 
 270, Herreshoff, 17 R. I. 3, 33 Am. St. 
 850, n., 8 L. R. A. 469 (may be co-ex- 
 tensive with state) ; Western Ass'n, 84 
 Mich. 76, 11 L. R. A. 503, n. 
 
 A contract in partial restraint of trade is 
 upheld. Tuscaloosa Ice Co., 127 Ala. 110, 
 28 So. 669, 85 Am. St. 125, n., 50 L. 
 R. A. 175 ; Union Strawboard, 193 111. 
 420, 86 Am. St. 346, n. (limitations as 
 to time and place must be reasonable). 
 
 Contract limiting as to time and subject- 
 matter void. Clark, 125 Mich. 84, 82 
 Am. St. 559, n. : cases. 
 
 Illegal trusts under anti trust laws. Whit- 
 well, 125 Fed. 454, 64, L. R. A. 689-775 ; 
 Straus, 177 N. Y. 473; Atlanta, 127 Fed. 
 
 Leading Cases.— 372. Mitchel. 
 
 23 ; Harding, 182 III. 551, 64 L. R. A. 
 738. 
 Unlawful combinations; Standard Oil: 118 
 
 Ky. 662, 111 Am. St. 331, n. 
 The old common-law doctrine was, that a 
 contract imposing any restraint of trade 
 was contrary to- public policy and void. 
 Gradually, however, it came to be recog- 
 nized that in some circumstances a re- 
 striction to protect the purchaser of a 
 business and its good will, or to protect 
 partners in a business, or to protect trade 
 secrets, worked to the benefit of the public 
 and the individual alike by promoting 
 the easy, untrammeled transfer of prop- 
 erty in accord with the policy of the law, 
 and by allowing a party to dispose of the 
 fruits of his industry more advantageously. 
 Hence arose the doctrine announced in 
 Mitchel, that a contract which imposed 
 only a partial restraint of trade and pro- 
 ceeded upon an adequate consideration 
 was valid. The phrase "adequacy of con- 
 sideration" will be found to mean the 
 same thing as reasonableness (Mallan; 
 Pilkington v. Scott, 15 M. & W. 657). 
 
 After a series of carefully considered 
 cases, a further modification has been 
 established by the courts of England, and 
 the present doctrine there tends to dis- 
 regard the distinction between general 
 and partial restraints, and to make the 
 inquiry turn upon whether the restraint 
 is reasonable and no wider than is neces- 
 sary to protect the covenanter. A notable 
 recent case on the subject is Nordenfelt 
 v. Maxim Nordenfelt Guns and Ammuni- 
 tion Co. (1894), 63 L. J. Ch. 908; A. C. 
 535, 6 Rul. Cas. 413, Mews' E. C. L. 191, 
 192. Followed in Underwood, L. R. 1 Ch. 
 Div. 300. 
 
 The prevailing doctrine of the federal 
 courts and of most of the state courts in 
 the United States is substantially in ac- 
 cord with that which obtains in England 
 (U. S.), 166 U. S. 290; Harrison, 116 
 Fed. Rep. 304 ; Oliver, 52 Fed. Rep. 562 ; 
 Carter, 43 Fed. Rep. 208 ; U. S. v. Addy- 
 ston, 85 Fed. Rep. 271 ; Diamond Match 
 Co., supra; Anchor Electric Co. v. Howkes, 
 171 Mass. 101 ; Richards, supra. Eddy 
 on Combinations, citing these cases. 
 
 Some of the state courts, however, ad- 
 here to the old common-law doctrine, and 
 decline to enforce a restrictive covenant 
 which embraces the whole of the U. S. or 
 even the entire state. Union Strawboard 
 Co. ; Lufkin Rule Co., 57 Ohio, 596. 
 The scope of the limitation of the doctrine 
 permitting contracts in restraint of trade 
 to be enforced. The very statement of the 
 rule governing contracts in restraint of 
 trade shows that it applies only to those 
 covenants of restraint which are merely 
 auxiliary to the main purpose of a lawful 
 contract. It is such main purpose that 
 supplies the measure of protection needed. 
 An independent contract in restraint of 
 trade is not sustainable under the above 
 rule (U. S. v. Addyston Pipe, supra; Nes- 
 
198 
 
 DATUM POSTS. 
 
 Leading Cases.— 372. Mitchel. 
 
 ter, 161 Pa. 473 ; S. C„ 24 L. R. A. 247 ; 
 Tuscaloosa Ice Mfg. Co. v. Williams, 
 supra). 
 
 Covenants in unreasonable restraint of trade 
 are void in the sense that the courts re- 
 fuse to enforce them. They are not im- 
 moral in the sense that it is unlawful to 
 enter into them, but the parties must de- 
 pend for their performance upon the good 
 nature and bona fides of each other. The 
 law attaches no obligation to either party 
 to perform (Lyon, 36 Mich. 345 ; More v. 
 Bennett, 41 III. App. 174 ; Live Stock Co., 
 143 III. 235 ; Pishell, 60 N. J. Law, 5 ; 
 Burlington Co., 31 Fed. Rep. 652). 
 
 Whether a contract which contains a 
 covenant in illegal restraint of trade is 
 enforceable depends upon principles re- 
 lating to divisible and entire contracts, 
 and general rules governing remedies upon 
 contracts. In applying these principles 
 and rules it is essential to consider 
 whether the contract is unilateral or bi- 
 lateral ; whether it is the promisee or the 
 promisor who is in alleged default, that 
 is, who is the party plaintiff ( 1 Pars. 
 Conts., 8th ed., 474, Ans. Conts.,' Huff- 
 cutt's ed., 1895, pp. 253, 255 ; Higgins, 65 
 Ark. 604, 15 Am. & Eng. Bncyc. Law, 2d 
 ed., 990, 991: cases). 
 
 It has been declared that when a contract 
 contains a covenant which is unreason- 
 ably in restraint of trade the illegal cove- 
 
 % nant will be disregarded and the contract 
 enforced as if no such covenant had been 
 included. Rosenbaum, 65 N. J. Law 266 ; 
 Fishell, supra. The announcement of this 
 proposition was not necessary to the de- 
 cision of either of these cases, and it is 
 difficult as a matter of principle to find 
 support for it. It is a matter of common 
 knowledge that persons frequently enter 
 into contracts with a well defined and 
 understood purpose to secure the per- 
 formance of acts or the attainment of ob- 
 jects which are illegal because against 
 public policy or contra bonos mores (Lyon 
 supra; Live Stock Co., supra; More, su- 
 pra). For the court to strike out such 
 a stipulation in a contract on the ground 
 that it forms no part of the consideration 
 would be to make a new and different 
 contract for the parties in violation of 
 well established principles of contract 
 construction. Cutter : 308 : cases. 
 
 Prior to 1870 it was generally held that 
 prohibiting business within a state was 
 void, hut this rule was then relaxed. Ans. 
 Conts. 188. Good will. 12 Rul. Cas. 442- 
 463 ; 14 Am. Law Reg. 1-11. 
 
 Contracts may be valid in part and void in 
 part. Pigot's Case. 
 
 Corporations cannot suspend the functions 
 for which they are created by contract. 
 Central Co. v. Pullman, 139 U. S. 24, 4 
 Am. R. R. & Corp. Rep. 172. 
 
 Monopoly; combinations; pools. S. v. Ne- 
 braska, etc. Co. ; Gr. Pub. Pol. 642-683 ; 
 Nester, 161 Pa. 473, n., 2 Benj. Sales, 
 799 ; Trenton Potteries, 58 N. J. Eq. 507, 
 78 Am. St. 612, n. 
 
 Leading Cases. — 372. Mitchel. 
 
 Monopoly; contract in restraint of trade to 
 create, is void. Santa Clara, 75 Cal. 387, 
 9 Am. St. 211, n. Injunctions to enforce 
 contracts in restraint of trade. 1 Beach, 
 Eq. 461-473. Combinations in trade when 
 unlawful. Brown, 111 Ga. 429, 90 Am. 
 St. 126 : cases. 
 
 Sale of hotel to competitor to give the 
 latter all the custom is void. Clemons v. 
 Meadows, — Ky. — , 6 L. R. A. N. S. 847: 
 cases. 
 
 Contracts in restraint of trade must be upon 
 a sufficient consideration, although under 
 seal. Ans. Conts. 188 ; Hitchcock v. Co- 
 ker, supra, sub, Cumber ; Mallan. 
 
 Limitation as to place is essential to validity 
 of. Gamewell Co., 160 Mass. 50, 39 Am. 
 St. 458-465, n., 10 Am. R. R. & Corp. Rep. 
 78-98, 22 L. R. A. 673, n. ; 1 Beach, 
 Inj. 464. 
 
 Retiring partner, having sold the good 
 will of the business may re-enter busi- 
 ness, but cannot solicit the former cus- 
 tomers of the abandoned firm to trade 
 with him. Trego (1896), A. C. 7, 73, 12 
 Rul. Cas. 442-463, n. 
 
 373. MALLAN v. MAY (1843), 11 M. & 
 W. 653, 13 id. 511, 63 R. R. 708, 5 Rul. 
 Cas. 376-492, ext. n., 67 R. R. 707 ; 
 Mews' E. C. L., Be.nj. Sales, 814, Ans. 
 Conts. 188, Pars., Ham., Bish., Chit., Beach, 
 Whart. 430-433, 632, 638, 672, Sto., Clark, 
 Hughes, Jones, Construct., Gr. Pub. Pol. 
 21, q. v., Suth. Stat. 792, Bro. Max. 552, 
 741, 1 Kent. 462, 2 Kent, 466, 3 Kent, 
 260, 9 Cyc. 565 ; French v. Parker, 16 
 R. I. 219, 27 Am. St. 733, n., 10 Am. R. 
 R. & Corp. Rep. 168, 2 Whart. Ev. 924, 
 1 Beach, Inj. 467. Cited, §§ 147, 236. 
 
 Mallan stated : M. covenants : 1. Not to 
 carry on the business of surgeon-dentist 
 in London. 2. Nor in any place where 
 the covenantess may have practiced. The 
 former portion, being reasonable, will be 
 enforced. 
 
 A contract may be valid in part and void in 
 part, Wharf. Conts. 233, 337-338a; 2 
 -Smith Corp. 737 : cases ; Corcoran, 138 
 111. 390 ; This rule also applies to stat- 
 utes. Spraigue : 236 ; Ut res magis valeat 
 quam pereat. 1 Chit. Conts. 67 ; 2 id. 
 972 : cases ; Bro. Max. 741 : cases ; Ans. 
 Conts. 189 ; Tatum : 25 Ark. 209, 94 Am. 
 Dec. 717, n., 10 Am. R. R. & Corp. Rep. 
 168, 2 Benj. Sales, 789 ; Texas Co., 83 
 Tex. 650, 15 L. R. A. 598, n. Utile per 
 inutile non vitiatur (instructive illustra- 
 tions). 
 
 Words are to be construed in an ordinary 
 and popular sense unless it is obviously 
 a ivord of art or is used- in a different 
 sense in some specified place, trade or 
 business. 
 
 Mallan, 13 M. & W. 511, Bro. Max. 
 552, Suth. Stat. 250 ; 1 Chit. Conts. 29 ; 
 Ans. Conts. 252, 1 Kent, 462 ; Cholmonde- 
 ley v. Clinton (1817), 2 Merivale, 171- 
 362, 35 Eng. Rep. 905, 2 Jac. & W. 1-201, 
 22 R. R. 83, 14 Rul. Cas. 578-638, n., 
 37 Eng. Rep. 527, Mews' E. C. L., q. v.; 
 P. v. Mosher, 163 N. Y. 32, 79 Am. St. 
 552 (constitutions are construed likewise). 
 
 A consideration is necessary to support a 
 contract in restraint of trade^ although 
 the contract is under seal. Cumber; 46 
 
DATUM POSTS. 
 
 199 
 
 Leading Cases. — 373. Mallan. 
 
 L. R. A. 130, stating Mallan ; Smith, 
 Conts. 226 ; Mitchel. 
 
 Ut res magis valeat quam pereat applied in 
 Mallan v. May. Pigot's Case; 70 L. R. A. 
 933; Boydell. 
 
 Entire contract, if void in part is void in 
 toto. Armstrong v. Toler, 11 Wheat. 258 ; 
 cited, 1 Chit. Conts. 973 : cases ; Douthart, 
 197 111. 349, 90 Am. St. 167 : cases, n. ; 
 Corcoran v. Lehigh Co., supra; Whart. 
 Conts. 233, 337-338o; Crawford, 8 Johns. 
 253, 1 Chit. Conts. 68 ; Hinds, 6 N. H. 
 225; Donallen, 6 Dana (Ky.), 89, 91; 
 Woodruff, 11 Vt. 592, 34 Am. Dec. 712; 
 Walker, 8 Foster (N. H.), 138, 61 Am. 
 Dec. 605 ; Rand, 11 Cush. 1, 59 Am. Dec. 
 131. 
 
 374. CEANDELOB V. LOPUS (1605), 2 
 Croke, 4, 1 Smith, L. C. 299-368, n., 54- 
 65, 11th ed., 15 Mor. Min. Rep. 70, 
 Hecker, Cas. Warranty, 40 Schuchardt v. 
 Allen, 1 Pars. Conts. 600, 603, 1 Chit. 
 639, Beach, 1439, Whart. 244 : cases, Sto., 
 Hughes' Conts., Huff. & Wood, Am. Cas., 2 
 Mech. Sales, 1334, Adams, Cas., Willis- 
 ton, Cas. 606; Wolcott v. Mount (1873), 
 36 N. J. Law, 262, 13 Am. Rep. 438, 70 
 L. R. A. 654, 2 Add. Torts, 1184, 625, 
 Bro. Max. 781-797, Bisph. Eq. 198, 207, 
 2 Kent, 490 ; 1 Wall. 359-371 ; C. v. L., 
 §§ 13, 15, 22, 147, 150, 186a, Hughes' 
 Proc. ; cited, §§ 8, 289a, 296, Gr. & Rud. 
 
 Chandelor stated: C., a Jeweler, sold L., a 
 customer, a stone, representing it as a 
 
 ' bezoar stone, when it was not. Held, C. 
 was not liable in contract, because his as- 
 sertion did not amount to a warranty 
 (Simplex com-mendatio non obligat) ; nor 
 in tort, because he might have believed 
 what he said. Pasley. 
 
 Chandelor has been much questioned. 
 Indeed, the law. now seems to be that 
 "every affirmation at the time of the sale 
 of a personal chattel is a warranty, if it 
 appears to have been intended as such." 
 C, being a jeweler, would probably be 
 held to have known the quality of the 
 stone. The test to determine intention is, 
 did he assume to assert a fact of which 
 the buyer was ignorant? If he did, he 
 warranted. A picture dealer gave the 
 following bill of parcels : "Four pictures, 
 views m Venice, Canaletto, 1601." It was 
 held that the jury might very well find 
 that the words imported a warranty that 
 Canaletto had painted the pictures. Power, 
 4 Adol. & El. 473 (31 E. C. L. R.), 6 N. 
 & M. 62 ; Mews' E. C. L. 
 
 Words descriptive of a thing are a warranty 
 that the goods are of that description. 
 Pope, 115 U. S. 363, Huff. & W. Conts. 
 595 ; Verba generalia, etc. ; Chanter v. 
 Hopkins, 4 Mees. & W. 399 ; 12 Mews' E. 
 C. L. ; Thomas (drug case). 
 
 What shall be said of a treatise on the 
 law of fraud which makes no mention of 
 Chandelor? We And this excuse offered: 
 that "the truth is, this case is taken as an 
 illustration of a class that has had its 
 day." Preface Bigelow on Fraud. Par- 
 sons, Contracts, cites Chancelor and 
 wholly omits Pasley. These two cases and 
 
 Leading Cases. — 374. Chandelor. 
 
 R. v. Wheatley, and the maxims Caveat 
 emptor and Simplex commendatio, are apt 
 citations in contracts, torts, fraud, sales, 
 as well as in many other relations. Each 
 holds a place in legal literature and com- 
 mands its pages peculiarly and singularly. 
 They specifically relate to no one title or 
 topic head — they belong to all. The law 
 is an entirety, a whole, and is indivisible 
 — non-partitionable. Preface Bish. New 
 Crim. Law, 8th ed. Mr. Bigelow ought 
 not to omit Chandelor, nor Parsons Pas- 
 ley. They arc technics — they lead the 
 way — they have no equivalents. Their 
 denials and modifications are easily noted 
 and made prominent, and these facts are 
 the things wanted. It is the history and 
 bibliography of each question that is need- 
 ed. Likewise the use of Kingston's Case 
 is well justified. See notes to J'Anson : 
 91 ; Dovaston : 217. The fact is, one in- 
 tellect embraces these cases, while an- 
 other denounces them. Thus the law is 
 written. 
 
 If earlier law is wrong, and Chandelor 
 misled and caused it, then that is the 
 thing to know, and is also that which en- 
 ables us to be exact, aad to make definite 
 and precise mention. As to this all must 
 agree ; and looking from the bibliography 
 of Chandelor and noting that it is found 
 in works longest and most widely cited, 
 published and sold, found all around the 
 globe, so that wherever it may be desired 
 the authority, if only known, is accessible 
 and tangible — is in nearly every library 
 on earth, — then the advantage of such a 
 case appears. For instruction and lead- 
 ing the way and giving the benefits of 
 one's own library, it is like Bees: 343, 
 Cutter: 308, Cumber: 811, Kingston's 
 Case: 76, Dovaston and B. v. Wheatley: 
 19. 
 
 Representations and warranty. Whart. 
 Conts. 212-231 ; Carter v. Boehm. 
 
 375. PASLEY v. FREEMAN (17 Mi), 3 
 Term. Rep. (D. & E.), 51, 1 R. R. 634, 
 2 Smith, L. C. 75-106, 8th ed., 66-101, 
 11th ed., 2 Smith, Cas. Torts, 425, Bigl. 
 L. C. Torts, 1-42, Hecker, Cas. Warranty, 
 12 Rul. Cas. 235-298 : cases, Chit. Conts., 
 Beach, Ham. 121, Smith, 246, Whart. 219, 
 261, Sto., Laws, 245, 1 Page 94, 13 Cyc. 
 13, 20 Cyc. 1-146, Hughes, 2 Kent, 489, 
 Suth. Dam., Mech. Sales, Benj. S., Bro. 
 Max. 193, 785, 60 Vt. 402, 6 Am. St. 123, 
 Mews' E. C. L. ; Evans v. Bicknell (1801), 
 6 Vesey, Jr. 174, 31 Eng. Rep. 998 (stat- 
 ing and discussing the case) ; Lyon v. 
 Briggs (1883), 14 R. I. 222, 51 Am. Rep. 
 372, 4 L. R. A. 159, Reinh. Ag., Bigl. 
 Fraud, 2 Kinkead, Torts, 718 : cases, 
 Cool., Bish., Moak, Underh., Add., Bish. 
 Eq., Pom., Adams, 2 Gr. Ev., Ewart, Es- 
 top 64, 222 (ablest resume of estoppel 
 from misrepresentation), Bigl. Estop. See 
 Caveat emptor. 
 
 Cited, pp. 18, 39 ; §§ 5, 13, 15, 22, 147, .150, 
 181, 186a, Hughes' Proc. ; §§ 8, 44, 46, 
 295, 229a, 296, 313, Gr. & Rud. 
 
 Pasley stated: P., the plaintiff, dealt in 
 cochineal. He was told by F., the de- 
 fendant, that he knew Mr. Falch would 
 purchase P.'s large stock on hand. P. 
 
200 
 
 DATUM POSTS. 
 
 Leading Cases.— 375. Pasley. 
 
 asked : "Is he a respectable and substan- 
 tial person?" "Certainly he is," answered 
 Freeman, who knew exactly the contrary. 
 (Fitzsimmons.) On that representation P. 
 let Falch have sixteen bags of cochineal, 
 worth £3,000, on credit. Falch being in- 
 solvent, P. sued Freeman for his deceit 
 which caused the injury. Held, Freeman 
 was liable. 1 Wat. Tres. 318, Ans. Conts. 
 131, Leake, 188, Whart. Conts. 241, Bisph. 
 Eq. 214. See Deceit ; Caveat emptor. 
 
 Statute of Frauds. Fourth section of, only 
 applies to contracts, not to torts. The 
 principle is, "that wherever deceit or 
 falsehood is practiced to the detriment of 
 another, there the law will give redress." 
 Freeman's lack of interest was no defense 
 for him. See Lord Tenderden's Act ; 
 Smith, Conts. 117; 2 Add. Torts, 1175. 
 
 He was liable for telling an untruth 
 which injured another person. An action 
 of deceit will lie for this. The injured 
 patty must have acted upon the repre- 
 sentation to his injury. 
 
 Pasley, Ewart, Estop. : cases ; Rogers, 
 57 111. 244 ; Taylor, 58 N. T. 262 ; Bran- 
 ham, 42 Ind. 181 ; Bigl. Fraud, p. 85 : 
 cases, Huffc. Ag. 150; Taylor, 11 M. & 
 W. 401-418, 63 R. R. 635. 
 
 Deceit which does not deceive is not fraud. 
 Caveat emptor. There must be a truly 
 wronged person, none other can complain. 
 To illustrate : Inserting a metal plug in 
 a cannon which one buys, carelessly or 
 without inspection, is no fraud. Deceit- 
 fully misleading one by erroneous advice 
 is actionable. Advising one deceitfully to 
 his injury or into a trap is actionable, 
 as where one is advised to assign his 
 earnings to defraud his creditors and by 
 this is injured. 
 
 Sub, Ashby : 273 ; Stark, 39 Kan. 100, 
 7 Am. St. 537 ; Horsefall, 1 H. & C. 90 : 
 cited, Ans. Conts. 161, Mews' E. C. L., 
 q. v.; Cottrill v. Krum (1890), 100 Mo. 
 397, 18 Am. St. 549-563, ext. n., Page, 
 104, 9 Cyc. 430, Smith, Torts. 527, 82 
 Cal. 351, 16 Am. St. 137-178, n. ; Dawe, 
 149 Mass. 188, 14 Am. St. 404, n., 4 
 L. R. A. 158, n ; Zabriskie v. Smith 
 (1855), 13 N. Y. 322, 64 Am. Dec. 551- 
 562, n. ; Cameron, 86 Wis. 477, 22 L. R. 
 A. 512, n. ; Kountze, 147 N. Y. 124, 49 
 Am. St. 651, 29 L. R. A. 360 ; Dickson, 
 160 U. S. 584, 40 L. ed., 543, n. ; Meeks, 
 93 Ala. 17, 11 L. R. A. 196, n. ; Bullitt, 
 42 Minn. 8, 6 L. R. A. 149, n. ; Strath- 
 more, sub, Marriage ; Hedin v. Minne- 
 apolis, Inst., 62 Minn. 146/ 54 Am. St. 
 628, n., 35 L. R. A. 417-442, ext. n. 
 (expression of opinion as fraud), Stewart: 
 128 U. S. 383. 
 
 Effects of a misrepresentation. It is imma- 
 terial whether the facts were known to be 
 false or not. 
 
 Snell v. Ins. Co. (1878), 98 U. S. 85, 
 Ewart, Estop. 79, 2 Kinkead, Torts, 712- 
 740: cases; Wilcox v. Iowa, etc. (1871). 
 32 Iowa, 367, Huff. & Wood, Am. Cas. 
 Conts. 268. A contract induced by mis- 
 representation cannot be enforced. School 
 Directors v. Boomhour (1876), 83 111. 271, 
 Huff. & Wood, Am. Cas. Conts. 271. Mis- 
 representation of a material fact acted 
 upon is ground for relief. Woodruff v. 
 
 Leading Cases. — 375. Pasley. 
 
 Saul (1883), 70 Ga. 271, Huff. & Wood, 
 Am. Cas. Conts. 272; 2 Chit. Conts. 1039- 
 1044; Howard v. Gould (1856), 28 Vt. 
 523, 67 Am. Dec. 728, 1 Page 108 ; Law- 
 son : 38 Wash. 422, 107 Am. St. 880, n. 
 
 Contracts uberrima fides (of the se- 
 verest faith) demand strict fidelity. Wal- 
 den, 12 Iowa, 134, 32 Am. Dec. 116, Huff. 
 & W. Conts. 273. 
 
 In insurance all material facts must be dis- 
 closed. Behn v. Burness; Phoenix Life 
 Ins. Co., 120 U. S. 183, Huff. & W. Conts. 
 275 ; Carter v. Boehm. 
 
 Representations that estop. Horn v. Cole ; 
 Stevens v. Ludlum (1891), 46 Minn. 160 
 24 Am. St. 210, 13 L. R. A. 270, Huff. & 
 Wood, Am. Cas. Conts. 280 ; Ewart, Estop, 
 citing Pickard, Horn, Swan and other 
 cases ; Huffc. Ag. 52, Ewart, Estop. 128 ; 
 Laidlaw v. Organ (1817), 2 Wheat. 178, 
 4 L. ed. 214 ; Huff. & W. Cas. Conts. 282, 
 Pars., Ans., Beach, Conts., Benj. Sales, 
 Mech., 2 Kent, 484, 485, Sto. Eq., Bisph., 
 Pom., Perry, Trusts. (The great Amer- 
 ican leading case.) Stewart, supra. 
 
 What is fraud. Hanson, 29 N. H. 343 : 
 cited, 2 Chit. Conts. 1039. It arises from 
 a consideration of all the facts. Id. 
 
 It is an in pari materia consideration. 
 2 Chit. Conts. 1039; Farnam : 97. 
 
 Vendor must disclose material defects, when. 
 Hughes, 1 Mon. (Ky.) 215, 15 Am. Dec. 
 104 (sale of a blind horse, not known 
 by the buyer to be so) ; Dickson, 2 B. Mon. 
 (Ky.) 374 (sale of an impotent jackass) ; 
 Hart, 7 Mon. (Ky.) 381, 18 Am. Dec. 
 186 (sales of personal property) ; Whit- 
 north v. Thomas. Same rule in sale of 
 real estate. Harris : 380. 
 
 Caveat emptor generally applies to execu- 
 tion, judicial and taxation sales. Ignoran- 
 tia legis neminem excusat. The rationale 
 of constructive notice justifies this rule. 
 Deputron : 121. All are charged with vio- 
 lations of principles of due process of law, 
 when this appears from the common-law 
 record. Windsor : 1. 
 
 Essential features; fraud is a false repre- 
 sentation. Laidlaw v. Organ, sub, Caveat 
 emptor. Concealment of a latent defect, 
 like that of cattle having fever when they 
 are sold at a sound price. Grigsby, 94 
 Mo. 423, Huff. & W. Conts. 285. 
 
 Many cases hold the representations must 
 be of fact. Fish v. Cleland ; Ross, 35 Ala. 
 434, see Cases. Huff. & W. Conts. 201 ; 
 Dawe, 149 Mass. 188, 14 Am. St. 404, 4 
 L. R. A. 158 (must be an existing fact 
 and material) ; Sheldon, 85 Wis. 138. 
 
 Many cases hold the representation must be 
 made with knowledge of its falsehood or 
 without belief in its truth. See Derry v. 
 Peek, post; Allen v. Flood, wherein Pas- 
 ley is discussed ; Chatham Furnace Co., 
 147 Mass. 403, 9 Am. St. 727, 298, 16 
 Mor. Min. Rep. 103 ; McKown v. Furgu- 
 son (1878), 47 Iowa, 636; Hunnewell, 
 154 Mass. 286, 13 L. R. A. 733, Huff. & 
 Wood, Am. Cas. Conts. 303, citing and 
 approving Pasley. 
 
 Fraud or bad faith is not essential. Ewart, 
 Estop. 83-97; see Derry v. Peek (1889), 
 14 A. C. 357, 12 Rul. Cas. 250-298 (there 
 must be proof of fraud, and nothing short 
 of this will suffice) ; cited, Ewart, Estop. 
 84, Mews' E. C. L., Cook, Corp. 157, 2 id. 
 335. 
 
DATUM POSTS. 
 
 201 
 
 Leading Cases. — 375. Pasley. 
 
 But the prevailing rule is that a reckless 
 misrepresentation imposes liability. 
 
 Whart. Conts. 241; Leake, 188; §§ 97, 
 101, Hughes' Conts. ; Squib Case. 
 The representation must actually deceive, 
 Lewis, 151 Mass. 345, 21 Am. St. 454, 
 Huff. & W. Conts. 306. This element is 
 the same in equitable estoppel. Pickard ; 
 Horn ; Page : 191. 
 The speaker is only responsible to the person 
 he addressed. Henry, 95 Me. 24, 49 At. 
 .58, 85 Am. St. 365-391, ext., n. See 
 Thomas ; Langridge. 
 Expressions of opinions as fraud. Hedin, 
 62 Minn. 146, 54 Am. St. 628, n., 35 L. R. 
 A. 417-441, ext. n., 1 Page, 96-97. 
 Elements of misrepresentation. Ewart es- 
 toppel. Jenkins v. Long; Chandelor; 
 Southern Development Co., 125 U. S. 247 ; 
 Crocker, 164 111. 282, 56 Am. St. 196: 
 note, stating Tuck v. Downing, sub, Har- 
 ris v. Tyson ; Langridge v. Levy; Polhill 
 d. Walter; Horn v. Cole; Pickard v. 
 Sears; Collen v. Wright; Pasley v. Free- 
 man; Taylor v-._Asb.ton; Smith v. Mar- 
 rable; Moak, Torts, 551, Cool. Torts, 554- 
 594, Kerr on Fraud, 94-100, 2 Add. Torts, 
 1174-1232. 
 Debauching a girl and inducing another to 
 marry her. ignorant of the facts, is action- 
 able. Kujek, 150 N. Y. 176, 34 L. R. A. 
 156, n., 55 Am. St. 670, n. ; Fargo Gas- 
 light Co., 4 N. Dak. 219, 37 L. R. A. 593- 
 616. Allen v. Flood (illustrations). 
 Corporation directors; prospectus; repre- 
 resentations of; action for deceit. Scott v. 
 Dixon (1859), 7 Rul. Cas. 523, n. ; Peek 
 v. Gurney (1873), L. R. 6 H. L. Cas. 377, 
 7 Rul. Cas. 527, Cook, Corp., q. v., Mews' 
 E. C. L. ; 1 Page Conts. 114 ; Keech ; Derry 
 v. Peek (1889), 14 App. Cas. 337, 12 
 Rul. Cas. 250-298, n.. Mews' B. C. L., 
 q. v.; Cook, Corp., g. v.; Finch, Cas. 522 ; 
 Smith, Torts, 456; 1 Page Conts. 56, 108. 
 Asserted knowledge; when evidence of intent 
 to deceive. Chatham Furnace Co. ; Moak, 
 Torts, 550-553 : cases ; Swentzel v. Bank 
 (1895), 147 Pa. 140, 5 Am. R. R. & Corp. 
 Rep. 645-668, ext. n., 30 Am. St. 718 n., 
 15 L. R. A. 305-317, n., 2 Cook, Corp. 
 702, 1 Kinkead, Torts, 135 ; Houston, 122 
 N. C. 365, 65 Am. St. 699, n., Cook, 
 Stockh. 701-703 (bank directors liable 
 for representing insolvent bank solvent) ; 
 Gomer, 58 N. B. 135, 46 L. R. A. 244, 
 n. (liability of bank directors) ; Polhill v. 
 Walter; Crane, 48 Kans. 259, 15 L. R. A. 
 795 : cases, n. Right to rely on published 
 statements of banks. Hindman, 98 Fed. 
 562, 48 L. R. A. 210, n. Cook, Corp., q. v. 
 Inducing purchase of corporate stock. 
 Hindman, 50 C. C. A. 623, 112 Fed. 931, 
 57 L. R. A. 108, Cook, Corp., q. v. 
 
 Marriage induced by pretense of being un- 
 married is actionable. Morrill, 68 Vt. 1, 
 33 L. R. A. 411, n. 
 
 Certificate of architect as to work and 
 materials, if erroneous, is actionable. 
 Corey, 166 Mass. 279, 55 Am. St. 401, n. 
 
 Pleading and proving scienter; it must be 
 alleged and proved. Griswold, 126 Pa. 
 353, 12 Am. St. 878, n. ; Cf. Tyler, 111 
 Ky. 191, 54 L. R. A. 418; 1 Chit. PI. 
 . 137 ; Shippen, 122 U. S. 576. See Squib 
 Case. 
 
 Silence or failure to state facts as consti- 
 tuting fraud. Chicora, 91 Md. 144, 50 L. 
 R. A, 401, n. 
 
 False representations, generally. Jenkins v. 
 
 Leading Cases. — 375. Pasley. 
 
 Long; Fitzsim'mons v. Joslin; 3 Suth. 
 Dam. 1163-1180; Moak, Torts, 519-563; 
 2 Sedgk. Dam. 439-442 ; 8 Bncyc. PI. & 
 Pr. 884-913 ; B. v. Wheatley ; 12 Rul. Cas. 
 235-298 ; Tuck, sub, Harris : 380 ; Crock- 
 er, supra. 
 Important rule. Deceit; fraudulent repre- 
 sentations; elements of. If A. fraudu- 
 lently makes a representation which is 
 false, and which he knows to be false to 
 B., meaning that B. shall act upon it, and 
 B., believing it to be true does act upon 
 it, and thereby suffers damage, B. may 
 maintain an action against A. for the de- 
 ceit; and this is true although the repre- 
 sentations were made to the public, and 
 B., an individual, was deceived thereby. 
 Ewart, Estop. 69, 127, Cook, Corp. 
 
 Gerhard v. Bates (1853), 2 El. & Bl. 
 476 (75 E. C. L. R.), 20 L. & Eq. 129; 
 Mews' E. C. L. ; Whart. Neg. ; Wood, 
 Nuis. ; 1 Add. Torts, 12, 49 ; 2 id. 400 ; 
 Kerr on Fraud, 54, 326 ; Bigl. Fr. 90 ; 
 Bigl. Cas. Torts, 38, 39, Cool. Torts, 565, 
 585 ; Bauman, 51 111. 381 ; Peabody, 7 
 Allen, 56; Nounnan, 81 Cal. 1, 6 L. R. A. 
 219, n. Deceit. Bigl. Fraud, 1-92 ; 
 Chandelor v. Lopus ; Ewart, Estoppel (able 
 resume) . 
 Misrepresentations by officers of corpora- 
 tions. A., an officer of a corporation, by 
 false representations held out to the pub- 
 lic, induced B., an individual, to purchase 
 stock. B. was damaged by such purchase 
 because of the false representations of A. 
 Held, that B. may recover from A. for the 
 deceit. Gerhard, supra. 
 Cheats; false pretenses. R. v. Bryan; R. v. 
 Wheatley. Promise made with no inten- 
 tion of keeping it. Page Conts. 102. 
 Marriage contracts; concealment of afflic- 
 tion with an incurable abscess is ground 
 for a rescission. Willard v. Stone (1827), 
 7 Cow. 22, 17 Am. Dec. 499-498, n., Suth., 
 Sedg., Dam. ; Chit., Pars., Bish., Conts., 
 Smith, Conts., Whart. 73, 253 ; 3 Encyc. 
 PI. & Prac. 683-694. And likewise of un- 
 chastity of the woman. Foster v. Han- 
 chett (1896), 68 Vt. 319, 54 Am. St. 886, 
 n. See Van Houten. 
 llmportant bibliographical observations. Pas- 
 ley is a great case and leads to volumes. 
 We may pursue it through tables of cases, 
 and if in the directions next noted we will 
 find it at random in many books, e. q. 12 
 Me. 262, 28 Am. Dec. 177-178 (with Chan- 
 delor), and also in 10 Vt. 219, 33 Am. 
 Dec. 219 ; 1 Met. 1, 35 Am. Dec. 339 ; 10 
 Ohio, 469, 36 Am. Dec. 106 (Paisley or 
 Pasley) ; 4 Ala. 21, 37 Am. Dec. 735 ; 6 
 Met. 246, 39 Am. Dec. 731 ; 1 How. 
 (Mass.) 328, 40 Am. Dec. 86; 9 Met. 
 83, 43 Am. Dec. 370 iChandelor), 
 27 Me. 308, 46 Am. Dec. 602, 606 ; 1 
 Strobh. 220, 47 Am. Dec. 551, 553 ; 
 16 Ala. 785, 50 Am. Dec. 205 (Chan- 
 delor), 208, 608, etc. And this plan is the 
 same in all series with tables of cases 
 cited or with tables of citations, and ac- 
 cordingly we trace the question through 
 any work or set of reports, and as in 
 Lyon v. Briggs (1883) 14 R. I. 222, 51 
 Am. Rep. 372, 4 L. R. A. 159. And we 
 may find it in volumes that are without 
 tables of cases cited, e. g., Cottrill, citing 
 Pasley.'] 
 
202 
 
 DATUM POSTS. 
 
 Leading Oases. — 
 
 376. JONES V. JUST' (1868), L. B. 3 
 Q. B. 197, 9 B. & S. 141, Ans. Conts., 
 Beach, Chit., Ada., Ham. 93, 467, 468, 
 Whart. 221-224, 905, Hughes, Willlston, 
 Sales, 631, 23 Rul. Cas. 466, 2 Mech. Sales, 
 2 Benj. 984, Bigl. Fraud, 2 Kent, 480 ; 
 McQuaid v. Boss. 22 L. R. A. 197, 198, 
 ext. n., 13 L. R. A. 494; 151 N. Y. 485, 
 37 L. R. A. 801; Rollins: — N. C. — , 
 68 L. R. A. 441-446; Kellogg: 110 U. S. 
 108-119 ; 1 Page Conts. 164, Mews' B. 
 C. L., 165 Pa. 554, 44 Am. St. 674 ; Dush- 
 ane, 120 U. S. 630, Suth. Dam. 675 (stat- 
 ing rule in Hadley) ; 7 S. C. Ct. B. 696, 
 sub, Pasley (sale of rags infected with 
 small-pox) . 
 
 Jones stated: Caveat emptor; warranty. 
 Jones & Co. bought of J. and paid him 
 for several bales of Manilla hemp, yet to 
 arrive from Singapore. When it arrived 
 it was so damaged as to unfit it for the 
 article desired or its ordinary uses ; it 
 was damaged 75%. For this damage J. 
 was sued, although he had never seen it, 
 and did not know its condition. Held, 
 goods must not only correspond to the 
 • specified description, but must also be sal- 
 able or merchantable under that descrip- 
 tion. Bierman, 151 N. T. 482, 37 L. B. A. 
 799 : cases ; 70 L. B. A. 653-666. 
 
 Warranty; Caveat emptor; warranty of qual- 
 ity sometimes implied. Caveat emptor 
 generally applies to the quality of goods 
 sold, unless there is an express warranty. 
 Chandelor ; Hopkins ; Morley ; Pasley ; 102 
 Am. St. 602-625, ext. n. 
 
 Implied warranty that thing sold is of the 
 description specified. Frith Co., 133 Ala. 
 583, 91 Am. St. 54, n. ; Plow Works, 90 
 Wis. 590, 603, 606 (citing Jones). 
 
 Merchantable quality is warranted. Mur- 
 chie, 155 Mass. 60, 31 Am. St. 526, n., 14 
 L. B. A. 492 ; Bulwinkle, 27 S. C. 376, 13 
 Am. St. 645, n. (sale of corn means as if 
 words were added "corn warranted 
 sound"). Blackwood, 76 Cal. 212, 9 Am. 
 St. 199, n. ; Holloway : 120 Pa. 583, 6 Am. 
 St. 737 ; Groetzinger, 165 Pa. 578, 44 Am. 
 St. 676, n. 
 
 Common carriers; their liability for their 
 vehicles. Ingalls. 353. Also, liverymen 
 for vehicles and horses. Id.; Winterbot- 
 tom. 
 
 Inspection of an article is no acceptance if 
 it is to be of a certain description. Co- 
 lumbian, 84 Md. 44, 33 L. R. A. 103 ; 
 Jordan : 324. See Caveat emptor. 
 
 377. HOBLET V. ATTENBOROTJGH 
 (1849), 3 Exch. 500, Williston, Sales, 624, 
 1 Pars. Conts. 592, 593, Chit., Whart. 
 230, Sto., Clark, 776, Hughes, Benj. 
 Sales, 2 .Add. Torts, 614, 2 Kent. 478, 
 479, Mews' E. C. L. 
 
 Sales; warranty; implied warranty of title. 
 Jones, 2 Ben]. Sales, 929-1012. See Ca- 
 veat emptor; Expressio eorum, etc. Im- 
 plied warranty on sale of corporate stock. 
 McClure, 165 N. Y. 108, 53 L. R. A. 153, 
 ext. n. 
 
 378. HOPKINS V. TANQUERAY (1854), 
 13 C. B. 130 (80 E. C. L. R.), 2 C. L. 
 R. 842, 26 Eng. Law & Eq. 254, 1 Pars. 
 Conts. 599, 1 Chit. 408, 646, 2 id. 630, 
 Ham. 108, Sto. 1051, Hughes, 2 Mech. 
 
 Leading Cases. — 378. Hopkins. 
 
 Sales, q. v., 2 Benj. Sales, 929, 2 Add. 
 Torts, 1183, Mews' E. C. L. 
 Hopkins stated: Sale; warranty. War- 
 ranty must be during treaty of sale, or, if 
 subsequent to sale, it must be upon a suf- 
 ficient consideration. See Mills : 316. 
 Hogins ; Jones ; Morley ; Caveat emptor. 
 
 379. HOGINS V. PLYMTOH (1831) 11 
 Pick. (Mass.) 97, Laws. L. C, Simp. 138, 
 Ans. Conts. 300, 1 Pars. 602, 613, 1 Chit. 
 151, 633, 638, 641, 646, Sto., Clark, 671, 
 Hughes; Bodwell, 66 Vt. 101, 6 Am. St. 
 162, 2 Mech. Sales, 2 Whart. Ev. 940, 
 942, 2 Benj. Sales, 931, 935, 967. 
 
 Hogins stated: H. bought of P. an invoice 
 of wine and paid for it. P. delivered the 
 wine and afterward made out and sent H. 
 a memorandum describing it as "good, fine 
 wine," but it was otherwise, and H. sued 
 upon a warranty founded on a memoran- 
 dum. Held, he could not recover. Caveat 
 emptor. 
 
 Sales; warranty. Warranty must be dur- 
 ing course of sale, else there is no con- 
 sideration. Cady, 62 Mich. 157, 4 Am. 
 St. 834 ; Cumber ; Hopkins ; Lampleigh; 
 Rann. 
 
 Sale; contract in writing cannot be varied 
 nor added to by oral evidence showing a 
 warranty not in the writing. McCray, 99 
 Mich. 269, 41 Am. St. 599, n.. 4 Wigm. 
 Ev. 2434; 1 Ell. Ev. 580; 17 Cyc. 596, 
 598. See Oral Evidence. Parol (oral) 
 evidence of warranty outside of deed. 
 Green, 71 Wis. 54, 5 Am. St. 194, ext n. 
 
 Warranties not implied by law cannot be 
 added*by oral evidence. DeWitt, 134 IT. 
 S. 306 (an express warranty excludes all 
 others). Seitz : 141 U. S. 510; Lower v. 
 Hickman, — Ark. — , 64 Cent. L. J. 64: 
 cases; (instructive case). 
 
 380. HARRIS v. TYSON (1855) 24 Pa. 
 347, 64 Am. Dec. 661, Blanch. Cas. 
 Mines, 351. See note to Woollam, White 
 & Tud. Lead. Eq. Cas., Cool. Torts, 558, 
 Chit. Conts., Ham. Laws. 232, Whart, 
 Clark, 326, 327, Page 157-162, Hughes, 
 Conts., Bigl. Fraud, 33, Bisph. Eq. 213, 
 2 Pom. 903, 926, 928. 
 
 Harris stated: Grantor and grantee; Caveat 
 emptor. This maxim applies in sales of 
 real estate. Cleves ; Smith ; Pasley ; Sim- 
 plex commendatio non obligat. 
 
 One to whom representations are made, and 
 who afterwards inspects land for himself, 
 buys Caveat emptor. Farrar, 135 U. S. 
 609-621, Ans. Conts. 150 : cases ; 2 Add. 
 Conts. 914, 1 Sug. Vend. 8, Bigl. Fr. 33 ; 
 Williams, 24 Mich. 335 ; Crocker, 164 111. 
 282, 56 Am. St. 196, n., stating Southern 
 Devel. Co., 125 U. S. 247 ; also, Shap- 
 pirio, 192 U. S. 232, 241 (instructive 
 case) ; Bro. Max. 773 ; Irvine, 7 Bell, 
 Scotch App. 186, 3 Eng. L. & Eq. 17. 
 17 L. T. 32, 1 Pars. Conts. 578 ; Wil- 
 liams, 23 Fla. 143, 11 Am. St. 345, n. ; 
 Hoist, 161 Mass. 516, *42 Am. St. 442 
 (as to railroad train service) ; Clark, 158 
 U. S. 505-531; Tuck v. Downing (1875). 
 76 111. 71, 8 Mor. Min. Rep. 83, Ans. 
 Conts. 156; cited, Bigl. Fr. 14, 19, 64, 2 
 Pom. Eq. 879. Elements of misrepre- 
 sentation. Southern Development Co., 
 supra. Buyer — vendee — is not bound to 
 disclose what he knows. Whart. Conts. 
 250. See Caveat Emptor. 
 
DATUM POSTS. 
 
 203 
 
 Leading Cases. — 
 
 381. DUTTON V. GERRISH (1851), 6 
 Cush. 89, 55 Am. Deo. 45-49, n., Whart. 
 Conts. 906, Hughes' Conts. Chit. Conts., 
 
 1 Pars. Conts. 612, 3 Suth. Dam. 848, 
 Moak, Torts, 250, Thomp. Neg. ; Davidson, 
 11 Colo. 585, 7 Am. St. 269, 1 Wash. R. P. 
 
 544, 3 Kent, 468, Tay. L. & T. 382, 383, 
 
 2 Wood, L. & T. 381, 2 Page Conts. 1225, 
 § 143a, Hughes' Conts. 
 
 Landlord and tenant; implied covenants; 
 Caveat emptor. Lease of a warehouse 
 does not warrant its fitness for any use by 
 implication. Dutton. A landlord only 
 warrants title and that he will not dis- 
 turb his tenant's possession. Cleves ; 
 Smith. See Caveat emptor; Wakrant ; 
 Bro. Max. 774. 
 
 Oral evidence inadmissible to alter or vary a 
 writing. Dutton ; Cleves ; Pym : 53 ; Jones, 
 Construe. Conts. 134. See Oral Evi- 
 dence. 
 
 388. SMITH V. MASKABLE ("Bug 
 Case") (1843), 11 Mees. & Wels. 5, 2 
 Dowl. N. S. 810, Car. & Marsh. 479 (41 
 E. C. L. R.), 9 Rul. Cas. 444, 12 M. & 
 W. 78 ; 63 R. R. 493 ; 1 Pars. Conts. 611, 
 1 Chit. 514, 2 Add. 697, 771, Whart. 221, 
 Sto., Hughes, 156 Mass. 348, 32 Am. St. 
 640, 16 L. R. A. 51, Mews' E. C. L. ; 
 Moak, Torts, 252 ; Murray, 50 N. J. Law, 
 167, 7 Am. St. 787, n., 3 Kent 464, 468, 
 Bus*. Pers. Inj. 82, 1 Wash. R. P. 544, 
 
 545, 1 Tay. L. & T. 66, 383, 1 Wood, L. 
 & T. 47, 203, 365. 
 
 Smith stated: Lady M. rented furnished 
 apartments of S., which were infested 
 with bed bugs, discovered only after ten- 
 ancy began, and resulting in notice from 
 M. to S. of intention to vacate and of 
 quitting the premises upon that ground. 
 The apartments had been rented for five 
 weeks, and S. sued for the entire period. 
 (Cutter : 308.) M. defended, that letting 
 furnished apartments carried by implica- 
 tion a warranty that they were fit ■ for 
 habitation, and if not so, that the tenant 
 may quit without notice. Held, a perfect 
 defense. Cleves. 
 
 Defective drainage (upon the principle in the 
 "Bug Case") is ground for quitting. Wil- 
 son v. Finch Hatton (1877), 2 Ex. Div. 
 336, Moak, Eng. Rep. 488.; Mews' E. C. 
 1 L. 114, 115, Bro. Max. 776. Eviction; 
 what is. Royce, 106 Mass. 201, 8 Am. 
 Rep. 322. 
 
 Smith approved in Wilson v. Hatton, 
 supra; Ingalls, 156 Mass. 348, 32 Am. St. 
 460, n. : cases, 16 L. R. A. 51, n. : stated, 
 Franklin, 118 N. Y. 110, 6 L. R. A. 770; 
 Cleves; Dutton (no warranty against ex- 
 ternal defects not caused by lessor) ; 9 
 Rul. Cas. 436; 16 Am. St. 744. 
 
 Caveat emptor generally applies to a tenant. 
 Cleves. Except furnished apartments. 
 Smith; Bro. Max. 774. 
 
 Landlord and tenant; Caveat emptor; war- 
 ranty. There is an implied warranty in 
 letting furnished rooms that they are fit 
 for occupancy. Smith ; Caveat emptor. 
 
 And lessor is liable for its breach, e. g., if 
 a disease is communicated in. Csssar v. 
 Karutz, 60 N. Y. 229, 19 Am. Rep. 164 ; 
 Busw. Pers. Inj. 84 ; Clifton, 40 W. Va. 
 207, 33 L. R. A. 449, ext. n. (implied 
 covenant in a lease as to the fitness of 
 property for the purpose intended). Fin- 
 
 Leading Cases. — 382. Smith. 
 
 ney: — Ala. — , 6 L. R. A. N. S. 977 
 
 • (cites Caesar). 
 
 Master is liable for exposing his servant to- 
 disease. Kliegel, 94 Wis. 432, 35 L. R 
 A. 249. 
 
 383. CLEVES V. WIILOTIGHBY (1845) 
 7 Hill. (N. Y.), 83, Ans. Conts. 201, 
 Chit. 514, Sto. 1223, 118 N. Y. 112 16 
 Am. St. 746 ; 3 Kent, 468, n., 1 Wash R 
 P. 545, 1 Chit. Conts. 514, Jones, Con- 
 strue. Conts. 139, Busw. Pers. Inj. 83 
 Cited, § 144, Hughes' Conts. 
 
 Landlord and tenant; warranty of premises; 
 Caveat emptor. Condition of premises is 
 not warranted by lessor. 
 
 Cleves ; Collen ; Caveat emptor; Todd. 
 Nor that they are safe. Caveat emptor 
 applies. 
 
 Doyle v. U. P. B. R. (1893), 147 U. S. 
 413, 37 L. ed. 225 ; Hart v. Windsor 
 (1843), 12 Mees. & Wels. 68, 9 Rul. Cas 
 438, 67 R. R. 266 : stated, Smith v. Mar- 
 rable, Bro. Max. 775, 118 N. Y. Ill 16. 
 Am. Dec. 735; Franklin, sub, Smith (and 
 reviewing the latter and Cleves) ; Dutton • 
 Tay. L. & T. 382, Wood, L. & T. 379' 
 Mumford, 6 Cow. 475, 16 Am. Dec. 440 ■' 
 Blake, 15 Mont. 336, 48 Am. St. 671, n. 
 (limitations of covenants) ; Schmalzried 
 97 Tenn. 36, 32 L. R. A. 782; Doyle" 
 supra; Keates v. Cadogan (1871), 10 C. B 
 591 (70 E. C. L. R.), 2 Eng. L. & Eq„ 
 318, Mews' E. C. L. ; cited, 87 Me. 150 
 47 Am. St. 319, Ans. Conts. 155' 
 2 Wh. Ev. 1138, Moak, Torts, 248-257 
 Bro. Max. 776, 787, Wood, Nuis. 139 
 Tay. L. & T. 163, 2 Kent. 482, 3 id 
 468, Sto. Eq. 198, 9 Rul. Cas. 453; Clif- 
 ton, 40 W. Va. 207, 52 Am. St. 872, n. 
 (Caveat emptor applies) : Metzger, 16 Ind. 
 Ap. 454, 59 Am. St. 323, n. ; York, 21 
 Mont. 515 ; 43 L. R. A. 125. Belfour, 1 
 Term Rep. (D. & E.) 310, 1 R. R. 20, 9' 
 Rul. Cas. 436 (tenant must pay, although 
 premises are destroyed) ; Mews' E. C. L. 
 928 (Landlord and Tenant — Rent) ; Po- 
 lack, sub, Actus Dei, etc. ; Hallett. 
 
 Landlord liable to third person for- 
 premises let in a ruinous condition. Todd ; 
 Tarry; Shipley, 92 Am. St. 499-559, ext. 
 n. (able resume). See Heaven; Lang- 
 bridge. 
 
 Furnished apartments are warranted fit for- 
 occupancy. Smith ; Cesar ; Busw. Pers. 
 Inj. Landlord is not bound to keep prem- 
 ises in repair. Ward, 101 Mo. 669, 10' 
 L. R. A. 147, n., 20 Am. St. G50. Nor 
 liable for freezing and bursting of water 
 pipes. Buckley, 103 Ala. 449, 49 Am. St. 
 42, n. ; not liable where there is no latent 
 defect or concealment. Id. 
 
 Liability of landlord for injury to tenant 
 from defect in premises. Hines v. Wilcox 
 (1896), 96 Tenn. 148, 54 Am. St. 823, n. ; 
 34 L. R. A. 824-834, ext. n., stating Dut- 
 ton and Nelson v. Liverpool, etc., Co. ; 
 Sternberg, 93 Tenn. 163, 34 L. R. A. 615- 
 619, ext. n. ; Hamilton, 8 Ind. Ap. 485, n. ; 
 Wilcox, 100 Tenn. 524, 538, 66 Am. St. 
 761, 770, 41 L. R. A. 278 ; 92 Am. St. 217. 
 
 384. FITZSIMMONS V. JOSLItT (1849), 
 21 Vt. 129, 52 Am. Dec. 46 ; Pars. Conts., 
 Bish., Chit., Ham. 122, Whart, Sto. 214, 
 621, Hughes, Sto. Ag., Kerr on Fraud & 
 Mis., Bigl., Benj. Sales, Bisph. Eq., Huffc. 
 Tiff., Reinhardt, Cool. Torts, 560, 2d ed.. 
 
204 
 
 DATUM POSTS. 
 
 Leading Cases. — 384. Fitzsimmons. 
 
 3 Am. Law. Rev. 430. Cited, §§ 147, 148, 
 Hughes' Proc. - 
 
 Agency. Fraud of the agent is the fraud of 
 the principal. Otte, 88 Minn. 423, 97 Am. 
 St. 532 (rule most strictly applied). 
 Credit obtained by deceit is ' actionable. 
 Fitzsimmons; Childs, 63 Vt. 463, 14 L. 
 R. A. 264, n. 
 
 -Purchasing goods on credit, intending not 
 to pay for them, will render one liable to 
 an action of deceit. Swift, 19 R. I. 527, 
 33 L. R. A. 561, 61 Am. St. 791. 
 
 When the title passes, and when one 
 may return consideration and rescind eon- 
 tract and sue in replevin. Sisson, 18 R. 
 I. 212, 21 L. R. A. 206, n. 
 
 Sales of chattels induced by fraud are viti- 
 ated even as to bona fide purchasers. Don- 
 aldson, 93 U. S. 633, Ans. Conts., 156, n., 
 
 1 Benj. Sales ; notes, 25 Am. Dec. 611- 
 616 ; Fechheimer, 37 Fed. 167, 2 L. K. A. 
 153, n., Bish. Torts, 930, 2 Mech. Sales. 
 See Root, 13 Wend. 570, 28 Am. Dec. 482 ; 
 Lickbarrow: 394; Sturge, 2 Mylne & K. 
 195, 39 Bng. Rep. 918, Bigl. Fr. 187, 308, 
 
 2 L. R. A. 154, n. ; Allegans contraria, 
 ■etc. : Max. No. 16, Hughes' Proc. 
 
 A principal is bound by such repre- 
 sentations of his agent as are part of the 
 res gestm. Whart. Ag. 162. 
 
 One referring to another for information 
 is bound by the communication of such 
 person or referee. 1 Gr. Bv. 182, 2 Whart. 
 Bv. 1190, 1191 ; Pasley ; Colorado Coal 
 Co., 123 U. S. 309, 314 ; Hamet v. Letcher, 
 37 Ohio St. 356, 41 Am. Rep. 519, 15 
 Cent. L. J. 50, Cool. Torts, Bigl. Torts. 
 
 Innocent purchaser parting with a consider- 
 ation is protected on the principle in 
 Lickbarrow v. Mason. Bish. Conts. 673 ; 
 Swift. 
 
 385. COBNFOOT v. FOWKE (1840), 6 
 M. & W. 358, Bro. Max. 793, Kerr on 
 Fraud, 113, 1 Ans. Conts. 67, Pars., Chit., 
 Add., Ham. 122, Whart. 214, 290, Sto., 
 Hughes, 1 Benj. Sales, 681, Mews' E. C. 
 L., Bigl. Fraud, 367, Bigl. L. C. Torts, 
 29 Pom. Eq., Bisph., 2 Kent, 621, 1 Perry, 
 Trusts, 172, Whart. Ag., 2 Herm. Estop. 
 1201, Benj. Sales, q. v. Cited, § 147, 
 Hughes' Proc. ; § 303, Gr. & Rud. 
 
 •Cornfoot stated: Agency; misrepresenta- 
 tions of agents; principal when liable for. 
 F. rented of C. a furnished house adjoin- 
 ing a brothel, of which C. knew, but his 
 agent, Clarke, a house agent, did not. 
 This agent answered F.'s question, "Pray, 
 sir, is there anything objectionable about 
 the house?" with this reply: "Nothing 
 whatever." Upon this assurance of the 
 agent a written contract of lease was 
 signed which did not set forth the agent's 
 representation. The next day F., learn- 
 ing of the adjacent nuisance, immediately 
 notified C. of his intention to abandon the 
 contract. For this C. sued, and F. pleaded 
 fraud and specified that C, by fraud, 
 ■covin and misrepresentation of C. and 
 others in collusion with him, procured 
 the contract. The evidence did not sus- 
 tain the plea of fraud as pleaded, and 
 no such fraud appearing, none could be 
 assumed, and therefore oral evidence was 
 inadmissible to alter or vary the written 
 ■contract. However, a jury found for F., 
 
 Leading Cases. — 385. Cornfoot. 
 
 the tenant, but their verdict was set aside 
 on appeal and a new trial granted, Lord 
 Abinger dissenting. 
 
 Had F. succeeded on his plea of con- 
 spiracy and fraud, then C, the innocent 
 agent, would have been much affected 
 thereby. F. should have pleaded deceit 
 and misrepresentation of the landlord only. 
 Then the written contract could have been 
 attacked. 
 "The jury at the trial found a verdict for 
 the defendant, which was set aside by the 
 court of exchequer, solely upon the ground 
 that the allegation of fraud by the plain- 
 tiff, upon which the defense proceeded, was 
 not proved by the evidence. But if there 
 had been no . allegation of fraud in the 
 case, and' the lessee bad relied not upon 
 positive fraud in the plaintiff, but on a 
 misrepresentation merely, it was not de- 
 nied by the court but that the contract 
 might have been avoided for that cause, 
 and the principal would have been bound 
 by the misrepresentation of his agent." 
 Cornfoot ; Sto. Ag., 139, n. ; Huffc, Reinh. 
 Tiff. 
 
 This case has sometimes been doubted, 
 and sometimes sharply criticised. It 
 might have been more clearly reported. 
 When closely examined, it harmonizes 
 with Fitzsimmons. Yet the contrary is 
 stated. Kerr on Fraud, 113, 114. 
 
 Where an agent ignorantly makes a 
 false statement, the principal knowing its 
 falsity, cannot enforce the bargain ob- 
 tained by such false statement. Whart. 
 Ag., § 167, quoting Cornfoot. 
 
 This case turned upon the pleading and 
 proof. Allegata et probata must corre- 
 spond. 
 The fraud of the agent is the fraud of the 
 principal. Hedin, sub, Pasley ; 35 L. R. 
 A. 417, n. ; Fairchild, 139 N. T. 290, 36 
 Am. St. 701, n., Bigl. Fraud, 361-371, Bro. 
 Max. 793 ; Moak, Torts, 553. 
 Agency; torts; liability of principal for 
 representation of agent. See Collen ; Lake- 
 man ; Thomson ; Respondeat superior; 
 Pickard. 
 The fraud of the agent is the fraud of the 
 principal. Meenan, 52 N. Y. 277 ; Latham, 
 10 Grant (U. C), Ch. Rep. 308; Barwick, 
 L. R. 2 Ex. 259 ; 1 Mews' E. C. L. ; 
 Mackey; L. R. 5 P. C. 394, 9 Moak, Eng. 
 Rep. 202 ; Mews' E. C. L. ; Bigl. Fraud, 
 361-371 ; Fairchild, supra; Fifth Ave. 
 Bank, 137 N. Y. 231, 33 Am. St. 712, n. ; 
 Haskell, 152 Mass. 117, 23 Am. St. 809, 
 n., Moakf Torts, 553 ; Hedin, 62 Minn. 
 146, 54 Am. St. 628, 35 L. R. A. 417, 
 ext. n. 
 They are joint trespassers. Moir, sub, Kirk- 
 wood. 
 Principal liable for agenfs deceit of which 
 principal takes advantage. Merchants' 
 Bank; Hern v. Nichols (1709), 1 Salk. 
 289, Whart. Ag., § 478; Huffc; Ewart, 
 Estoppel, 510 (ostensible agency). 
 Principal bound by agent's malicious or 
 fraudulent torts, when ratified by himself, 
 or expressly commanded. McManus ; 
 Whart. Ag., § 477 ; Tome, 39 Md. 36, 17 
 Am. Rep. 530. 
 
 A principal is not liable for an inde- 
 pendent, unauthorized tort by his agent, 
 
DATUM POSTS. 
 
 205 
 
 leading Cases. — 385. Cornfoot. 
 
 wilfully committed by him, and not within 
 the scope of the agency, nor expressly 
 commanded by the principal. McManus ; 
 Craker ; 1 Kinkead, Torts 67, 68, 71-73 ; 
 Wilson ; Gregory ; Whart. Ag., § 479 : 
 cases, e. g.j where the agent makes an 
 unauthorized arrest. Poulton ; Schmidt v. 
 R. R., 116 La. 311, 7 L. R. A. N. S. 
 162-175. 
 
 Misrepresentation must be relevant and 
 material. Cornfoot ; Pasley ; Jenkins ; 
 Bish. Conts. 652 ; Horn. 
 386. HARRIS V. BROOKS (1S28), 21 
 Pick. 195, 32 Am. Dec. 254, 2 Am. Lead. 
 Cas. 425-482, Rand. Com. Paper, Danl. 
 Nego. Insts., Pars. N. & B., 2 Suth. Dam., 
 Brandt, Sur., 3 Kent, 123 ; Ewart, Estop. 
 70. Cited, § 147, Hughes' Proc. 
 
 Creditor, deceiving a surety to his in- 
 jury releases him. Carpenter, 9 Met. 511, 
 43 Am. Dec. 405, 2 Am. Lead. Cas. 427- 
 482, Rand. Com. Paper, Pars. N. (surety 
 surrendering security upon assurance of 
 creditor that he is paid, is released) ; 
 Stone v. Compton (1838), 5 Bing. N. C. 
 142 (35 E. C. L. R.), 6 Scott, 346, 3 
 Add. Conts. 1135, 63 Am. St. 328, Rand. 
 Com. Paper, Pars. N., 2 Brandt, Sur., 
 Pars., Chit. 
 
 Fraud and deception will discharge a surety. 
 Passnacht, 18 Ind. Ap. 80, 63 Am. St. 
 322-338, ext. n., 2 Brandt, Surety, 401- 
 425; Page, 137 N. Y. 307, 21 L. R. A. 
 409-416, ext. n. (fraud of surety or ob- 
 ligee). 
 387. FIELD T. HOLLAND (1810), 6 
 Cranch (U. S.), 8, 3 L. ed. 136, 1 Am. 
 L. C. 334-363, n. ; Chit. Conts., Whart., 
 Laws. 415, 3 Page, 1403, Clark, 637, 
 Hughes' Conts., Beach, Ham. 434 ; 112 
 N. Y. 552, 8 Am. St. 784, BenJ. Sales, 2 
 Gr. Ev. 533, Suth. Dam., 3 Rand. Com. 
 Paper, 1502. 
 
 Field stated: Application of payments. 
 Money is to be applied as the debtor 
 directs ; if he does not direct, then as 
 the creditor elects ; and if neither elect, 
 then the law will ' apply it according to 
 equity. 
 
 Mayor, etc. v. Patten ; Arnold v. Poole ; 
 Quicquid solvitur, solvitur secundum 
 modum solventis, etc. ; 2 Gr. Ev. 529-536 ; 
 Devaynes, 1 Mer. 530-611, 15 R. R. 151- 
 169, 3 Eng. Rul. Cas. 329, n. ; Mews' 
 E. C. L., q. v.; Baum, 42 S. C. 104, 46 
 Am. St. 697, n. Application of payments 
 cannot be to illegal claims. Note, 65 Am. 
 Dec. 190 ; Bro. Max. 815. 
 
 Application of payments generally. 2 Benj. 
 Sales, 1101-1114; 12 S. & R. (Pa.) 301, 
 14 Am. Dec. 691-695, n., Suth. Dam., 
 Jones, Mort, Chit. Conts., 5 Am. Law 
 Reg. (N. S.) 193-201, 257-265, 21 Cent. 
 L. J. 473, 54 L. Mag. 21, same art., 3 
 Liv. L. Mag. 739 ; 1 Sto. Eq. 4590-462 ; 
 Perot, 17 Colo. 80, 31 Am. St. 258, n. ; 
 Orleans, 112 N. Y. 543, 8 Am. St. 775, 
 n., 3 L. R. A. 302. 
 
 Creditors may apply if debtors fail to direct. 
 Blake, 83 Me. 129, 23 Am. St. 762,- n., 12 
 L. R. A. 712; Phillips (1890), 78 Tex. 
 378, 22 Am. St. 59, n. ; Frazier, 71 Md. 
 131, 17 Am. St. 516, n., 1 Beach, Conts. 
 390 ; Kotch," 150 111. 212 : stated, 1 Beach, 
 Conts. 398. 
 
 Leading Cases. — 387. Field. 
 
 Mayor Alexandria, etc., v. Patten (1801), 4 
 Cranch, 317, 1 Am. L. C. 330-363, ext. n., 
 
 2 Danl. Nego. Insts. 1252, Pars. N. Chit. 
 Conts., 2 Gr. Ev. 529-532, Benj. Sales, 1 
 Beach, Conts. 397 ; McWhorter, 136 Ala. 
 568, 96 Am. St. 43-82, ext. n. ; Arnold 
 v. Poole (1842), 4 Man. & Gr. 860 (43 
 E. C. L. R.), 2 Scott's N. R. 741, 2 Dow 
 N. S. 574, 61 R. R. 664, Mews' E. C. L., 
 Smith, Conts. 370, cited, 1 Rand. Com. 
 Paper, 74, 327, 1 Pars. N. 163, Pars. 
 Conts., Chit. 
 
 Application of payments. Field ; Mayor, 
 
 etc. ; Quicquid solvitur, etc. 
 Corporations. Corporations must contract 
 
 under seal. This was the former rule. 
 
 Bank of Columbia, sub, Hill v. Boston, 
 
 3 Page, 1412. 
 
 388. WELBORN v. WEAVER (1855), 
 17 Ga. 267, 63 Am. Dec. 235, Whart. 
 Conts. 677, Hughes' Conts., Mech. Ag. 
 240, 1 Dev. Deeds, 292. § 32, Hughes' 
 Conts. 
 Acceptance of a deed is essential to con- 
 summate a realty contract. Brown, 47 
 Neb. 399, 53 Am. St. 532-556, ext. n. ; 
 Morris, 178 111. 9, 69 Am. St. 282. 
 And is essential to transfer title; requisites. 
 Cravens, 116 Mo. 338, 38 Am. St. 606, n. ; 
 Lee, 46 Minn. 49, 12 L. R. A. 171, ext. n. ; 
 Stokes, 118 Ind. 533, 4 L. R. A. 313, n. ; 
 Wilson, 158 111. 567, 49 Am. St. 176; 
 Wilson, 140 Ind. 533, 49 Am. St. 213 
 (may take effect at death of grantor). 
 Delivery of deeds; what amounts to. Tomp- 
 kins, 16 Pet. 106, Add. Conts. ; Parrott, 
 159 Mass. 594, 38 Am. St. 465, n., 22 
 L. R. A. 153, 1 Dev. Deeds, 260-311, 3 
 Wash. R. P. 286-303 ; Martin, 13 Mont. 
 96, 19 L. R. A. 242, n., 40 Am. St. 415; 
 Clavering (1704), 2 Vern. 473, Prec. 
 Chan. 235, Eq. Cas. Abr. 24, pi. 6, 
 Brown, P. C. 122, 23 Eng. Rep. 904, 8 
 Rul. Cas. 576-622, n., Mews' E. C. L. ; 
 Doe d. Garnons v. Knight (1826), 5 
 Barn. & C. 671 (12 E. C. L. R.), 8 Dow. 
 & Ry.. 348, 8 Rul. Cas. 580, n., Mass. 
 E. C. L. ; Bowker v. Burdekin (1856), 11 
 M. & W. 128, 8 Rul. Cas. 599 (escrow; 
 delivery upon condition), Mews' E. C. L. 
 Recording a deed by grantor is no ac- 
 ceptance by grantee. Parmelee, 5 Wall. 
 81; Smith, 116 Wis. 570. When bene- 
 ficial acceptance is presumed with com- 
 munication with grantee. 1 Whart. 
 Conts. 23. 
 Delivery obtained by fraud is unavailing to 
 pass title. Westlake, 184 Mass. 260 (strict 
 case). Delivery and acceptance of deeds. 
 2 Whart. Conts. 677-691 ; Munro, 187 111. 
 346, 54 L. R. A. 864-910, ext. n. ; Brady, 
 197 III. -291, 264, 90 Am. St. 161, n. 
 Delivery presumed to have been made at 
 date.- Purdy, 109 N. Y. 448, 4 Am. St. 
 491, ii. Delivery in escrow. 1 Dev. 
 Deeds, 812-888. 
 
 Commercial paper ; acceptance of. Cool- 
 idge : Commercial Paper. Sales. See 
 Contracts ; Tarling : 404. Contracts by 
 letter. Adams. Contracts under seal. 
 Ellis ; Bish. Conts. 103-139 ; Jackson ; 
 Worrall. Official bonds; delivery of, es- 
 sential. Paxton v. S. (1899), 59 Neb. 
 460, 80 Am. St. 689, n. 
 
206 
 
 DATUM POSTS. 
 
 Leading Cases. — 
 
 389. ELLIS v. ESSON (18S0), 50 Wis. 
 138, 36 Am. Rep. 830-840, 2 Smith, Cas. 
 Torts, 712 : stated, 11 Am. St. 908 : cited. 
 Cool. Torts, 161, Whart. Conts. 1036, 
 Suth. Dam. ; Seither, 125 Pa. 397 ; 11 Am. 
 St. 905-909, n. Cited, §§ 256, 305, 
 Hughes' Proc. 
 Trespass; joint trespassers; sealed instru- 
 ments. Release, under seal, of one joint 
 trespasser is a release of all, regardless 
 of the intention of the parties. This re- 
 sults by reason of a technical rule of con- 
 struction. A seal imports a consideration 
 conclusively. Bronson v. Fitzhugh (1811), 
 1 Hill, 185, Cool. Torts, 161, 1 Beach, 
 Conts. 453, 488. 
 Technical effect of seals. See Collins v. Blan- 
 tern ; Jackson v. Cleveland ; Gibson v. 
 Warden ; Loach, subj Gibson, Abb, 28 
 Wash. 428, 58 L. R. A. 293-308, ext. n., 
 92 Am. St. 866-888, ext. n., 102 Am. St. 
 416. 
 Joint trespassers ; satisfaction by one inures 
 to all when. Colegrove, 6 Duer, 382, 2 
 Smith, Cas. Torts, 669 : cases, citing 
 Guille, sub, Squib case. 117 Ky. 260, 111 
 Am. St. 273-287, ext. n. (is only pro- 
 tan to). 
 Release of a debtor under seal is valid. 
 Bish. Conts., 2 Wh. Bv. 1063, Ans. Conts., 
 Chit., 1 Add. 363-365 ; Bender, 78 La. 
 283, 5 L. H. A. 296, n., Huff. & W., Conts. 
 87, Spitze, 75 Md. 162, 32 Am. St. 378, n. 
 Seal essential. Kidder, 33 Pa. 268, Huff. & 
 
 W., Conts. 625. 
 Release of one joint debtor releases all. 
 Brown, 5 Dutch. (N. J.) 514, 80 Am. Dec. 
 226, 3 Sm. Lead. Cas. 2103 (9th ed.) ; 
 Hale, 145 Mass. 482, 1 Am. St. 475, Hufl. 
 & W., Conts. 487. Contra, Whittemore, 
 124 N. T. 565, 21 Am. St. 708, n. Even 
 if a contrary intention is manifest. Hale. 
 Accord by one defendant operates for others 
 not sued. Cumber : 311 ; Jackson, 66 N. 
 J. 319, 55 L. R. A. 87. Estoppel by deed 
 (sealed instruments). Christmas. Con- 
 tracts under seal. Bish. Conts. 103-139 ; 
 Welborn ; Loach, 1 Dev. Deeds, 242-254. 
 Release generally. "Suth. Dam., Bish. Conts. 
 843-849, 2 Wh. Ev. 1063-1071 ; sub, Cum- 
 ber. See Tender. 
 
 An offer under seal is irrevocable ; a 
 seal imports a consideration. McMillan, 
 33 Minn. 257, Huff. & W. Conts. 54 ; 
 Cooke: 321. 
 390. WORE, ALL V. HUHH (1851), 5 
 N. Y. 229, 55 Am. Dec. 330-345, ext. n. ; 
 Pars. Conts., Chit., Ans. 47, Bish., Ham., 
 Laws., Clark, Story, 245, Hughes' Conts., 
 1 Dev. Deeds, 271, 314. 357, 3 Wash. R. 
 P. 293, 299, 3 Kent, 48, 4 id. 450. 
 Worrall stated : Escrow deed can only be 
 in favor of a third person. 
 
 Ans. Conts. 47 ; Carter, 51 Kan. 9, 37 
 Am. St. 259, n., 1 Dev. Deeds, 312-333. 
 
 Oral evidence inadmissible to add to or 
 subtract from a deed delivered to a 
 grantee. Worrall ; Pym : 52 ; Jackson v. 
 Cleveland. 
 
 Seal added to instrument not by law 
 required to be sealed, is surplusage. Wor- 
 rall ; Gibson. 
 
 Agent upon parol authority affixing a 
 seal does not vitiate the principal's con- 
 tract if it is not by law required to be 
 
 Leading Cases. — 390. Worrall. 
 
 sealed. Worrall. Power of partner to so- 
 bind partner by specialty. Worrall. 
 
 Agent without authority in writing may 
 sign contract for principal and bind him, 
 in contracts required by Statute of Frauds, 
 to be in writing. Worrall; Coles v. Tre- 
 cothick (1804), 9 Vesey, Jr. 234, 32 Eng. 
 Rep. 592, 7 R. R. 167 ; 1 Smith, Torts, 
 233 : Mews' E. C. L. ; cited, Chit. Conts., 
 Bish. Conts., Pars , Benj. Sales, Browne, 
 Stat. Frauds, 1 Gr. Ev. 268, 2 Gr. Ev- 
 60, 61 ; note, 55 Am. Dee. 343, 36 Am. 
 St. 418, 1 Dev. Deeds, 357 ; Hibblewhite. 
 Delivery of a deed binds a vendor. Wor- 
 rall. 
 
 Acceptance of a deed binds a vendee. 
 Worrall ; note, 55 Am. Dec. 345 ; 2 Warv. 
 Vend. 662 : cases. Res ipsa loquitur. 
 391. KEMBLE v. FAKBE5 (1829), S 
 Bing. 141 (19 E. C. L. R.), 3 M. & P. 
 425, 31 R. R. 366, Sedgk. Lead. Cas. 
 Dam. 432, Brah Dam. 36, Ans. Conts. 
 255, 256, 3 Pars., 1 Beach, 629, Ham. 471, 
 472, Laws. 467, Clark, Sto. 1472, 2 Page 
 Conts. 1172-1177, Hughes' Conts., 1 Pom. 
 Eq. 443, 1 Sedgk. Dam. 399, 12 Oreg. 12, 
 50 Am. St. 875, 1 Suth. Dam. q. v., 
 Greenh. Pub. Pol., 2 Gr. Ev. 257, 258, 2 
 Beach, Eq. 1017, 83 Md. 211, 55 Am. St. 
 339, Mews' E. C. L. 
 Cited, §§ 20, 180, 297, Hughes' Proc. 
 Cited, § 67, Gr. & Rud. 
 
 Kemble stated: .Stipulated (fixed) damages; 
 parties may contract for. Parren, an 
 actor, engaged to Kemble, a theater man- 
 ager, to serve him for a fixed period — 
 four seasons. Each agreed to pay the 
 other 1,000 francs as liquidated and as- 
 certained damages, and not as a penalty 
 or penal sum, or the return thereof if 
 either defaulted his undertaking. During 
 the second season F. defaulted and K. sued 
 him for the whole 1,000 francs. Held, he 
 could not recover ; that, notwithstanding 
 the clear and forceful expression of the 
 contract, nevertheless the sum fixed was a 
 penalty and not fixed damages, and that 
 the parties must have so contemplated. 
 Sloman; Peachy. Condon, 47 Kan. 126, 
 13 L. R. A. 670-676, ext. n. ; Wilhelm, 
 21 Oreg. 194, 14 L. R. A. 297, n. ; Mc- 
 Curry, 108 Ala. 451, 54 Am. St. 177, n. ; 
 Wilson, 83 Md. 203, 55 Am. St. 339, n. ; 
 Tayloe, 7 Wheat. ; Monmouth Park, 55 N. 
 J. Law. 132, 39 Am. St. 626, n., 19 L. 
 R. A. 456, n. (intent governs and must 
 be clear, else a penalty and not liquidated 
 damages are presumed) ; Hennessey, 152 
 111. 505, 43 Am. St. 267, n. (intention 
 sought ; words do not control. Verba 
 intentione debent inservire. 
 Penalty or liquidated damages. Taylor, 83 
 Minn. 523, 85 Am. St. 473 ; Chicago House 
 Wrecking Co., 45 C. C. A. 433, 106 Fed. 
 385; Stillwell: 73 Ark. 432, 108 Am. St. 
 42-64, ext. n., 13 Cyc. 89. 
 Penalties and forfeitures ; equity looks to the 
 
 intent rather than the form. 
 392. PEACHY V. DUKE OF SOMERSET 
 (1Z15), 1 Strange, 447, 2 Lead. Eq. Cases, 
 (W. & T.) 2014-2072, ext. n. ; 6 Rul. 
 Cas. 540-563, ext. n. ; Mews' E. C. L. ; 
 Pom. Eq., Bisph., Sto., Beach, 1 Dill. 
 Corp. 352. Cited, § 122, Hughes' Conts.. 
 § 297, Hughes' Proc. ; § 67, Gr. & Rud. 
 
DATUM POSTS. 
 
 207 
 
 Leading Cases. — 
 
 393. SLOMAN V. WALTER (17S4), 1 
 Brown, C. C. 418, 28 Eng. Rep. 1213, 2 
 Lead. Eq". Cas. (W. & T.) 2022-2072, ext. 
 n.,' 6 Rul. Cas. 543, 562, n. 3 Pars. Conts. 
 174, Sto. 1472, 2 Page 1167-1188, Hughes' 
 Conts., 1 Sedgk. Dam. 397, 1 Suth. Dam. 
 282, 2 id. 474, Greenh. Pub. Pol. 756, 
 Pom. Bq., Sto., Beach., 2 Gr. Ev. 258, 
 5 Mews' B. C. L., 498. § 297, Hughes' 
 Proo. 
 
 Sloman. Stipulated damages. 1 Suth. Dam. 
 279-299. Penalties. 2 Suth. Dam. 470- 
 481. Fines and penalties. 2 Beach, Eq. 
 1013-1021. 
 
 Forfeitures are odious. Strained and over- 
 riding construction is made against them. 
 Howard v. Harris ; Harper : 218 ; Beach, 
 Eq. 1013 ; Vt res magis valeat, etc. ; Bost- 
 wick; Madison; 111 Wis. 483 (Construc- 
 tion favors penalty). Damages may be 
 fixed and liquidated: Modus et conventio, 
 etc. Greenh. Pub. Pol. 470 ; Bish. Conts. 
 1448-1461. Construction ; intention of 
 parties sought ; Verba intentione, etc. 
 Harper : 218 ; Roe v. Tranmarr. 
 
 394. LICEBABROW V. MASON (MA- 
 SON t. Lickbarrow) (1878), 2 Term Rep. 
 (D. & E.) 63, 5 id. 367, 6 id. 131, 1 H. Bl. 
 357, 6 East. 21, 1 R. R. 25 ; Ewart, Estop. 
 177-186 (able resume), Mech. Sales, q.v., 
 1 Smith, L. C. 1159-1254, ext. n., 1 id. 
 693-766, 11th ed. (stoppage in transitu), 
 Willlston, Sales, 19, 4 Rul. Cas. 756-789, 
 n„ 7 Rob. Prac. 495, 2 Kent, 541-549, 1 
 Pars. Conts., 3 id. 273, 443, Ans. 230, 
 1 Chit. 277, 601, 608, 2 id. 1370, 1371, 
 Whart. 973, Sto., Clark, 543, 2 Add. 603, 
 Smith, 480, Hughes' Conts. ; Knox, 148 
 N. Y.- 441, 31 L. R. A. 779 ; 1 Danl. Nego. 
 Insts. 803, 2 id. 1634, 1727, 2 Pars. N. 
 34, 80, 212, Ror. Interstate Law, 90, 
 Bisph. Eq. 252, Poor on Bills of Lading, 
 q. v., 11 L. R. A.. 348, Lind. Part. 652, 
 Mews' E. C. L. (Stoppage in transitu.) 
 
 Cited, p. 3 ; §S 154, 184, 329, Hughes' Proc. ; 
 §§ 40, 150, 151, 180, 288, 307, Gr. & Rud. 
 
 Lickbarrow stated: Trover for a cargo of 
 corn. Plea, the general issue. One Free- 
 man, of Rotterdam, Zealand, sent an or- 
 der to Turings, of Middleburg, to ship a 
 quantity of corn to Liverpool, which they 
 accordingly did, July 22, 1786, by the ship 
 "Endeavor," whose captain, Holmes, ac- 
 knowledged the delivery of the corn by 
 four bills of lading in the usual form, 
 unto orders or assigns, one of which he 
 kept, and two of which were indorsed in 
 blank by Turings and sent to Freeman 
 "With an invoice of the corn shipped, and 
 the fourth was retained by Turings. Dur- 
 ing the carriage, F. became bankrupt, and 
 T. learning of this sent the bill of lading 
 they had to Mason, of Liverpool, with a 
 special indorsement to deliver the corn to 
 Mason for T.'s benefit. Mason was T.'s 
 agent and stood in his shoes. F., the 
 ■bankrupt, had sent two bills of lading to 
 Lickbarrow, duly negotiated, for a valua- 
 ble consideration. L. stood claiming un- 
 der F. as an innocent purchaser for a 
 valuable consideration, and he therefore 
 demanded the goods, and brought this ac- 
 tion. The court held for plaintiff that a 
 Zona fide assignment of a bill of lading 
 
 Leading Cases.— 394. Lickbarrow. 
 
 defeats the vendor's right to stoppage in 
 transitu. 
 
 Sewell v. Burdick (Burdick v. Sewell) 
 (1884), 10 App. Cas. 74-106, 4 Eng. Ral. 
 Cas. 758-789, n.. Mews' E. C. L. ; Halifax 
 v. Wheelright (1875), 10 Exch. 183 
 (blanks left in check if filled by holder, 
 the drawer must stand the loss, as in 
 Young v. Grote). Ewart, Estop. 185. 
 
 "Where one of two equally innocent persons 
 must suffer from the fraud of a third, he 
 who first trusted must first suffer." Lick- 
 barrow ; Maclay : 327. Culpa tenet suos 
 auctores. 190 Mass. 27, 112 Am. St. 309, n. 
 
 This principle founds the liability of the 
 principal for the acts of the agent. 
 
 McManus, 1 Wat. Tres. 49 ; Young v. 
 Grote ; Angle v. Ins. Co. ; Bisph. Eq. 252 ; 
 City Nat. Bank v. Kusworm ; 7 Rob. Prac. 
 459 ; U. P. R. R., 45 Neb. 57, 50 Am. St. 
 451 ; Knox v. Eden, etc., 148 N. Y. 441, 
 31 L. R. A. 779 (excellent resume) ; Lyn- 
 donville, 68 Vt. 81, 54 Am. St. 874, n. 
 
 The one most at fault and who might 
 have protected himself must first suffer. 
 German-Am. Savings Bank, 17 Wash. 315, 
 38 L. R. A. 259. Twyne's Case is founded 
 upon this idea. 10 Rul. Cas. 494 ; Ryall ; 
 Allegans, etc. 
 
 A perfect deed must be delivered before 
 title passes. Adding one's name as a 
 grantee and seals without authority, will 
 convey no title, not even to a bona fide 
 purchaser. Westlake, 184 Mass. 260 
 (strict case). 
 
 Drawee of forged checks to a fictitious payee, 
 paying them to one who received the 
 money, where the payee was not identified 
 by the recipient, may recover from him. 
 Canadian Bank, 30 Wash. 484, 60 L. R. 
 A. 955 ; Union Trust Co. v. Preston. This 
 phase of ' negligence is important in con- 
 tract. 
 
 The foregoing rule is very analogous to the 
 principle in Scott v. Shepherd {Squib 
 Case) and its cognates. Qui primum pec- 
 cat Hie facit rixam. Hadley v. Baxen- 
 dale. 
 
 Stoppage in transitu; negotiation of 
 bills of lading to defeat It. Bird, 4 Exch. 
 (Eng.) 798: cited, Bro. Max. 871; Mis- 
 souri R. R., 82 Tex. 195, 27 Am. St. 861 
 (negotiability of bills of lading; stoppage 
 in transitu) ; 2 Mech. Sales, 1224-1613. 
 
 Purchaser of chattels from one clothed with 
 indicia of ownership, for a valuable con- 
 sideration, takes title. 
 
 Allegans, etc. ; Ewart, Estoppel, 181 ; Bent- 
 ley ; Bish. Conts. 673 ; Fitzsimmons : 384 ; 
 Sturge, 2 Mylne & K. 195, 39 Eng. Rep. 
 918, Mews' E. C. L. ; Bigl. Fraud 308, 
 Bisph. Eq. 252, 10 Rul. Cas. 194; 1 Wat. 
 Tres. 409, 410 ; 1 Mech. Sales, 154-170 ; 
 Bentley, 70 L. R. A. 787-796. 
 
 The rights of a bona fide purchaser rest 
 upon this equity. It is a leading rule in 
 the law of commercial paper. It is a 
 leading rule of equitable estoppel. 
 
 Swift ; Bassett ; Horn v. Cole ; Pickard ; 
 10 Rul. Cas. 494 ; Ewart on Estoppel, 
 citing the last two cases, and also Young 
 v. Grote, Miller v. Race and cognate 
 
208 
 
 DATUM POSTS. 
 
 Leading Cases. — 394. Lickbarrow. 
 
 It also vitiates otherwise valid proceed- 
 ings. Watkins v. S. ; Ex dolo malo, etc. 
 Delivery to carrier is delivery to eon- 
 • signee ; who may sue tor loss or injury to 
 freight. Grove, 8 How. 429, 12 L. ed. 
 1142, n. 
 
 Stoppage in transitu; right of, how enforced. 
 Lickbarrow ; 2 Mech. Sales, 15-24, 1613 ; 
 Benj. Sales, 2 Ror. R. R. 1333-1345, Ror. 
 Inter-State Law, 100-103, 1 Pars. Conts. 
 295-609 ; Harris, 85 Tex. 254, 34 Am. St. 
 796, ii., 2 Kent, 541-549; Kingman, 84 
 Mich. 608, 11 L. R. A. 347, n. ; Sewell 
 v. Burdick (Burdick v. Sewell), supra. A 
 wrong-doer, delivering goods to a carrier, 
 gives the latter no lien against owner. 1 
 Pars. Conts. 252 ; Bentley. See Calye's 
 Case : 356. Bills of lading, negotiability 
 of. Douglas, 86 Ky. 176, 9 Am. St. 276, 
 n. Corporate stock, if lost and sold by a 
 thief, no title passes. Sub, Bentley. 
 
 Equitable estoppel. Horn ; Mitchell ; Young ; 
 Loffus ; Horn v. Baker ; Allegans, etc. ; 
 Bwart on Estoppel. See Estoppel ; 
 Equitable Estoppel. 
 
 395. BASSETT v. XTOSWOBTHY 
 (1673), Rep. Temp. Finch, 102, 23 Eng. 
 Rep. 55, 2 Lead. Eq. Cas. (W. & T.) 1- 
 228, ext. n. (discussing equitable assign- 
 ments and bona fide purchaser), 21 Rul. 
 Cas. 702-847, ext. n. ; 10 Rul. Cas. 540 ; 
 Bausman, 38 Minn. 197, 8 Am. St. 665 ; 
 1 Pom. Eq. 200, 417, 2 id. 581, 682, 740, 
 742, 744, 761, Bisph. 39, 263, .266, 267, 
 1 Perry, Trusts, 218, 2'20, Adams, 149, 
 163. 
 
 Cited, §§ 147, 148, 150, 184, 326, 329, 
 Hughes' Proc. ; §§ 289, 307, Gr. & Rud. 
 
 Bassett stated: An heir-at-law complained 
 of a purchaser from a devisee under the 
 will of his ancestor to discover a revoca- 
 tion of the will. The purchaser pleaded 
 that he bought bona fide for a valuable 
 consideration, without notice of any revo- 
 cation. Held, good. Bassett ; Phillips, 4 
 De G., F. & J. 208, 45 Eng. Rep. 1164, 10 
 Rul. Cas. 533, n. ; Mews' E. C. L. ; 1 
 Beach, Eq. 382-393. 
 
 Bona fide purchasers; notice; purchasers of 
 choses in action, personal property, real 
 estate and commercial paper, when pro- 
 tected. Le Neve : 396 ; Bell v. Twilight ; 
 Agra Bank v. Barry ; Fair v. Stevenot ; 
 Swift (commercial paper) ; Allegans, etc. ; 
 Assignatus utitur, etc. 
 
 Corporate stock; bona fide purchaser of; 
 notice; secret trusts attach to. Winter, 
 89 Ala. 544, 3 Am. R. R. & Corp. Rep. 
 208-217, n., 7 So. 773. 
 
 Chattels; bona fide purchasers of; who are. 
 Henderson's Distilled Spirits ; Fitzsim- 
 mons : 384 ; Ex dolo malo, etc. ; 1 Benj. 
 Sales, 649, n. Bentley. 
 
 ""Where one of two equally innocent persons 
 must suffer from the fraud of a third, he 
 who first trusted must first suffer." Bas- 
 sett ; Lickbarrow ; Allegans, etc. ; Qui prior 
 est tempore, etc. : He who is first in point 
 of time has the better title. In wquali 
 jure melior, etc. : Where there is equal 
 equity, possession must prevail. Bassett, 
 1 Lead. Eq. Cas. 53, Bro. Max. 713, Bisph. 
 Eq. 264; Rice, 23 L. J. 289, 2 Drew. 73, 
 
 Leading Cases. — 395. Bassett. 
 
 10 Rul. Cas. 507 ; Mews' E. C. L. ; North- 
 ern Counties, 26 Ch. Div. 482, 10 Rul. 
 Cas. 507 ; Mews' E. C. L. 
 Commercial paper.- Swift: cases. One can- 
 not sell a right he does not possess. 2 
 Lead. Cas. 50-61, 70, 71; Assignatus 
 utitur, etc. ; Bentley. 
 
 Payment must be actual and full, and this 
 must be averred ^specifically. 2 Lead. Eq. 
 Cas. 74-85 ; Swift ; Tillman, 78 Tex. 597, 
 22 Am. St. 77, n., 11 L. R. A. 628 ; Young, 
 94 Mo. 581, 3 Am. St.. 405, n. (full pay- 
 ment must be made) ; Baker, 157 U. S. 
 212 (bad faith shown by small considera- 
 tion) ; 1 Beach, Eq. 389 ; Adams, Eq. 151 ; 
 Tillman, supra; Peay, 48 S. C. 496, 59 
 Am. St. 731, n. See Sto. Eq. PI. 697 (al- 
 legation may be waived). 
 
 Consideration is looked to, and protec- 
 tion is measured by that; payment after 
 notice not effectual, and will not protect. 
 Tillman, supra; 1 Beach, Eq. 388, 389. 
 
 Equitable assignee ; how affected by no- 
 tice of other equities. Bassett ; Field v. 
 Mayor : 84 ; Bisph. Eq. 261-279 ; 1 Beach, 
 Eq. 319-345; 10 Rul. Cas. 411-614; 
 Brice: 398. 
 
 Equitable owner may avail himself of 
 want of notice. Coyler, 5 H. L. Cas. 909, 
 10 Eng. Rep. 1159, Mews' E. C. L., Bisph. 
 Eq. 258. 
 
 Notice of assignment should be given 
 by assignee to debtor to protect himself 
 from subsequent dealing between the as- 
 signor and debtor. Note, Bassett ; 1 Beach, 
 Eq. 343 ; Foster, 159 Pa. 477, 39 Am. St. 
 696 (mortgagor may pay mortgagee before 
 notice of his assignment). One of several 
 assignees first giving notice gains pri- 
 ority. Dearie, 3 Russ. 1-60, 38 Eng. Rep. 
 475 : cases ; 10 Rul. Cas. 478 ; Mews' E. 
 C. L. ; 2 Pom. Eq., p. 965; Ryall ; Comp- 
 ton. 
 
 Chattel mortgagees are governed as 
 other assignees or vendees. Wright, 51 
 Minn. 321, 38 Am. St. 504 (notice of 
 prior equities effects) ; Fair v. Stevenot. 
 Equitable assignments. 7 Encyc. PI. & 
 Pr. 731-786. 
 Equitable set-off. The right to this existing 
 by reason of the insolvency of the debtor, 
 it cannot be affected by his assignment or 
 his assets. Citizen's Bank, 92 Tenn. 437, 
 36 Am. St. 96, n. 
 Judgments, assignments of; rights of as- 
 signee. Western Nat. Bank, 90 Ga. 339, 
 35 Am. St. 210, n. 
 Bona fide purchaser must plead his rights 
 affirmatively. Holdsworth, 113 Mo. 508, 
 35 Am. St. 719, n. ; 1 Beach, Eq. Pr. 346. 
 
 Subsequent purchaser is presumed to be 
 a purchaser for value. Anthony, 130 111. 
 128, 17 Am. St. 281-290, n. : cases. 
 396. LE NEVE V. IE NEVE (1747), 
 Ambler, 438, 3 Atk. 646, 1 Ves. 64, Ld. 
 Eq. Cas. (W. & T.) 109-223, 26 Eng. Rep. 
 291, 21 Rul. Cas. 774-847, ext. n., Mews' 
 E. C. L. ; 2 Pom. Eq. 594, 2 Beach, Eq. 
 346, 362, 10 Rul. Cas. 521-524 (priori- 
 ties) ; Agra Bank v. Barry, Mech. Ag. 
 721, Dembitz, Real Prop., Pom. Eq., 1 Sto. 
 Eq. 186, 397, Bisph., Lind. Part. 141, Dev. 
 
DATUM POSTS. 
 
 209 
 
 Leading Cases. — 396. Le Neve. 
 
 Deeds, 1 Perry on Trusts, 217, 222, 223, 
 Adams, Eq. 141-158, 1 Beach, Conts. 354. 
 
 Cited, §§ 73, 117, 147, 148, 150, 180, 184, 
 326, 329, 396, Hughes' Proc. ; §§ 38. 124, 
 289, 307, Gr. & Rud. 
 
 Bona fide purchasers of real estate; registry 
 of deeds; possession. Its effect to impart 
 notice of the rights of the occupant. Qui 
 prior est tempore, potior est jure : He 
 who is first in point of time is first in 
 point of right. 4 Kent, 170. 
 
 Williamson v. Brown ; Pair v. Stevenot ; 
 Bassett ; 94 Tex. 641 ; Scotch Lumber Co., 
 132 Ala. 598, 90 Am. St. 953, n. (unreg- 
 istered deed) ; In azquali jure melior est 
 conditio possidentis. See Priority. Pur- 
 chases without value. Bigl. Fraud, 307- 
 315 ; 1 Beach, Bq. 346-393 ; Olds v. Cum- 
 mings, 31 111. 188. 
 
 Notice to agent is notice to the principal. 
 
 ■ Le Neve ; Ross ; 1 Beach, Bq. 371 ; Herm. 
 Ex. 327-349. A purchase if tainted in 
 part is tainted in toto. 1 Beach, Conts. 
 354. 
 
 Bona fide purchaser of real estate at execu- 
 tion or judicial sale ; how far protected. 
 Riley, 97 Cal. 575, 21 L. R. A. 33-54, 
 ext. n. ; Herm. Ex. 327-349 ; Ewart, 
 Bstop. 149-153. One is, who buys at his 
 own execution sale. Pugh, 152 Ind. 252, 
 71 Am. St. 327. 
 
 Copyrights; registration of, essential. Law 
 of priority, of rights and of bona fide 
 purchasers attaches to. 2 Pars. Conts. p. 
 257 (6th ed.), 4 Am. & Bng. Encyc. Law, 
 161 (outline citation to law of^ in 4 Am. 
 & Bng. Encyc. Law. 147-168) ; 7 Rul. 
 Cas. 66-143. See Copyright. 
 
 Lis pendens'; notice from. Tilton; Lis pen- 
 dens, 1 Beach, Eq. 374-381. Equitable 
 assignments. 7 Encyc. PI. & Pr. 730- 
 786 ; Bassett. 
 
 Priorities. Qui prior est tempore, etc. ;• 
 10 Rul. Cas. 394-570 (assignments of 
 choses in action ; equitable assignment) ; 
 Brice (priorities) : 398. 
 
 Purchaser for value without notice ; 
 equitable estate. Phillips, 4 De G. & J. 
 208, 10 Rul. Cas. 533, n. ; Mews' B. C. L. 
 1355, supra. Pre-existing debt as a con- 
 sideration. Sub, Cumber : 311 ; Swift. 
 
 Railroad mortgages; injured persons have 
 priority over. Green R. R., 97 Ga. 15, 33 
 L. R. A. 806, 54 Am. St. 378-433, ext. n. 
 
 Pleading of; facts must be pleaded showing 
 one is a bona fide purchaser. 1 Beach, 
 Eq. Pr. 346 : Bassett. 
 
 397. BTAXiIi v. BOWIES (or BOILE) 
 (1750), 27 Eng. Rep. 1074: cases; 1 
 Ves. 348, 1 Atk. 165, 26 Eng. Rep. 107: 
 cases; 2 Lead. Eq. Cas. (W. & T.) 1533- 
 1674, n., 10 Rul. Cas. 494-501, Sto. Eq., 
 Pom., Bisph., Pars., Conts., Chit., Add., 
 Ham. 357, Whart. 839, Sto. 467, Clark, 
 534, Hughes' Conts., Greenh. Pub. Pol., 
 Wade, Notice, 433, Sto. Ag. 229, 1 Wash. 
 R. P. 34-36, Perry, Trusts, 68, 345, 438, 
 33 L. R. A. 267. 
 
 Cited, § 158, Hughes' Proc. 
 
 Assignments. Notice to debtor of assignment 
 is necessary to protect assignee from fur- 
 ther equities. Compton v. Jones ; Qui 
 prior est tempore, etc. 
 Notice of an assignee's rights charges one 
 with all loss and liability after such no- 
 li 
 
 Leading Cases. — 397. Ryall. 
 
 tice. Ryall ; Bassett ; Le Neve ; Swift ; 2 
 Pom. Eq. 753. 
 
 Preference may be given a creditor by as- 
 signment. Barbett, 147 U. S. 476, Mar- 
 bury, 7 Wheat. 557, 5 L. ed. 522, n. ; 
 Greenh. Pub. Pol. 151, Bish. Conts. 1209, 
 Bigl. Fraud, 532, 2 Sto. Eq. 1036, 1037. 
 See Fraud ; Conveyances ; Twyne's Case. 
 If a small part is retained to defeat the 
 effect of the preference, this will be held 
 a fraud. 3 L. ed. (U. S.) 614, n. 
 
 Assignment by a debtor of all his property 
 gives the U. S. the preference. Field v- 
 U. S., 9 Pet. 182, 9 L. ed. 94, n. 
 
 Choses in action. Ans. Conts. 217-234, 10 
 Rul. Cas. 411-570, 7 Encyc. PI. & Pr. 732, 
 733 ; Warmstrey ; Grain ; 2 Chit. Conts. 
 1352, 1371; 10 Rul. Cas. 411-570. 
 
 Assignors and assignees. Bish. Conts. 1177- 
 1199 ; 10 Rul. Cas. 411-570. Assignments 
 generally. 1 Beach, Eq. 319-345, 7 
 Encyc. PI. & Pr. 730-736 ; Assignatus; 
 Warmstrey. 
 
 398. BBXCE V. BANNISTEE (1878), 3 
 L. R., Q. B. 569, 10 Rul. Cas. 411-425, 
 n., Mews' E. C. L. ; 1 Pars. Conts. 238, 
 Ans. 225, Ham. 357, Clark, 536, Laws. 
 360, Hughes. See notes to Lampleigh ; 
 Miller v. Race ; 1 Smith, L. C, 1 Beach, 
 Eq. 374. Cited, § 326, Hughes' Proc. 
 
 Brice stated: Bannister hired one G. to. 
 build a ship, to be paid for in install- 
 ments. G. assigned one installment to 
 Brice, who presented it to Bannister, who 
 refused to take notice of it, and after- 
 wards paid G. the amount due. Afterwards 
 Brice sued B. for the assigned install- 
 ment. Held, he could recover. 
 
 Assignments operate without the assent nf 
 the debtor. Ans. Conts. 245 ; Grain. 
 
 A garnishee of a debtor is defeated if 
 he is notified of the assignment before he 
 answers the garnishee summons. Drake 
 on Attachment, § 528. 
 
 Row v. Dawson (1749), 1 Ves. Jr. 331-332, 
 27 Eng. Rep. 1064, 2 Lead. E,q. Cas. (W. & 
 T.) 1551, Mews' E. C. L., 1 Danl. Nego. 
 Inst. 16a, 23, 1 Pars. Conts. 234, 3 id. 
 300, 2 Chit. Conts. 1360, 1 Pars. N. B. 
 336, 1 Pom. Eq. 137, 169, Bisph. 164. 
 172, 2 Sto. 1044-1047, 1 Beach, 321-326,' 
 1 Perry, Trusts, 68. 
 
 Assignments of choses in action cognizable 
 in equity. Row ; 1 Beach, Eq. 319, 345 j 
 Zabriskie, 13 N. Y. 322, 64 Am. Dec. 541, 
 n. ; Warmstrey. 
 
 Accounts or earnings may be assigned. Sand- 
 wich Mfg. Co., 83 la. 567, 14 L. R. A. 
 126, n. Wages to be earned may be- 
 Rodijkeit: — O. — 5 L. R. A. N. S. 565- 
 570. 
 
 Salary of a public officer cannot be assigned. 
 Nat. Bank, 86 Tex. 303, 40 Am. St. 833- 
 837, n., Schwenck, 46 N. J. Bq. 560, 19 
 Am. St. 438 ; Bliss, 58 N. Y. 442, 17 Am. 
 Rep. 273 ; Greenh. Pub. Pol. 351-355 1 
 Dickinson. 
 
 Mechanics' liens may be assigned. Davis, 
 18 Wall. 659. An assignee may consoli- 
 date and file liens. Kinney, 58 Minn. 455, 
 14 Am. St. 528, n. 
 
210 
 
 DATUM POSTS. 
 
 Leading Cases. — 398. Brice. 
 
 Torts; damages arising out of, are assigna- 
 ble. Moore, 32 Cal. 590, 7 Mor. Min. Rep. 
 355; Pom. Rem. 147, Bliss, PI. 38-43; 
 Actio ■personalis, etc. 
 
 Mere personal torts that die with the person 
 are not assignable. Slauson, 4 Wash. 783, 
 31 Am. St. 948, n. ; Hunt, 47 Minn. 557, 
 14 L. R. A. 512, n. ; Actio personalis. 
 
 Right to complain of fraud is non-assigna- 
 ble. Sanborn, 92 Cal. 152, 27 Am. St. 
 101, n. ; Whitney, 94 Cal. 146, 15 L. R. 
 A. 813, n. (right to set aside judgment). 
 
 Right to recover land out of which one is 
 defrauded may be assigned. Connecticut 
 Ins., 117 Mo. 261, 38 Am. St. 656, n. See 
 Assignatus, etc. 
 
 399. WieGLESWOBTH V. DALL1SON 
 (1779), 1 Doug. 201, 1 Smith, Lead. Cas. 
 928-965, 1 id. 545-578, Uth ed. (reviews 
 English cases), 15 Rul. Cas. 542, Laws. 
 Us. & Cus. 169, 2 Pars. Conts. L. 754, 
 Chit. Ans. 248, 1 Add. 244, Jones, Con- 
 strue. 115, 1 Beach, Ham. 394, Smith, 
 ■56, Clark, 580, Sto. 824, 1282, Hughes' 
 Conts., Bro. Max. 416, 8 Rul. Cas. 304, 
 356, 1 Wash. R. P. 137, 2 Whart. Bv., 
 2 Gr. Ev. 251, Mews' E. C. L. 
 
 ■Cited, §§ 225, 231, Hughes' Proc. 
 
 Wigglesworth stated: Custom; usage. A 
 custom that a tenant may have the way- 
 "going crop is valid unless repugnant to 
 the lease. 
 
 Hutton, 1 M. & W. 466-479, 2 Gale, 
 71, 15 Rul. Cas. 548 ; Mews' E. C. L. ; 
 Bro. Max. 415, Smith, Conts. 56. 
 
 Construction ; usage ; custom ; evidence. 
 "See Optimus interpres, etc. ; Jones, Con- 
 strue. 96-109 ; Smith, 114 N. Y. 190, 
 11 Am. St. 627, n., 4 L. L. R. A. 392, n. ; 
 McClusky, 20 Or. 108, 10 L. R. A. 
 785, n. 
 
 Custom and usage as elements in contracts. 
 Bish. Conts. 438-460, 2 Gr. Ev. 248-252 ; 
 Smith, supra; 8 Rul. Cas. 274-359, n. ; 
 1 Beach, 747-770. 
 
 Must not contradict contract. Phoenix Ins., 
 49 Kan. 178, 33 Am. St. 360, n. ; 8 Rul. 
 Cas. 275-309 : cases ; Yates, 6 Taunt, 446 
 (1 E. C. "L. R.) ; 16 R. R. 653, Mews' 
 E. C. L. ; q. v. and sub nom, Yates v. 
 Pym; 2 Marsh, 141 (4 E. L. R.) ; Holt, 
 N. P. 95 (3 E. C. L. R.), 8 Rul. Cas. 
 , 349-359 ; Alhambra, 6 P. D. 68, 8 Rul. 
 Cas. 351, n. ; Mews' E. C. L. 242 ; 1 
 Beach, 733-757. 
 
 JParol {oral) evidence to affect writing. Pym: 
 52 ; Cooper, 19 Wend. 386, 32 Am. Dec. 
 512, Laws. Us. & Cus. 339. 
 
 Leases; custom is admissible if consistent 
 with the terms in the lease. Wiggles- 
 worth, Senior, Holt, N. P. 197 (3 E. C. 
 L. R.), Mews' E. C. L., Bro. Max. 414; 
 Webb, 2 Barn. & Aid. 746, Mews' E. C. 
 L., Bro. Max. 415. 
 
 The rule in the Wigglesworth Case is, 
 analogous to that in res adjudicata, where 
 the rule is, that whatever was tried may 
 be shown by evidence aliunde if consist- 
 ent with the record pleaded in defense. 
 Mondel : 77. See Pym ; Woollam ; Oral 
 Evidence ; 1 Gr. Ev. 275. 
 
 ■400. BIACKETT V. ROYAL EX- 
 CHANGE ASSUR. CO. (1832), 2 Cromp. 
 & Jer. 244, 2 Tyr. 266, Laws. Us. & Cus. 
 413, 14 Rul. Cas. 179 (construction), 2 
 
 Leading Cases. — 400. Blackett. 
 
 Pars. Conts. 467, 663, 1 Chit. 157, 1 
 Add. 244, 3 id. 1158, 1 Beach. 140, 734, 
 757, Jones, Construe. 64, 68, 104, Smith 
 68, 69, Sto., Clark, 586, Laws. 385, 
 Hughes' Conts., Sto. Ag. 74, Whart. Ag. 
 223, 2 Whart. Ev. 958, 972, n., 13 Mews' 
 E. C. L. Note, Wigglesworth, 1 Smith, 
 L. C..946, 3 Kent, 260. 
 
 Blackett stated: Cannot vary a writing. In- 
 surance on ship, boat, etc. Evidence of 
 usage of the underwriters that they never 
 paid for the loss of boats on the outside 
 of a ship slung upon the quarter is inad- 
 missible, it being shown that a boat is al- 
 ways carried there, and that it is the 
 proper place for a boat. S. P. in Myers, 
 3 El. & El. 306 (107 E. C. L. R.), 14 
 Rul. Cas. 656 (interpretation). Mews' E. 
 C. L. 
 
 Every legal contract is to be interpreted 
 in accordance with the intention of the 
 parties making it. Verba intentione de- 
 bent inservire. And usage, when it is rea- 
 sonable, uniform and well settled, not in 
 opposition to fixed rules of law, not in 
 contradiction to the express terms of the 
 contract, is deemed to form a part of the 
 contract and to enter into the intention 
 of the parties, when it is so far estab- 
 lished and so far known to the parties 
 that it must be supposed that their con- 
 tract was made in reference to it. 
 
 Walls, 49 N. Y. 464 : cases, 10 Am. Rep. 
 407, 1 Beach, Conts. 434, 753, 757, Laws. 
 Us. & Cus. 747-770; Newhall, 114 N. Y. 
 140, 1 Gr. Ev. 292, 294, Bro. Max. 682, 
 889, 890, 2 Pars. Conts. 541. Consider 
 the Wigglesworth, Harper, Pym and Wool- 
 lam cases with the above. Hughes' Proc. 
 
 Custom; usage; must not contradict con- 
 tract. Blackett; Wigglesworth; Hackley, 
 50 Mich. 43, 21 Am. Law. Reg. (N. S.) 
 109-118, n.. 2 Kent, 255 ; Malpas ; The 
 Schooner Reeside (1837), 2 Sum. 567: 
 stated, Bro. Max. 928, 931 ; Vogt. 
 
 Requisites of usage — custom. It must be 
 established, certain and uniform, contin- 
 ued, general, known, reasonable and ac- 
 quiesced in, reasonable, consistent and not 
 repugnant to the contract, accord with 
 and not contravene statutes, consistent and 
 not conflict with public policy. Laws. 
 Conts. 383-385 (able resume). Construc- 
 tion by parties; estoppel. Practical con- 
 struction. Communis error facit jus. 1 
 Beach, 724: cases. 14 Rul. Cas. 577-833. 
 Ancient instruments, if obscure or 
 doubtful, usage may be resorted to to ex- 
 plain, but not control the meaning. Chad, 
 2 Brod. & Bing. 403-409 (6 E. C. L. R.), 
 23 R. R. 477, 14 Rul. Cas. 691-699, Mews' 
 E. C. L. 
 
 401. SMITH V. WILSON ("RABBIT 
 CASE") (1832), 3 Barn. & Adol. 728 (23 
 E. C. L. R), Laws. Us. & Cus. 335, Mews' 
 E. C. L., 3 Pars. Conts. 655, 1 Add. 245, 
 2 Pars. 663, Ham. 394, 462, Laws. 383, 
 Whart. 735, Sto., Clark, 582, 1 Chit. 132, 
 143, 144, 1 Add. 245, Hughes' Conts., 
 2 Whart. Ev. 940, 972. 
 
 Smith stated: S. leased a rabbit warren of 
 W. and was to have at the end of his ten- 
 ancy £60 for each 1,000 rabbits left on 
 the warren. These were estimated at 19,- 
 
DATUM POSTS. 
 
 211 
 
 Leading Cases. — 401. Smith. 
 
 200, but W. only had to pay for 16,000, 
 for the reason that by usage in counting 
 rabbits on a warren, it takes 1,200 to 
 make a thousand. This usage was upheld 
 as sound law. 
 Custom; usage. Usage is admissible to ex- 
 plain a contract. Pym ; Soutier, 1 Chit. 
 Conts. 118, Bro. Max. 928, 931. Contem- 
 poranea expositio, etc. 
 
 402. SOTTTIEB V. XELLEKMAS 
 (1853), 18 Mo. 509, Laws L. C. Simp. 
 81, 85, Ans. Const. 326, Ham. 394, Huff. 
 & W., Conts. 508, Laws. 383, Clark, 582. 
 Hughes' Conts., Jones, Construe. 64, 115, 
 2 Whart. Bv. 961. 
 
 Soutier stated: S. bought 4,000 shingles, 
 and for these eight bundles were deliv- 
 ered containing only 2,500 shingles, as S. 
 Counted them. But in counting shingles 
 so many are estimated in a bundle, and 
 this usage was upheld, and S. was com- 
 pelled to accept the count. 
 
 Evidence; usage; custom. Usage may be 
 shown to explain a contract. Optimus in- 
 terpres rerum usus : Bro. Max. 917 ; 
 Cooper ; Smith ; Blackett ; Pym. See 
 Oral Evidence. Oral evidence admissi- 
 ble to explain meaning of words. Jones, 
 Construe. 54-68. 
 
 403. COOPER v. KANE (1S3S), 19 
 Wend. 386, Laws. Us. & Cus. 339, 32 
 Am. Dec. 512, Laws. L. C. Simp. 80, 
 Laws. Conts. 384, Clark, 581, Ham. 394, 
 Partridge v. Ins. Co. Hughes' Conts. 
 
 Usage and custom. Usages of trade may be 
 shown ; terms and incidents may be added. 
 Held, sand excavated belonged to the ex- 
 cavator by reason of custom. Wiggles- 
 worth. 
 
 Usage; elements of. Mech. Ag. 281. Will 
 not justify commissions to both parties, 
 for usage must be moral and not contra- 
 vene the doctrine of Salus populi, etc. 
 Keech; Governor (1848), 5 Gratt. (Va.) 
 24, 50 Am. Dec. 95-105. 
 
 Consent makes law; acquiescence in a cus- 
 tom contrary to law often available. Gov- 
 ernor. Custom cannot oppose a statute. 
 Noble : 251. Modus et conventio. 
 
 Usage; custom; specially pleaded, if relied 
 upon. Governor ; Morowske, 53 N. Y. St. 
 Rep. 220. New matter must be pleaded. 
 McKyring: 33. 
 
 404. TABLING v. BAXTER (1827), 6 
 Barn. & Cress, 360 (13 B. C. L. R), 9 
 D. & R. 272, 23 Rul. Cas. 257, Adams, 
 Sales, 809, Williston, Sales, 25, Pars. 
 Conts. Chit. 521, Sto. 1010, Hughes' 
 Conts., Mews' B. C. L. 451, 1 Benj. Sales, 
 316, 2 id. 1126, 2 Kent, 492a, 23 Rul. 
 Cas., 1 Mech. Sales, 483, 484, 725. § 186a, 
 Hughes' Proc. 
 
 marling stated: Sales; when title passes. 
 T. sold to B. on Jan. 4, 1825, a stack of 
 hay in the field for £145, to be paid on 
 Feb. 4, and before the stack was cut, the 
 hay to stand in the field until May 1st. 
 On Jan. 20th the hay was burned, and 
 the important question arose, who should 
 bear the loss. Held, it was B.'s loss ; 
 that this was an immediate and not a 
 prospective sale ; that nothing more re- 
 
 loading Cases. — 404. Tarling. 
 
 mained to be done before title vested ; 
 that the title passed on Jan. 4th. 
 
 Foley, 98 Ala. 176, 39 Am. St. 39-44, 
 n. ; C. v. Hess, 215. Cuius est dominium, 
 ejus est periculum. Hallett : 308S. 
 
 There must be a thing in esse capable of be- 
 ing delivered or assigned else there is no 
 sale. 1 Benj. Sales, 76-84; Low, 108 
 Mass. 347, 11 Am. Rep. 357 (sale of fish 
 to be caught carries no title) ; Wheeler's, 
 2 Mete. (Ky.) 474, 74 Am. Dec. 42 lj 2 
 Add. Conts. 644. The product of a whaling 
 expedition may be assigned. 2 Sto. Eq. 
 1040. See Assignatus, etc. ; Forsyth, 112 
 Ga. 199, 81 Am. St. 28-46, ext. n. ; Hib- 
 blewhite ; Everman, 52 Miss. 653, 24 Am. 
 Rep. 682, 3 Cent. L.' J. 735. 
 
 Sale; what . constitutes. S. v. Wingfield 
 (1893), 115 Mo. 428, 37 Am. St. 406, n. ; 
 Bretz, 117 Pa. 589, 2 Am. St. 706, n. 
 Acceptance; essential. Billin, 9 Colo. 394 ; 
 White: 303. Price. 1 Mech. Sales, 204- 
 214. 
 
 Sale of part of a mass; title does not pass 
 ■until it is separated. New Eng. Dressed 
 Meat, 165 Mass. 328, 53 Am. St. 516. 
 
 Payment must be made, unless waived, be- 
 fore title passes. Drake, 136 Ala. 261, 
 96 Am. St. 25. 
 
 405. GIBBS V. BENJAMIN J! 1872), 45 
 Vt. 124, 13 Am. Law Reg. (N. S.) 93, 
 n. ; Sto. Conts. 1009, Hughes' Conts., 1 
 Mech. Sales, 367, 714. 
 
 Gibbs stated: Action on book account for 
 cord wood which G. alleged he sold B. 
 and which was carried away by the flood 
 waters of Lake Champlain while they were 
 negotiating about the amount and value 
 of the wood. G. and B. had met and taken 
 measurements, and were making estimates 
 and offers when the wood was lost. The 
 last proposition was that B. should take 
 the wood at 204 cords at $3.50 per cord, 
 which he refused to do. Held, that the 
 title did not pass ; that whenever anything 
 remains to be done by either or both par- 
 ties precedent to the delivery, the title 
 does not pass. 
 
 Sales; when bargain is complete the title 
 passes at once, unless something remains 
 to be done. Tarling ; Acraman ; Tempest. 
 
 Acceptance, full and complete, is essential 
 for contract. White : 303 ; Anson, Conts. 
 2, Wambaugh, Study of Cas. 113, Bish. 
 Conts. 329. Contracts must be certain. 
 Wain : 331 ; Kelley : 307 ; Sturdivant : 
 410; Cooke: 321: cases. See Assent. 
 Non hwc, etc. Of contracts respecting exist- 
 ing chattels not yet identified. 1 Mech. 
 Sales, 694-752. 
 
 406. ACRAMAN V. MOBRICE (or 
 MORRIS) (1849), 8 C B. 449 (65 E. C. 
 L. R.) ; Chit. Conts., Pars. Conts., Add. 
 Conts., 1 Mech. Sales, 508, 1 Benj. Sales, 
 Mews' E. C. L., Whart. Ev., 3 L. R. A. 
 199, 2 Kent, 496; Dunn v. S. (1889), 82 
 Ga. 27, 3 L. R. A. 199, n. 
 
 Acraman stated : M. contracted with one 
 Swift for trunks of fallen trees yet to be 
 separated from the tops. M. made part 
 payment. S. was to separate the tops from 
 the trunks and send the latter to M. But 
 
212 
 
 DATUM POSTS. 
 
 Leading Cases.— 406. Acraman. 
 
 S. became bankrupt and A. was his as- 
 signee. M. afterward entered on and car- 
 ried off all the timber he had paid for, 
 and A., the assignee, sued M. for tres- 
 pass and conversion. Held, M. was guil- 
 ty ; that no title passed so long as any- 
 thing yet remained to be done. See Tar- 
 ling, supra, and C. v. Hess : 215. 
 407. SHINDLER V. HOUSTON (1845), 
 1 DeniQ, 48, 1 N. Y., 261, 49 Am. Dec. 
 316-340, ext. n., Williston, Sales, 824, 
 37 Am. Rep. 19, 3 Pars. Conts. 45, Beach, 
 559, Chit., Clark, 142, Sto. 1008, 1011, 
 Baker, Sales, 1 Mech. Sales, q. v., Benj. 
 Sales, 2 Whart. Bv. 874, 875, Hughes' 
 Conts. 
 Shindler stated: H. contracted for lumber, 
 and at a price exceeding $50. All was 
 agreed upon and finally S. said to H. : 
 "The lumber is yours." H. then told S. 
 to get the inspectors' bill and bring it to 
 him and he would pay the amount, which 
 was accordingly done the next day, when 
 H. refused to pay as he agreed. Then 
 S. sued H. for the price and recovered. 
 Held, a valid delivery and acceptance. 
 Note, 37 Am. Rep. 19. 
 
 Symbolical delivery, when valid ; when 
 sufficient. See Elmore ; King, supra; 
 Twyne's .Case. Sale of trees ; putting ven- 
 dor in possession, sufficient. Leonard, 85 
 Md. 666, 37 L. R. A. 449. See Lyon, sub, 
 Frauds and Perjuries. 
 
 It should be remembered that contracts 
 for more than $50 must be in writing un- 
 der the statute of frauds, unless there is 
 a delivery and acceptance. 
 408. TEMPEST V. FITZGEEALD (1820), 
 3 Barn. & Aid. 680 (5 E. C. L. R), Shir. 
 Lead. Cas. 28, Browne, Stat. Frauds, 326, 
 Chit. Conts., Pars., Add., Sto. 1017, 1385, 
 Hughes' Conts., Ben:"., 2 Whart. Bv. 875, 
 2 Kent, 493, 503, 1 Mech. Sales, 385, 2 id. 
 1489, 12 Mews' E. C. L. 437. 
 Tempest stated: Sales; Statute of Frauds; 
 goods, wares and merchandise. F. was 
 visiting and attending races. He bought 
 a horse of T. for 45 guineas, considered 
 cash, and F. gave orders for future sta- 
 bling and treatment of the horse ; yet it 
 was to remain with T. for a few days un- 
 til F. was ready to return home. In the 
 meanwhile the horse died and T. sued for 
 the price, and F. defended under the Stat- 
 ute of Frauds because the price exceeded 
 £10 (usually $50 in America). There 
 was no acceptance and delivery, nor earn- 
 est money paid. Held, the defense was 
 good ; that no title passed under § 17, 
 Statute of Frauds. See Frauds and Per- 
 juries. 
 
 Contract of sale under the Statute of 
 Frauds. 1 Mech. Sales, 280-474. 
 Acceptance under Statute of Frauds. De- 
 vine, 75 Conn. 375, 96 Am. St. 211-229, 
 ext. n. 
 409. EI.MOBE V. STONE (1809), 1 
 Taunt. 458, Shir. Lead. Cas., Laws. Lead. 
 Cas., Baker on Sales, Browne, Stat. Frauds 
 Chit. Conts., Pars., Bish., Beach, Ads., 2 
 Add. 559, Ham. 301, Sto., Hughes' Conts., 
 Benj. Sales, 2 Whart. Bv. 875, 2 Kent, 1 
 
 Leading Gases. — 409. Elmore. 
 
 Mech. Sales, 385, 386, 2 id. 964, Mews* 
 E. C. L. 
 Cited, I 159, Hughes' Proc. 
 Elmore stated : E., a liveryman and horse 
 dealer, negotiated with S. for the sale of 
 a span of horses for £200. S. represented 
 that he had neither servant nor stable, 
 therefore E. must keep them at the livery 
 for him. Thereupon E. removed the horses 
 from his sales stables into another stable' 
 — his livery stable. When E. sued for 
 the price S. pleaded the Statute of Frauds,, 
 but it was held that such removal was 
 sufficient constructive delivery ; for after 
 that B. held the horses not as owner, but 
 as any other livery-stable keeper might 
 have done. 
 
 King, 35 Ark. 190, 37 Am. Rep. 11- 
 22, n., stating Elmore. See Baldey, sub, 
 Frauds and Perjuries ; 1 Beach, Conts. 
 562. Hurldburd v. Bogardus (1858), 10- 
 Cal. 518 (there must be visible change of 
 possession ; continuance of a former agent 
 in possession is insufficient) ; 1 Chit. Conts. 
 570-573. See Twyne's Case ; Dooley, 180 
 U. S. 126 (from the same appearances,, 
 continuity is presumed). 
 
 Chattel in possession of a third person, 
 e. g., a lessee, may be sold. Corning, 69 
 N. H. 390. 76 Am. St. 178, n. And also 
 of real estate under the modern rule. 
 Kleber, Sales. 
 410. STUBDIVANT v. HULL (1871), 
 59 Me. 172, 8 Am. Rep. 409 ; Mech. Ag., 
 Whart., Huffc, Reinh., Tiff. Ag., Rand. 
 Com. Pap., Da nl., Jones, Construe, Whart. 
 810, Clark, 741. Cited, §§ 20, 186, 186a, 
 202, 215, 2i9, 225, 230, 237, 254, 256, 
 294, Hughes' Proc. ; § 303, Gr. & Rud. 
 
 The question was, who was the maker 
 of this note : 
 "$225.00 Portland, Dec. 20, 1869. 
 
 "Four months after date I promise to- 
 pay to the order of Sturdivant & Co. two 
 hundred and twenty-five dollars with in- 
 terest. Value received. 
 U. S. I. R. John F. Hull, Treas. 
 
 Stamp. St. Paul's Parish." 
 
 25 cts. 
 Held, this was Hull's individual note, 
 and that "Treas.," etc., were words de- 
 scriptio personw. 
 
 Falk v. Moebs (1888), 127 U. S. 597- 
 607 : cases (a very instructive case) : 
 Casco Bank, 139 N. T. 307, 36 Am. St. 
 705, n. ; Jefts. 
 
 Again the question arose thus : 
 "Twelve months after date the president, by 
 order of the Board of the Hustonville and 
 Bradfordsville Turnpike Road Co., prom- 
 ises to pay Mahaly Caphart three hundred 
 and fifty dollars, with six per cent, inter- 
 est from date, this 30th of Nov., 1865. 
 "E. J. Dodd, Pres. 
 "James J. Drye. 
 "Wm. R. McClain, 
 "Wm. Spragins, 
 "M. P. Drye, 
 "James Yowell." 
 And this was held to he the note of tlie 
 signers ; they were resolved to be the 
 makers. 3 Bush (Kv.), 584, 96 Am. Dec. 
 258 ; Sto. Ag. 151 ; Brown, 156 Mass. 28, 
 15 L. R. A. 509, n., 32 Am. St. 430, n., 
 Casco Bank, 139 N. Y. 307, 36 Am. St. 
 
DATUM POSTS. 
 
 213 
 
 Leading Cases. — 410. Sturdivant. 
 
 705, n. ; Stone, post. Contra, Hager, 4 
 Colo. 90, 94. 
 "Office of Belleville Nail Mill Co.," and con- 
 cluding, "Charge same to account of Belle- 
 ville Nail Mill Co., W. C. B., Prest., J. C. 
 W., Sec," is the bill of the company. 
 Hitchcock v. Buchanan (1881), 105 U. S. 
 416, 26 L. ed. 1078, n. ; Mech. Ag. 437, 
 1 Rand. Com. Paper, 138, 140 ; Matthews, 
 87 Iowa, 246, 19 L. R. A. 676-682, n. ; 
 Miller, 150 Mass. 140, 6 L. R. A. 71, n. ; 
 Hobson, 76 Cal. 203, 9 Am. St. 193, n. ; 
 Liebscher. 74 Wis. 387, 17 Am. St. 171, 
 5 L. R. A. 496; Braun, 187 111. 283, 79 
 Am. St. 221. 
 
 Rewards ; offer of by selectmen of town, 
 are viewed according to the Sturdivant and 
 Caphart cases. Brown, 156 Mass. 28, 32 
 Am. St. 430, n., 15 L. R. A. 509, n. 
 
 The body of a bill referred to the pub- 
 lic account of the Republic of France, and 
 it was signed "Le Tombe, Le Consul-Gen- 
 eral." The Republic was the maker, not 
 Le Tombe. Jones v. Le Tombe (1798), 
 3 Dall. (U. S.) 384, 1 L. ed. 647. 
 Public agents are not bound unless it clearly 
 appears it was intended to bind them; 
 therefore the strict rule relaxes to absolve 
 the public agent, but only to hold the gov- 
 ernmental agency, and thus to make the 
 paper better. The public agent can bind 
 himself, if such was the intention, upon 
 the fundamental principle that one may 
 make any contract he pleases. § 3, Hughes' 
 Conts. Note, 32 Am. St. 434 ; Clark v. 
 Des Moines. Agreeably to the Jones Case, 
 see School Town of Monticello, 72 Ind. 91, 
 37 Am. Rep. 139, n. (notes are set out in ; 
 instructive case) ; McCurdy, 21 Wis. 199 ; 
 Field, Ultra Vires, 548 ; Baird, 132 111. 
 16, 22 Am. St. 504-514, ext. n. (liability 
 of agent ex contractu and ex delicto.) 
 At common law four things must be in 
 writing: 1. Judicial records {see Res 
 adjudicata; Iverslie: 46. 2. Deeds (see 
 Elwell v. Shaw). 3. Commercial paper 
 (see Commercial Paper) ; and 4. Stipula- 
 tions of counsel. Commercial paper was 
 most impregnable from attacks of oral 
 evidence (see Pym: 52), for oral evidence 
 was admissible to affect Judicial records. 
 Bauerman: 48. And also the deed in some 
 cases. Elwell v. Shaw ; Jackson v. Cleve- 
 land. But the philosophy, the genius and 
 the vitalizing life and force of the nego- 
 tiable instrument constituted its creative 
 ends and purposes inimical to change and 
 alteration. It is made to go forth and 
 speak to all alike, and to be construed 
 for all alike. Commercial paper is a 
 "courier without luggage." 
 Overton v. Tyler (1846), 3 Pa. 346, 45 Am. 
 Dec. 645-647, n., 1 Am. Lead. Cas. 363- 
 411, n., 1 Danl. Nego. Insts. 6, 61, 4 L. 
 R. A. 492, Rand., Pars. N. ; M'Oormick 
 v. Trotter (1823), 10 Ser. & R. 94, 1 Am. 
 Lead. Cas. 366-411, n. : cited. Rand. 100, 
 1 Danl. 56, 1 Pars. N. 46, 1 Pars. Conts. 
 264, 3 Kent, 76 ; Gerard v. La Coste 
 (1787), 1 Dall. (Pa.) 194, 1 Am. Lead. 
 Cas. 369-411, n., 1 Am. Dec. 226 : cited, 
 1 Rand. Com. Paper, 177, 2 id. 656, 3 
 Kent, 77 (negotiable instrument must 
 have negotiable words, like "or order," "or 
 
 Leading Cases. — 410. Sturdivant. 
 
 assigns," or equivalent words of negotia- 
 bility). 
 
 These cases show we have a peculiar 
 subject-matter as also do the greater cases 
 of Miller v. Race and Swift v. Tyson. 
 These cases present a subject-matter, the 
 integrity of which depends on certainty. 
 (Kelley. 304.) A public policy that they 
 speak to all alike, and will be construed 
 for all alike ; otherwise the bill or note 
 would be impaired — indeed its nature 
 would be changed. And so it Is clear that 
 a most important subject-matter is wholly 
 dependent upon a rule of evidence, upon 
 procedure. So, too, each subject-matter 
 demands its own appropriate pleading and 
 proof, and if these were changed, it would 
 change the subject-matter. 25 Am. Bar 
 Ass'n Rep. 544-558. 
 One dealing with commercial paper has the 
 right to judge from its face the time, 
 amount, the maker and the payee and 
 for certainty about these the courts strin- 
 gently construe according to XJt res magis 
 valeat quam pereat. 
 Crooker v. Holmes (1875), 65 Me. 195, 20 
 Am. Rep. 687 ; 1 Rand. Com. Paper, 111, 
 112, n., 1 Danl. Nego. Insts. 44, 1 Pars. 
 Conts. 265 ("payable when I shall sell the 
 place where I now live," is certain, and 
 means after a reasonable time). Same 
 point in Nunez, 19 Wall. 560, Jones, 
 Construe. 226 ; Page, 164 Mass. 116, 49 
 Am. St. 449, 28 L. R. A. 759 ; Smithers, 
 41 R. R. 101, 7 L. R. A. 264. Verba in- 
 tentione, etc. All ambiguities are resolved 
 against the maker of a bill or note ; Verba 
 fortius, etc. He is not allowed to speak 
 Janus-faced : Allegans contraria, etc. 
 Abel : 334. Verba fortius. Contra, Che- 
 ney, 1 Colo. 73 : cases ; 1 Rand. Com. 
 Paper, 112, 1 Danl. 41-44 : cases. 
 Deeds and commercial paper must disclose 
 the name of the principal on their face, 
 with certainty, else the agent and not the 
 principal is bound, and oral evidence is 
 inadmissible to alter or vary these Instru- 
 ments as to parties. To these is strictly 
 applied Expressio unius, etc. 
 Jefts v. York (1849), 4 Cush. 371, 50 Am. 
 Dec. 793, 794, Mech. Ag., Whart., Huffc, 
 Reinh., Tiff. Ag., 2 Gr. Ev. 123, 1 Pars. 
 N. & B. 122, Bish., Pars., Chit., 2 Page, 
 975, Add. Conts. (Morgan, ed.), Rand. 
 Com. Paper, Danl., 1 Beach, Pub. Corp. 
 202, 3 Suth. Dam. 797, Bigl. Lead. Cas. 
 Torts, 22, Bigl. Fr. 58 ; notes, Dusen- 
 bury, 1 Am. Lead. Cas. ; Mech. Ag., Whart. 
 Ag. ; Cole, 34 Neb. 68, 33 Am. St. 616, n. 
 (oral evidence inadmissible, as in Sturdi- 
 vant, supra). Brown: 54. 
 
 Agent is not directly liable on the in- 
 strument ex contractu, but is liable in 
 case ex delicto, or for breach of warranty, 
 or for money had and received. Jefts; 
 Whart. Ag. 524, 532 ; notes, 50 Am. Dec. 
 793 ; Mech. Ag. 549 : cases. See Ma- 
 licious Acts. Contra, Stackpole v. Ar- 
 nold (1814), 11 Mass. 27-29, 6 Am. Dec. 
 150 : cited, Ans. Conts., Mech., Sto., 
 Whart., Reinh., Rand., Danl., Pars., Com. 
 Paper (agent failing to bind his principal 
 binds himself, and he may be sued direct- 
 ly on the instrument). 
 
214 
 
 DATUM POSTS. 
 
 Leading Oases. — 
 
 411. FOLHILL v. WAITER (1832), 3 
 Barn. & Adol. 114 (23 E. C. L. K.), 2 
 Smith, Torts, 495, Bro. Max. 791, 796, 
 Bigl. Lead. Cas. Torts, 37, Ans. Conts. 
 138, 350, Keener, Sel. Cas. 771, Finch, 
 Cas. 159, Add. Torts, 495, Smith, Pars., 
 Bish., Chit., Add., Whart. 214, 236, Clark, 
 Sto., Laws. 195, Ham. 119, Hughes' Conts., 
 1 Pars., N. 121, 2 Gr. Bv. 230a, Bish., 
 Torts, Add. Torts, Mech. Ag., Sto., Huffc, 
 Reinh., Tiff., Ben]. Sales, Bigl. Fraud, 
 Bisph. Eq., Pom., Rand. Com. Pap., Danl., 
 3 Siith. Dam. 798, Benj. dial. Bills, 1 
 Mech. Sales, 856, 876, Mews' E. C. L. 
 
 Polhill stated: Agency; warrant of authori- 
 ty; fraud; deceit; privity. Walter ac- 
 cepted a bill for another without authority, 
 which the payee transferred to Polhill. 
 W. believed that his acceptance would be 
 ratified, but it was disaffirmed, and P. 
 sued W. in an action of deceit. Held, he 
 could recover. Fraud may exist without 
 dishonest motive. Polhill ; Pasley ; Ans. 
 Conts. 
 
 An agent warrants his authority; at least 
 that he was invested with it. Collen ; 
 Smout. 
 
 A representation made for others -to act upon 
 founds liability for all who are misled by 
 it. Polhill ; Thomas ; Langridge. One is 
 liable for the "natural, direct and prob- 
 able consequences of his act." Hadley v. 
 Baxendale ; Pasley (deceit) ; Jenkins v. 
 Long (misrepresentation) ; Williams v. 
 Stoll (negligent signing of contracts) ; 
 Angle ; Young v. Grote (filling blanks) ; 
 Lickbarrow ; Scott v. Shepherd ("Squib 
 Case"). 
 
 412. DTJSENBUKY V. ELLIS (1S02), 3 
 Johns. Cas. (N. T.) 70, 1 Am. Lead. Cas. 
 751, ext. n. ; Mech. 550, Sto., Whart., 
 Huffc, Tiff., Reinh. Ag., 1 Pars. Conts. 
 67, 1 Chit. 313, 314, Bish. 1120, 1 Add. 
 (Morgan, ed.) 80, Clark, 738, Sto. 249, 
 Hughes' Conts., Rand. Com. Pap. 135, 1 
 Danl. 306, 2 Kent, 530, 3 Suth. Dam. 798, 
 1 Pars. N. 122 ; Baird, 132 111. 16, 22 Am. 
 St. 504-514, ext. n. (liability of agent ex 
 contractu and ex delicto) ; Jenkins, 13 
 Adol. & El. (N. S.) 751 (66 E. C. L. R.), 
 Mews' E. C. L., Nicholls, 9 Exch. 154, 
 Mews' E. C. L. 
 
 Agency; commercial paper. If one makes a 
 note for another without authority, he 
 binds himself upon the note and may be 
 sued upon it. Dusenbury ; , Bish. Conts. 
 1120. Or any other contract. Dale, 48 
 Ark. 188, 3 Am. St. 224. The name of 
 the principal is surplusage. Ut res magis 
 valeat, etc., is applied. Note 1, L. ed. 
 (U. S. R.) 649; Patrick. Contra: Kan- 
 sas, 62 Kan. 692, 84 Am. St. 417. 
 
 An agent failing to bind his principal 
 does not bind himself, when there is no 
 deception, but a bona fide mistake of fact, 
 as in Smout, where the principal had 
 lately died and neither party knew of the 
 death. And we have already seen that a 
 public agent is not so bound, in the ab- 
 sence of intent. Personal liability of per- 
 sons acting as corporations but without 
 authority. Rutherford, 22 Or. 218, 29 
 Am. St. 596-603, ext. n. 
 
 Oral evidence is inadmissible to make corn- 
 
 Leading Cases. — 412. Dusenbury. 
 
 mercial paper certain. The principal must 
 be disclosed. Means, 32 Ind. 87, 2 Am. 
 Rep. 330-333 : cases ; Burlingame, 79 III 
 515, 22 Am. Rep. 177-180, n. ; 1 Rand 
 Com. Paper, 129, 131, 137, 147 ; Byles 
 on Bills, 37, 38, 1 Danl. 285, 286, Chit. 
 Bills, 43, Edwards, B. 71, 1 Pars. N. 92, 
 Sto. N. 65, 68 ; Falk, 127 D. S. 596-607 : 
 
 An agent must disclose principal's name in 
 sealed instrument. Elwell v. Shaw; Mc- 
 Donough, 1 Har. & John. (Md.) 156, 2 
 Am. Dec. 510, 518, ext. n. ; Briggs, 64 N. 
 Y. 357, 21 Am. Rep. 617 ; Mech. Ag. 419. 
 421, 430. 
 
 A general agent should sign in this form: 
 "A. B. by C. D." Note, 52 Am. Dec. 775 ; 
 Stackpole v. Arnold (1814), 11 Mass. 27, 
 29, 6 Am. Dec. 158; Sto. Ag. 147, Mech. 
 Ag. 431, 449, Ans. Conts. 334, Whart. 
 Ag., Rand. Com. Paper, Danl. Nego. Insts., 
 Pars. N. & B. 
 
 Oral evidence inadmissible; words descriptio 
 persona cannot be explained by oral evi- 
 dence. Falk, 127 U. S. 596-607; Sturdi- 
 vant. 
 
 Pleadings. Parties suing in a representative 
 capacity should aver this fact in body of 
 pleading. Bliss, PI., § 145 ; Rich, 64 
 Vt. 408, 15 L. R. A. 850: cases. 
 
 A more liberal rule is recognized in 
 admitting oral evidence in simple con- 
 tracts, if not commercial paper. Thom- 
 son : 342 ; Smith, L. C. ext. n. to those 
 cases. Certainty essential for commercial 
 paper. Kelley : 304. 
 
 Agency. Words descriptio personarum added 
 after a signature, such as "Agent," "Trus- 
 tee," "President," "Executor," "Adminis- 
 trator," are surplusage. Sturdivant ; 
 Jefts ; Pentz v. Stanton : Am. Lead. Cas., 
 with notes ; Stone, 7 Cow. 453, 17 Am 
 Dec. 529 ; Sto. Ag., Whart., 1 Pars. Conts. 
 66, 67. Contra, Hager, 4 Colo. 90, 94. 
 Effect of writings in favor of "trustee." 
 Central Bank, 111 Iowa, 187, 82 Am St 
 511-524. 
 
 413. MOITON V. CAMBOUX (1848), 2 
 Exch. 487 ; afllrmed, 4 Exch. 19, Ewell 
 L. C. Inf., etc., 76 R. R. 664, Pars. Conts. 
 423, 424, 3 id. 413, Ans. 116, 2 Beach 
 1407, 1 Add. 192, Chit., Bish. 970, 1 Sto. 
 228, Smith, 359, Whart., Laws. 162, Ham. 
 192, Keener, Cas. Conts. 553-556, 2 Page, 
 901, Hughes' Conts., Reinh. Ag., 6 Rul. 
 Cas. 719, n., Mews' E. C. L., Flach, 88 
 Md. 308, 71 Am. St. 418, 42 L. R. A. 
 745 ; Young, 48 N. H. 133, 97 Am. Dec. 
 594 ; 2 Kent, 451, Mech. Ag. 48, 1 Rand. 
 Com. Pap. 256, 257, 262, 1 Danl. 210, 
 214, Bro. Max. 297, 1 Wash. R. P. 455, 
 Dev. Deeds, 352, 2 Whart. Ev. 931, 1 
 Perry, Trusts, 189, 1 Best, Ev. 197, 2 id 
 529, 1 Benj. Sales, 32, Adams, Eq. 183. 
 
 Cited, §§ 282, 304, Gr. & Rud. 
 
 Molton stated: Non compos mentis persons; 
 executed contracts of insane persons; 
 when rescindable. Where a person ap- 
 parently of sound mind, and not known 
 to be otherwise, enters into a contract 
 which is fair and bona fide, and which is 
 executed and completed, and the property, 
 the subject-matter of the contract, can- 
 not be restored so as to put the parties in 
 statu quo, such contract cannot afterwards 
 be set aside either by the alleged lunatic 
 or those who represent him. Therefore 
 
DATUM POSTS. 
 
 215 
 
 Leading Cases. — 413. Molton. 
 
 where a lunatic purchased certain an- 
 nuities for life of a society which, at the 
 time, had no knowledge of his unsound- 
 ness of mind, the transaction being in the 
 ordinary course of the affairs of human 
 life, and fair and bona fide on the part of 
 society, held, that after the death of ' the 
 lunatic his personal representatives could 
 not recover back the premiums paid for 
 the annuities. The grantee of an annuity 
 cannot take advantage of the want of 
 enrollment of a memorial as required by 
 53 Geo. III., c. 141. 
 
 Bwell, L. C. Inf., etc., 614 ; Mitchell ; 
 Baxter ; Beverley ; Flach, 88 Md. 368, 42 
 L. R. A. 745-749, n., 71 Am. St. 418; 
 jEtna Life Ins. Co., 154 Ind. 370, 77 Am. 
 St. 481, n. ; Woodley, 114 Ga. 122, 88 Am. 
 St. 22, n. (deed of insane person voidable 
 only) ; Whart. Conts. 98-124 ; Allis, 6 
 Met. 415, 39 Am. Dec. 744 ; Yates, 2 
 Strange, 1104; Mews' B. C. L. ; Chit. 
 Conts. ; Neill, 9 Vesey, Jr. 478, 32 Enp. 
 Rep. 687, Mews' B. C. L., 1 Chit. Conts. 
 190. Beverley, 20 Grat. 147 ; Samuel, 3 
 Leigh, 567 ; Sims, 121 N. C. 297, 40 L. 
 R. A. 727-748, ext. n. (marriage contract 
 of insane person void). 
 
 Deeds of the insane voidable only. Dexter, 
 15 Wall. 9, stated and followed. Wil- 
 liams, 94 Tex. 430, 435. 
 
 Contracts with, fraudulent. Helberg, 150 
 111. 12, 41 Am. St. 339, n. ; Chesterfield. 
 
 Testamentary capacity, how affected by. 
 Miller, 179 Pa. 645, 39 L. R. A. 220-230, 
 ext. n. ; 16 Rul. Cas. 713, n. ; Ayrey, 2 
 Add. Bcc. 206, Ew. L. C. 746. 
 
 Drunkenness, when a defense. Gore : Bev- 
 erley's. 
 
 Insane persons cannot contract; their con- 
 tracts are void. Walker v. Winn, 142 
 Ala. 560, 110 Am. St. 50-52: cases; 140 
 N. C. 163, 111 Am. St. 827-843, n. 
 
 Total mental incapacity precludes contract. 
 Whart. Conts. 98. Except for necessaries 
 the tendency is to the general rule. 
 Wherever there is capacity there is liabil- 
 ity, Chesterfield, but if the party contract- 
 ing has notice the contract is voidable. 
 Whart. Conts. 102. A fair beneficial con- 
 tract binds. Whart. Conts. 106. Deeds 
 of lunatics void. Whart. Conts. 107. As 
 with infants, a party contracting with a 
 lunatic is bound, but the lunatic is not. 
 Formerly no one could stultify himself. 
 This was Coke's rule in Beverley's Case. 
 It was against reason and good morals. 
 1 Whart. Conts. 99. 
 
 Inquisition of lunacy and of drunken- 
 ness is only prima facie evidence. Whart. 
 Conts. 123. 
 
 414. BAGSTER (or BAXTER) V. 
 PORTSMOUTH (1826), 7 Dowl. & Ry- 
 land, 614 (16 E. C. L. R.), 2 Car. & 
 Payne, 178 (12 E. C. L. R.), 5 Barn. & 
 Cress. 170 (11 E. C. L. R.) Ewell, L. C. 
 Inf., 632, Pars. Conts., Chit., l~Add. 192, 
 Whart. 118, Smith, 357, 360, Sto. 80, 82, 
 Laws. 163, 2 Beach, 1407, Hughes, Laws., 
 1 Rand. Com. Pap. 256-258, 1 Danl. 218, 
 1 Pars. N. 149, 2 Gr. Ev. 369, 2 Kent, 
 451, Whart Ag., 374, 1 Sto. 225, 227, 
 228, 297, Dev. Deeds, 352, 1 Benj. Sales, 
 32, 1 Mech. 84, Mews' E. C. L. 82. 
 
 Bagster stated: P., of unsound mind, after 
 
 Leading Gases. — 414. Bagster. 
 
 A. D. 1818, hired livery turnouts of B., 
 who did not know of P.'s deficiency. P. 
 used the turnouts, and they were suitable 
 to his rank and station. In 1823 a com- 
 mission found that P. bad been of unsound 
 mind since 1809. Held, that B. could re- 
 cover. 
 Lunatics may sometimes contract. Molton ; 
 Mitchell ; 2 Beach, Conts. 1378-1414. 
 
 415. MITCHILL V. KINGMAN (1827), 
 5 Pick. 451, Ewell, L. C. Inf., 522, Pars. 
 Conts. 421, 2 id. 670, 1 Chit. 187, 2 id. 
 1050, Smith, 356, Whart. 100, 109, Clark, 
 267, Sto. 81, 87, Laws. 161, Hughes' 
 Conts., 1 Perry, Trusts, 33, 2 Kent, 451, 
 1 Wash. R. P. 455, 2 Gr. Ev. 135, 370. 
 
 Mitchell stated: K. was sued upon a note. In 
 defense, it was shown that at the time 
 he gave the note and ever since he was a 
 lunatic. Held, that under the modern 
 rule one may stultify himself. Nemo al- 
 legans suam turpitudinem audiendus est. 
 
 1 Gr. Bv. 383, Ham. Conts. 185 ; Shelley 
 v. Walton. 
 
 Lunatics; contracts of, voidable. Bagster, 
 U. S. v. Drew ; Molton ; Jackson, 4 Cowen, 
 207, 15 Am. Dec. 354-369, n. 
 
 Infants; contracts with. See Infants. Craig, 
 18 Am. St. 569, ext. n. ; Zouch (deed 
 voidable on attaining majority, unless he 
 then ratifies it). See Trueblood, 65 Am. 
 Dec. 656. Infants. 
 
 416. BEVERLY'S CASE (1604), 2 Coke, 
 568, 4 Coke, 1236; Ewell, L. C. 526, 16 
 Rul. Cas. 702, n., 107 Am. St. 532, Pars. 
 Conts. 421, 1 Chit. 187, 188, Ham. 185, 
 191, Whart. 115, Clark, 264, 272, Sto. 73, 
 78, Hughes' Conts. ; Flach Co., Bish. C. 
 L., 1 Rand. Com. Pap. 257, Sto. Eq., 2 
 Crim. Def., Dev. Deeds, 67, 69, 1 Perry, 
 Trusts, 191, Best Bv. 308, 4 Kent, 451, 
 Mews' B. C. L. 587, 2 Page, 895. Cited, 
 §§ 13, 18, Gr. & Rud. 
 
 Drunkenness as a defense in crime. U. S. 
 v. Drew. As a defense to an action on 
 contract. 1 Chit. Conts. 192, Hughes' 
 Conts., 1 Add. Conts, sub, U. S. v. Drew. 
 No excuse for crime. 1 Bish. C. L. 400. 
 Supplies malice in homicide. 1 Bish. C. 
 L. 401. For what purpose may be shown 
 in evidence. Hopt v. P. (1882), 104 U. 
 S. 631, n. ; Warner v. S. (1894), 56 N. J. 
 L. 686, 44 Am. St. 415. Reduces degree 
 of crime, when. 2 Crim. Def. 432-768 : 
 cases, 36 L. R. A. 465-485, n. 
 
 Morphinism and other addictions as affect- 
 ing responsibility and capacity. Edwards 
 V. S., 38 Tex. Cr. 386, 30 L. R. A. 262- 
 266, n. ; M'Naghten's Case : 195 ; U. S. v. 
 Drew : cases. 
 
 What are insane delusions. Buchanan 
 (1900), 29 Cal. 330, 50 L. R. A. 378, n. 
 
 Insane persons ; power to contract. Molton ; 
 Mitchell ; Bagster ; Flach Case, supra. 
 
 Gore v. Gibson (1845), 13 M. & W. 623, 67 
 R. R. 762, Ewell, L. C. Inf. 734, Mews' 
 B C L., q. v., 1 Pars. Conts. 421, 2 id. 
 421-423, 3 id. 413, Bish. 980, 1 Chit. 192, 
 195, Smith, 364, Whart. Conts. 109, 119- 
 121, Ham. Conts. 183, 189. 1 Add. Conts. 
 191 2 Page, 903-910 ; 107 Am. St. 532, 
 21 Am. Rep. 32, Bisph. Eq. 230, 1 Sto. 
 230, Dev. Deeds, 80, 2 Whart. Ev. 1077, 
 
 2 Gr. Ev. 14, 1 Perry, Trusts, 191, 2 Best. 
 Ev. 529, Benj. Sales, 32, Adams, Bq. 183, 
 
21G 
 
 DATUM POSTS. 
 
 Leading Cases. — 416. Beverly's. 
 
 n. ; Lancaster County Bk. v. Moore 
 (1875), 78 Pa. 407, 21 Am. Rep. 24-35, 
 ext. n. ; Barrett, 2 Aik. 167, Ewell, L. C. 
 Inf. 228, n. ; Brandon, 3 C. & P. 440 (14 
 B. C. L. R.), Mews' B. C. L. (Contract- 
 Parties to) (one cannot induce drunken- 
 ness and then take advantage of it) ; Har- 
 vey, 1 Munf. (Va.) 518, 1 Mech. Sales, 
 84 ; cited, § 55, Hughes' Conts. 
 Drunkenness as a defense to a contract. 
 Gore, supra; Wright, 127 Ala. 557, 54 L. 
 R. A. 440-453, ext. n. ; Reynolds, 24 Tex. 
 174, Sto. Conts. 45 ; Burnham, 119 Wis. 
 
 Leading Oases. — 416. Beverly's. 
 
 509 ; Johnson v. Harmon (1876), 94 U. S 
 371, Cameron Co., 138 N. C. 365, 107 Am. 
 St. 532-547, ext. n., citing, Beverley; 
 Gore. 
 Judgment against lunatics, effect of. Pol- 
 lock, 13 Wash. 626, 52 Am. St. 66 ; Spur- 
 lock, 19 Ky. L. Rep. 1321, 39 L. R. A. 
 775, ext. n. 
 
 Insanity no defense for a tort. Morse v. 
 Crawford (1845), 17 Vt. 499, 44 Am. Dec. 
 349, Ew. L. C. 335 ; Krom. Insane persons, 
 like infants, are liable for torts. Gilson. 
 
 For convenience the following table of cases is added, each of which will be 
 found in its alphabetical place according to its initial letter in the Grounds 
 and Rudiments of law referred to in the preface: 
 
 417. ANKLE v. CHICAGO H. & ST. P. 
 
 R. R. : One is accountable for his fraudu- 
 lent acquisition. 
 
 Angle v. Northwestern Mutual Ins. Co. : 
 Holder of commercial paper may by im- 
 plication fill blanks left in it. Piper v. 
 Hoard, sub, Ashby ; Hibblewhite. 
 
 Bailey v. De Crespigny : Impossibility when 
 a defense. Actus Dei, etc. ; Cutter : 308. 
 
 Barbier v. Connolly : Police power ; limita- 
 tions. Beer Co. v. Massachusetts ; Mil- 
 lett v. P. 
 
 Batty v. Carswell: General and special 
 agents ; distinctions. 
 
 Beard v. Hopkinsville: Limitations of in- 
 debtedness by constitutions. Hitchcock v. 
 Galveston. Ultra vires. 
 
 Bell v. Twilight: Possession taken and held 
 under a contract giving notice of that 
 contract only, and not of a changed or 
 altered right. Brown v. Williamson ; Le 
 Neve v. Le Neve. 
 
 Bennett v. Lockwood: Damages by willful 
 and malicious acts recoverable. See Had- 
 ley v. Baxendale. 
 
 Bentley v. Vilmont: Stolen property may be 
 recovered by its owner anywhere. A thief 
 gives no title. 
 
 Boydell v. Drummond: A contract may ap- 
 pear from several documents — writings. 
 
 Bright v. Boyd: Rights of a trespasser 
 building on another's land ; confusion and 
 accession. Jewett v. Dringer. 
 
 Bull v. Griswold : A trespasser cannot claim 
 or plead the benefits of his trespass ; a 
 contract cannot be forced upon parties. 
 
 Carter v. Boehm; Marine insurance; con- 
 cealment of a material fact ; effect is to 
 vitiate the contract absolutely. 
 
 Cherry v. C. & A. R. R. : Ticket contracts 
 how construed. LeBlanche. Loftis. 
 
 Chesterfield v. Janssen : Catching bargains ; 
 undue influence. 
 
 Christmas v. Oliver: Deeds; recitals in; 
 mutuality. Both sides are bound by. 
 Young v. Raincock. 
 
 Clark v. Des Moines : One dealing with a 
 general agent must take notice of his 
 powers. 
 
 Clayton v. Blakey: Renewal of leases by 
 holding over under the Statute of Frauds. 
 
 Collins v. Blantern: Compounding crime. 
 
 Cooch v. Goodman: Construction of deeds. 
 
 Cooper Manufacturing Co. v. Ferguson: 
 Foreign corporations ; power to do busi- 
 ness. 
 
 Craig v. Van Bebber : Infants; capacity to 
 contract. See Infants : cases ; Peters v. 
 Fleming. 
 
 Craker {or Croaker) v. Chicago R. R.: 
 Liability of corporations for torts. U. S. 
 Bank, sub, McManus. 
 
 Dering v. Winchelsea : Subrogation ; doc- 
 trines of ; contribution. 
 
 Dumpor's Case : Conditions ; in leases, if 
 once waived, they are gone forever. 
 
 Blwell v. Shaw : Deeds ; certainty of, re- 
 quired ; technical doctrines. 
 
 Elwes v. Mawe : Fixtures ; what are ; doc- 
 trines. 
 
 Farwell v. Boston, etc. R. R. : Agency ; 
 fellow-servants ; liability of master for 
 injuries to. 
 
 Field v. Mayor of New York: Assignments ; 
 doctrines ; what may be assigned, 84. De- 
 fenses not pleaded are waived. 
 
 French v. Miller: Procedure in courts not 
 a subject of contract. 
 
 Gibson v. Warden : Seals ; when surplusage. 
 
 Godsall v. Boldero : Insurable interest ; what 
 Is. 
 
 Gordon v. Gordon : Mistake ; Ignorantia legis 
 neminem excusat. 
 
 Griswold v. Waddington : Aliens ; contracts 
 of hostile aliens void. 
 
 Hadley v. Baxendale: Remoteness; when a 
 defense to a contract. 
 
 Hallett v. Wylie: Tenant must pay rent 
 for destroyed premises, when. 
 
 Heaton v. Hodges : Deeds ; how construed ; 
 metes and bounds control course and dis- 
 tance. 
 
 Hibblewhite v. McMorrine : Filling blanks 
 in sealed instruments ; when permissible. 
 Angle v. Northwestern Ins. Co. See Al- 
 terations ; Master v. Miller. 
 
 Hill v. Boston : Municipal corporations ; 
 powers and liabilities of. 
 
 Hilliard v. Richardson: Agency; independ- 
 ent contractors. 
 
 Hitchcock v. Galveston: Municipal corpora- 
 tions ; contracts of, ultra vires; ratifica- 
 tion. 
 
DATUM POSTS. 
 
 217 
 
 Leading Cases. — 
 
 Horn v. Cole : Equitable estoppel ; Allegans 
 
 contraria, etc. 
 Some v. Higgins: Undue influence. . See 
 
 Chesterfield v. Janssen ; Huguenin v. Base- 
 ley. 
 Horner v. Leeds : Landlord and tenant ; con- 
 struction of leases ; tenant cannot dispute 
 
 landlord's title. Willison v. Watkins. 
 Huguenin v. Baseley : Undue influence. See 
 
 Chesterfield v. Janssen. 
 Hunt v. Rousmanier (8 Wheat. 174) : 
 
 Agency ; death of principal revokes agency. 
 
 Smout v. Ilberry. 
 Hunt v. Rousmanier ( 1 Pet. 1) : Mistake ; 
 
 reformation ; rescission. 
 Jackson v. Cleveland; Deeds; consideration 
 
 of, general discussion. 
 Jenkins v. Long: Misrepresentation. Pasley 
 
 v. Freeman ; Chandelor v. Lopus : 375, 374. 
 Jewett v. Dringer : Accession and confusion. 
 
 Bright V. Boyd. 
 Jones v. Rice: Compounding crime. Col- 
 lins V. Blantern. 
 Keeeh v. Hall : Priority of mortgages. Moss 
 
 v. Gallimore. 
 Keech v. Sandford : Contracts with agents ; 
 
 trustees and fiduciaries ; validity of. 
 
 Patrick v. Bowman. 
 Kirkwood v. Miller : Joint trespassers ; who 
 
 are. 
 Kirven v. Va. Co. : Foreign corporations, 
 
 contracts of. 
 Langridge v. Levy : Remoteness ; privity. 
 
 Sale of a dangerous gun under a false 
 
 warranty. Thomas v. Winchester. 
 Lansdoume v. Lansdowne : Mistake ; relief 
 
 from. Gordon v. Gordon ; Brown v. Lam- 
 
 phear. 
 LeBlanche v. R. R. : Carriers' time tables 
 
 are a part of the contract. 
 Limpus v. London General Omnibus Co. : 
 
 Agents, general and special ; distinctions. 
 
 Batty v. Carswell, sub, McManus. 
 Lycoming v. Union: Status of gi/asi-munici- 
 
 pal corporations. 
 Lyon v. Reed: "Act and operation of law"; 
 
 meaning of, under the Statute of Frauds. 
 Lumley v. Gye: Enticing one to break a 
 
 contract is actionable. Allen v. Flood. 
 Manby v. Scott: Married women, contracts. 
 
 See Husband and Wife. 
 Marriot v. Hampton : Recovery at law ends 
 
 litigation : Interest reipublicos ut sit finis 
 
 litium. 
 Marzetti v. Williams: Bank is liable to 
 
 drawer for refusing to pay a check 
 
 drawn upon it. 
 Master v. Miller : Alterations ; rules of. 
 M'Manus v. Crickett: Principal liable for 
 
 the torts of the agent, when. R. v. Almon. 
 Merryweather v. Nixan: No contribution 
 
 among wrong-doers. 
 Miller v. Hyde: When the title passes in 
 
 a Judgment of tort. 
 Miller v. Race : Bank notes pass like cash 
 
 on delivery. Swift V. Tyson. 
 Millett v. P. : Police power ; limitations of 
 
 power to contract. 
 Moss v. Gallimore: When tenant must at- 
 torn to a purchaser. 
 
 Leading Cases. — 
 
 Mueller v. N. v.: An express stipulation 
 limits assignability of contract. 
 
 Nashville Trust Co. v. Smythe: A transfer 
 of a principal thing carries the security ; 
 sale of a note carries the security. 
 
 Osgood v. R. R.: Parties may contract as 
 they choose if only legally. Contract 
 may be partly valid. Pigot's case. 
 
 Overton v. Tyler: Negotiable paper is "a 
 courier without baggage." 
 
 Patrick v. Bowman; Deceit of partners. 
 Keech. Contracts by letter. Adams, 326. 
 
 Pa. R. R. v. Loftis : Assent to conditions in 
 tickets not presumed. Cherry. 
 
 Peters v. Fleming: Infants; contracts for 
 necessaries. See Infants. 
 
 Pigot's Case: Alterations. A contract may 
 be partly valid. Osgood. 
 
 Pinnington v. Galland: Ways of necessity; 
 implications. 
 
 Poulton v. London R. R. . Agency ; agent 
 cannot be authorized to commit crime. 
 
 Price v. Torrington : Shop-books ; books of 
 account ; admissibility of in evidence, 213f. 
 
 R. v. Almon : Agency ; criminal liability of 
 principal for acts of agent. M'Manus v. 
 Crickett. 
 
 R. v. Conde : Refusal or omission to do 
 lawful duty and thereby causing death. 
 R. v. Morby; R. v. Smith; U. S. v. 
 Holmes ; R. v. Clarence. 
 
 R. v. Esop; Ignorance of law is no excuse. 
 
 R. v. Morby: Homicide from neglect of 
 duty ; failure to supply necessaries. R. 
 v. Conde. 
 
 R. v. Wheatley: Caveat emptor: Let a pur- 
 chaser beware. Pasley v. Freeman : cases, 
 19, 375. 
 
 Roberts v. Smith, sub, Hilliard v. Richard- 
 son : Master's liability for injury to ser- 
 vant. 
 
 Roller v. Roller: Parents not liable to chil- 
 dren for torts. 
 
 Ros3 v. Houston: Notice to the agent is 
 notice to the principal. 
 
 Rossiter v. Rossiter : General words are 
 limited and restrained by special : Verba 
 generalia restxinguntur, etc. 
 
 Ryder v. Wombwell : Necessaries ; infant's 
 contracts for. Peters v. Fleming. 
 
 St. Louis Beef Co. v. Casualty Co. : First 
 breach of a contract is a breach of all. 
 Cutter: 308. See Installment. 
 
 Salt Lake v. Hollister: Municipal corpora- 
 tions ; contracts of ; ultra vires. Hitch- 
 cock v. Galveston. 
 
 Sasportas v. Jennings : Duress ; effect on 
 contracts. 
 
 Scott v. Shepherd ("Squib Case") : One is 
 presumed to intend the natural, direct and 
 probable consequences of his act. Lang- 
 ridge ; Thomas v. Winchester ; Stetson : 
 163; Lickbarrow: 394; Polhill : 411; 
 Hadley. 
 Scott v. Tyler: Contracts in restraint of 
 marriage are void. 
 
 Shelley's Case : Construction of deeds ; words 
 
 of limitation. 
 Smeed v. Foord: One must minimize dam- 
 
218 
 
 DATUM POSTS. 
 
 Leading Cases. — 
 
 ages ; must so act as not to augment 
 them, sub, Hadley. 
 
 Smith v. Hodson: 156: Election of remedies. 
 One may waive a tort and sue in assump- 
 sit. Streatfield v. Streatfleld. 
 
 Smout v. lll>erry: Death of principal re- 
 vokes agency. Hunt v. Rousmanier. 
 
 Spencer's Case : Conditions ; how construed ; 
 doctrines. 
 
 Squib Case. See Scott v. Shepherd. 
 
 State of Nebraska v. Distilling Co. : Mo- 
 nopoly ; forestalling, regrating. Mitchel 
 v. Reynolds. 
 
 Streatfleld v. Streatfield: Election; doc- 
 trines of. Smith v. Hodson. 
 
 Swift v. Tyson: Commercial paper; who is 
 a bona fide purchaser. Miller v. Race ; 
 Young v. Grote. Of real estate. Le Neve ; 
 Bassett: 395, 396. 
 
 Terry v. Anderson: Statute of limitations, 
 if accrued, cannot be withdrawn : 240. 
 
 Thomas v. Winchester: Sale of poisonous 
 drug under harmless label. Langridge v. 
 Levy. 
 
 Tobey v. Barber : Payment ; rules of. Note 
 given for antecedent debt does not ex- 
 tinguish it. 
 
 Trueblood v. Trueblood: Deeds of infants 
 void. See Craig, Infants. 
 
 Tucker v. Moreland: Infant's contracts, 
 sub, Infants. Craig v. Van Bebber. 
 
 Tyler v. Pomeroy: Contract, when complete. 
 White v. Corliss: 303. 
 
 Twyne's Case: Fraudulent conveyances. 
 
 V. P. R. R. v. Cappier: No obligation to 
 care for one who causes his own injury. 
 
 Leading Cases. — 
 
 Van Bouten v. Morse: Marriage contract ; 
 fraudulent concealment of facts. Whit- 
 worth v. Thomas. 
 
 Van Voorhis v. Brintnall: lex loci and lex 
 fori of contracts. ■ 
 
 Vasse v. Smith; Infants; contracts of. See 
 Infants ; Craig v. Van Bebber. 
 
 Warmstrey v. Tanfield : Assignments ; law 
 of. See Assignments. 
 
 Watkins v. Baird: Duress; effect of. See 
 Sasportas v. Jennings. 
 
 Waugh v. Carver : Partners ; contracts 
 among. Participation in profits. 
 
 White v. County of Bond: Quasi-corpora- 
 tions — counties : limitations upon. See 
 Hill v. Boston; cases. 
 
 Whitworth v. Thomas: Illegal contracts; 
 rescission, right of. Van Houten v. Morse. 
 
 Williams v. Stoll: Negligent execution of 
 a contract is no defense. Scott v. Shep- 
 herd; Swift v. Tyson. 
 
 Williamson v. Brown : Possession of real 
 estate as notice of an occupant's right. 
 Le Neve v. Le Neve, 396. 
 
 Willison v. Watkins: A tenant cannot dis- 
 pute a landlord's title. Horner v. Leeds. 
 
 Young v. Grote : Commercial paper ; bona 
 fide holder ; who is. "Where one of two 
 equally innocent persons must suffer from 
 the fraud of another, he who first trusted 
 must first suffer." Lickbarrow : 394 ; 
 Swift. 
 
 Young v. Raincock: Estoppel by deed; re- 
 citals in, conclude the parties. Christmas 
 v. Oliver; Jackson v. Cleveland. 
 
 Zouch v. Parsons : Infants ; deeds of, may 
 be disaffirmed. See Craig v. Van Bebber. 
 
INDEX 
 
 TO LEADING CASES AND MAXIMS 
 
 [Note: The organization of this work is explained in the prefatory fore- 
 word. The cases and principles therein referred to, which form " the 
 content of the work, are next indexed. The parenthesized figures are the 
 numbers of the cases, which are indexed as sections. 
 
 It is repeated that all maxims are translated either in this index 
 or in the table on pp. 11-14. Maxims followed by a star in this index are 
 also found and translated in the table on pp. 11-14.] 
 
 ABANDONMENT : Of waivable matter. See 
 Appellate Peocedure ; Waiver ; Con- 
 sensus. 
 Ot error by failing to argue it. Citizens 
 (186). 
 ABATEMENT r Fleas, practice relating to. 
 R. v. Gibson (149) ; Myers (150), et 
 seq. 
 Dilatory pleadings ; practice relating to. 
 Bonesteel (151) ; Harkness (152) ; 
 Kraner (399). 
 Generally may be waived. See Consen- 
 sus. Contra Harkness (152). 
 Outline citation ; illustrative cases. L. C. 
 290-399. See Waiver. 
 ABBREVIATIONS; FIGURES: See Prolix- 
 ity. 
 ABEL (334): Sureties; contracts of. 
 AB INITIO : Trespassers, from abusing an 
 
 authority. Six C. C. (165). 
 ABSTRACT OP RECORD : See Appellate 
 Procedure. L. C. 292-299. 
 Duty of appellants in relation to. McAr- 
 thur (99) ; Conductors' (294) ; Hand 
 (295). 
 ABSURDITIES : Excluded in construction. 
 Huntsman (231). . 
 
 Repugnant words avoid a document. Pam 
 (107) ; Barnard (108). 
 ACCEPTANCE : Of contract must be cer- 
 tain. White (3,03), et seq. 
 Implied from acts. White (303) ; Wel- 
 
 born (388). 
 Must be unequivocal. Boston R. R. (331) ; 
 
 Jordan (324). 
 Statute of frauds ; what is under. Baldey 
 
 (337). 
 Sales ; in law of ; what sufficient. Tar- 
 ling (404) ; L. C. 404-408. 
 Of deeds. Welborn (388). 
 Commercial paper. Welborn. 
 Of chattels sold. Tarling (404), et seq. 
 ACCESSORIUM NON DUCIT* : See Ex- 
 
 PRESSIO EORUM. § 249. 
 
 ACCESSORY : Confession of. U. S. v. Good- 
 ing (202). 
 
 ACCIDENTS : See Actus Dei ; Impossibil- 
 ity. 
 How viewed in contract Cutter (308), 
 etseq.; Dame (308c) ; Hallett (308d) ; 
 Robinson; Davison (310). 
 
 ACCORD AND SATISFACTION: Cumber 
 (311). 
 By one defendant operates for others, 
 lis (389). 
 
 ACRAMAN (406) : Sales ; title 
 when. 
 
 El- 
 
 ACT AND OPERATION OF LAW: Lyom 
 (417). 
 
 ACTA EXTERIORA INDICANT INTERIORA 
 secreta : Acts indicate the intention. 
 Six C. C. (165). 
 
 ACTIO NON DATUR NON DAMNIFICATO : 
 An action is not given to one who is- 
 not injured. Weltmer (2C8a). 
 
 ACTIO PERSONALIS MORITUR CUM PER- 
 sona: A personal right of action dies 
 with the person. § 398. 
 
 ACTION AND REMEDIES: See UBI Jus. 
 
 ACTORE NON PROBANTE REUS ABSOL- 
 vitur*: To prove judgment and rec- 
 ords. Clem (2o) ; Planing (2d) ; Dav- 
 enport (2f). 
 A plaintiff must make allegata et probata 
 certain. McArthur (99) ; Gibler (96). 
 Must preserve and produce flies and rec- 
 ords. McArthur. 
 The claimant of a title or right must 
 prove it by the right record. Windsor 
 (1) ; Clem (2e) ; Williamson (65) ; 
 Williams (116) ; Thatcher (117) ; 
 Walker (118) ; Voorhees (119) ; De- 
 putron (121) ; Ransom (122) ; Harvey- 
 (123) ; Stout (124) ; Moser (125), et 
 seq. 
 Claimant for a review must affirmatively 
 show error. McArthur (99) ; L. C. 
 290a-299. 
 Statutory record, every presumption, 
 against. Bates (225) ; J' Anson (91). 
 See Verba Fortius ; De Non Apparen- 
 tibus. 
 P. 2; §§60, 99, 114, 116, 119, 121, 
 122, 135, 136, 157, 164, 185, 186, 207, 
 232, 308. 
 
 ACTOR QUIA CONTRA REGULAM, etc.: 
 A pleader ought not to be heard who- 
 advances a proposition contrary to the' 
 rules of law. § 104. 
 
 ACTORI INCUMBIT ONUS PROBANDI.* 
 See Actore. 
 
 ACTS INDICATE THE INTENTION. See- 
 Acta Exteriora : Six C. C. (165). 
 
 ACTUS CURIAE NEMINEM GRABAVIT.* 
 Dunlap (108) ; Cutter (308), et seq. 
 §311. 
 
 ACTUS DEI NEMINEM FACIT INJURIAM.* 
 See Accident. Pp. 8, 9, §§ 211, 308,. 
 310, 320, 332, 350, 383. 
 
 ACTUS NON FACIT REUM NISI MENS 
 sit rea.« McNaghten (185), et seq.: 
 cases. §§192, 194, 198, 200, 213a. 
 232 371. 
 
 ADAMS '(326): Contracts by letter. 
 
 219 
 
220 
 
 DATUM POSTS. 
 
 ADDISON (343) : Agency. 
 
 AD BA QVJB FREQUENTIUS ACCIDUNT 
 
 jura adaptantur: The laws are 
 
 adapted to those cases -which most fre- 
 quently occur. § 218. 
 ADEQUACY : Of consideration. Bainbridge 
 
 (332) ; Cumber (311) ; Thornborow 
 
 (333) . 
 ADMIRALTY : Federal judiciary assumed 
 
 jurisdiction of. Genesee Chief. See 
 
 Lange (159). 
 ADMISSION: See Denial, Issue. 
 
 Solemn judicial statements conclusive. Os- 
 
 canyan (41) : cases. 
 By' demurrer. Bissell (42). 
 By pleading effect. Bradbury (35) ; Boi- 
 
 leau (43) ; Bailey (44). 
 AD PROXIMUM ANTECEDENS* * : L. C. 70. 
 AD QUvESTIONEM FACTI" : Province of 
 
 court and jury. Bonnell (185) ; b. y. 
 
 Croteau (271). §1 92, 155, 185, 271, 
 
 ni7o 290c 
 AFFIDAVIT OF DEFENSE. See Sham 
 
 Pleading. 
 AGENCY : See Qui peb Alium ; Respondeat 
 
 Superior; Contracts by agents for dis- 
 closed and undisclosed principals. 
 
 Thompson (342) ; L. C. 342-344. 
 Rule in deeds ; principal must be named. 
 
 Taintor (344). . 
 
 Commercial paper, same rule as in deeds. 
 
 Sturdivant (410). 
 Agent can not plead illegality as a de- 
 fence. Brooks (370). 
 The fraud of the agent is the fraud of 
 
 the principal. Cornfoot (385). 
 Misrepresentation of agents ; principal 
 
 when liable. Cornfoot (385). 
 Admissions of agents bind principal. Os- 
 
 canyan (41) ; U. S. v. Gooding (202). 
 Pilling blanks in documents. Angle (417) ; 
 
 Hibblewhite (417). 
 Death of principal revokes agency. Hunt 
 
 (417) ; Smout (417). 
 Necessaries, contracts for. Peters (417) ; 
 
 Ryder (417) ; Craig (417). 
 One dealing with a general agent must 
 
 take notice of his powers. Clark (417). 
 Agent on oral authority may make writing 
 
 required by statute of frauds. Worrall 
 
 (390). 
 Notice to the agent is notice to the prin- 
 cipal. Le Neve (396) ; Ross (417). 
 Signature by agent, how sign to bind prin- 
 cipal. Sturdivant (410). 
 ~Words descriptio persons, how construed. 
 
 Sturdivant (410) ; Dusenbury (412). 
 Agent warrants his authority. Polhill 
 
 (411). 
 Agent of government ; public agents not 
 
 bound unless expressly named to be 
 
 bound. Sturdivant (410). 
 General and special ; distinctions. Batty 
 
 (417) ; Sturdivant (410), et seq.; 
 
 Limpus (417). 
 Independent contractors. Hilliard (417). 
 ^Fellow servants; doctrines. Farwell (417). 
 Partners are agents for each other. Liv- 
 ingston (345). 
 Corporations liable for acts of agents. 
 
 Coggs (350), et seq.; Craker (417). 
 Cannot act in a double capacity. Keech 
 
 (417). 
 Agent cannot be authorized to commit 
 
 crime. Poulton (417). 
 Criminal liability of principal for act of 
 
 agent. R. v. Almon (417). 
 AGREED CASE. See Certificate of 
 
 Doubt. Waco (300). 
 AIDER: By pleading over. Windsor (1). 
 By verdict. Rushton (5) ; Dobson (232a) ; 
 
 R. v. Goldsmith (20) ; Vadakin (11) ; 
 
 Hitchcock (12) j Mallinckrodt (12a). 
 
 Limitations of liberal construction. R. v. 
 Goldsmith (20) ; Dobson (232a) ; R. v. 
 Waters (70), et seq. 
 
 Illustrations. Boyd (62) ; Dobson (232a). 
 ALIENS : Contracts of ; when valid. Gris- 
 
 wold (417). 
 ALLEGANS CONTRARIA NON EST AUDI- 
 endus**: Pleadings must not be dou- 
 ble. Bowlus (100). See Duplicity. 
 
 Nor repugnant. Pain (107). 
 
 Illustrations from procedure. Bailey (44) ; 
 L. C. 290-299. See Consensus. 
 
 P. 1, §§ 2, 9, 18, 30, 34, 42, 43, 44, 107, 
 
 156, 183, 194, 292, 297, 299, 308a, 326, 
 
 384, 394, 395, 410, 417. 
 
 ALLEGATA ET PROBATA: See Fbustba; 
 
 Departure ; Variance. L. C. 135-137. 
 
 Must correspond. Rushton (5) ; Fish 
 (12c); Bristow (135): cases; C. v. 
 Roby (74): cases; Garland (60). 
 
 Probata cannot supply allegata. R. v. 
 Wheatley (19) ; McLaughlin (31) ; 
 Cruikshank (232) ; Munday (79), et 
 seq.; Borkenhagen (81). 
 
 Codes peremptorilly requires. Munday 
 (79) : cases ; Borkenhagen (81) ; L. C. 
 and maxims; Bristow (135); Eddy 
 (136) ; Perry (136a) ; Wabash (137). 
 §§74a, 231, 135, 385. 
 ALLEGATIONS : See Conclusions of Law 
 
 There must be. Windsor <1) ; Campbell 
 (2-25), et seq.; Rushton (5) ; Mon- 
 tana (106): cases; Bartlett (6); 
 Williams (7) ; Clydesdale (8), et seq.; 
 Sanborn (61) ; Boyd (62) ; Huntsman 
 (231) ; Cruikshank (232), et seq. 
 
 Must be certain. Craswell (10) ; Thomas 
 (10a). See Verba Fortius. R. v. 
 Wheatley (19), et seq.; Moore v. C. 
 
 Omission of not cured by waiver. Camp- 
 bell (2), et seq.; Rushton (5), et 
 seq.; Van Leuven (14), et seq.; Cruik- 
 shank (232), et seq.; Eddy (136). 
 General when sufficient ; what cases. 
 
 JAnson (91) ; Rosen (92). 
 Must not be repugnant. Pain (107). 
 Must affirmatively appear. Crepps (113). 
 A:a requisite for validity of record, for 
 justification defenses. Howard (166). 
 
 ALLEN v. FLOOD: See Lumley (417). 
 
 ALLEN v. S. (203) : Impeachment of wit- 
 nesses. 
 
 ALLEN v. WRIGHT (167): Arrests; Law 
 of. 
 
 ALTERATIONS: Rules of. C. v. Kane 
 (183) ; Master (417). 
 Filling blanks by implication. Angle 
 
 (417) ; Hibblewhite (417). 
 Must be material. Pigot's (417). 
 
 ALTERIUS CIRCUMVENTIO ALII NON 
 prasbet, etc.: A deception practised 
 upon one person does not give a cause 
 of action to another. § 94, 96. 
 
 ALTERNATIVE : Pleadings forbidden. Pain 
 (107). 
 
 AMBIGUA RESPONSIO CONTRA PROFER- 
 entem est accipienda : See Verba 
 Fortius. An ambiguous answer is to be 
 taken against the party who offers it. 
 §§ 82, 91, 217. 
 
 AMBIGUITAS VERBORUM LATENS" : See 
 Construction ; Verba Intentions. 
 
 AMBIGUITY : Ambiguous pleading faulty. 
 Outram (25), et seq.; Lea (30), et seq. 
 
 AMBIGUOUS: See Certainty. Lea (30). 
 
 AMBIGUUM PLACITUM INTERPRETARI 
 debet contra proferentem : Verba for- 
 tius. An ambiguous plea ought to be 
 interpreted against the party pleading 
 It. §§5, 91, 217. 
 
INDEX. 
 
 221 
 
 AMBULATORY: See Certainty; Conserv- 
 ing Principles. 
 
 Pleadings faulty. Kewaunee (29), et seq. 
 AMENDMENTS : Limitations of the right to. 
 
 Walden (139). 
 AMICUS CURIAE : Duties of. Campbell (2) ; 
 
 Waco (300). 
 ANCIENT INSTRUMENTS: Prove them- 
 selves. C. v. Kane (183). 
 ANOTHER ACTION PENDING: Must be 
 
 pleaded. McKyring (33). 
 ANSWER: Must be certain. See Verba 
 Fortius. Skeate (82) ; JAnson (91). 
 
 Must admit or deny. Dickson (34). 
 APPEALS : Not allowed the state if de- 
 fendant is acquitted. 
 APPELLATE PROCEDURE : Is one of the 
 conserving principles. See Preface. 
 To support, the mandatory record is a 
 constitutional implication. See Manda- 
 tory Record. 
 
 "Courts of appellate jurisdiction only." 
 Marbury (142). 
 
 Pundamental requirements to confer juris- 
 diction upon courts of appellate jurisdic- 
 tion. See Mandatory Record ; Statu- 
 tory Record ; Objections ; Excep- 
 tions ; Motion fob New Trial ; As- 
 signment of Error ; Jurisdiction ; 
 Certainty ; Waiver ; Consensus. Wind- 
 sor (1), et seq.; Insurance (157) ; C 
 v. Kane (183) ; L. C. 290a-299. 
 
 Claimant for review must affirmatively 
 show error. McArthur (99) ; Kraner 
 (299) ; See Actore ; Statutory Rec- 
 ord. 
 
 Jurisdiction of "courts of appellate juris- 
 diction only" ; constitutional limita- 
 tions ; conditions. Marbury (142). 
 
 Precise question submitted to lower court 
 is a limit of jurisdiction. Marbury 
 (142). 
 
 Error an appellate court will sua sponte 
 notice, regardless of the relation of the 
 parties named in the record, or of their 
 wishes, or stipulations, or consent or 
 omissions. Windsor (1), et seq. See 
 Waiver ; Conserving Principles. 
 
 Appellate courts are strictly judged by 
 their records. Horan (85) ; Marbury 
 (142); Insurance (157). See Dictum; 
 Usurpation. 
 
 The statutory record is strictly construed 
 against an appellant. Planing Mill Co. 
 v. Chicago (2d) ; Harris (158) ; Bates 
 (225). See Verba Pohtius. 
 
 It must expressly state it contains all the 
 evidence. Bates (225) ; Harris (158). 
 See Verba Fortius. 
 
 Prolixity in record should be avoided. C. 
 v. Kane (183). See Statutory Rec- 
 ord. 
 
 Eeview of abatement, dilatory matters ; 
 conditions. Harkness (152) ; Clyde 
 Mattox (153) ; Wilson (154). 
 
 Discretion, abuse of when a subject of 
 review. Clyde Mattox (153). 
 
 Fundamental right to statement of facts 
 in statutory record. Wilson (154). 
 
 "Waivable error must be made to appear 
 by the statutory record and be duly ex- 
 cepted to. Insurance (157) ; Windsor 
 (1) ; Kraner (299). 
 
 Best evidence required. C. v. Kane (183). 
 
 ■"What ought to be of record must be 
 proved by record and by the right rec- 
 ord." Planing (2<Z) ; Pennowfeski : 
 Preface. C. v. Kane (183). 
 
 Certainty essential ; review matter must 
 appear from the right record. See Cer- 
 tainty. 
 
 Exceptions when necessary must be specific 
 and certain. Harvey (123) ; L. C 
 290O-299. 
 
 APPLICATION OF PAYMENTS. See Ap- 
 propriation of Payments. 
 Rules of observations. Field (387). 
 APPROPRIATION OF PAYMENTS. Rules 
 
 of observations. Field (387). 
 APPURTENANCES. See Accessorium Non 
 
 Ducit ; Way. 
 ARGUMENT OF COUNSEL: Privilege of 
 counsel in argument, liability for de- 
 famation. Hastings (160). 
 Abusive irrelevant argument material er- 
 ror. Brown (161). 
 Is waivable. Brown. 
 ARGUMENTATIVE PLEADINGS FAULTY. 
 See Certainty. Pain (107). 
 Will not support res adjudicate/,. Lea (30) ; 
 Russell (27). See Res Adjudicata ; 
 Verba Fortius. 
 ARMORY (180) : Omnia prmsumuntur con- 
 tra spoliatorem. 
 ARRAIGNMENT AND PLEA : Plea must be 
 of record. Crain v. U. S. ; Hoskins 
 (80) ; Munday (79). 
 And it must formally appear. Crain. 
 ARREST: Law of. See Warrant. L. C. 
 Allen (167). 
 General observations. Allen. 
 ARREST OF JUDGMENT: See General 
 Demurrer ; Collateral Attack ; Non 
 Obstante Veredicto ; Mandatory Rec- 
 ord ; Waiver ; Conserving Principles. 
 Windsor (1): cases; Perez (2e), et 
 seq.; Hitchcock (12) ; et seq. 
 ASHBY (273) : Ubi jus. 
 ASSAULT AND BATTERY : By carrier upon 
 passenger. Kansas City R. R. (357) ; 
 M'Manus (417). 
 ASSENT : See Non Haec ; Subrogation. 
 In contract the intention general discus- 
 sion. Lampleigh (301), et seq.: cases; 
 Boston (320). 
 The request when implied or presumed. 
 
 Lampleigh, et seq. 
 The promise when implied or presumed. 
 
 Lampleigh, et seq. 
 Each party must understand the contract 
 in the same sense. Cooke (321). See 
 Mistake. 
 To terms and conditions in bills of lading 
 
 and tickets. Hollister (354). 
 Non compos mentis persons ; the insane, 
 lunatics, idiots and drunken persons. 
 Molton (413), et seq. 
 Insane persons cannot make a deed, and 
 assume its technical obligations. Molton. 
 Deeds of infants void. Trueblood (417) ; 
 Zouch (417) ; Craig (417). 
 ASSESSMENT. See Taxation. 
 
 In taxation must be certain. Lawrence 
 (132). 
 
 Must be aptly made. Stetson (163). 
 ASSESSOR: Torts of liability. Stetson (163). 
 
 Must assess. P. v. Hastings (146). 
 ASSIGNATUS UTITUR JURE AUCTORIS» : 
 L. C. 394-396. P. 2, §§ 96, 278, 319, 
 395, 397, 398, 404. 
 ASSIGNMENT OF ERRORS: Statutory rec- 
 ord depends upon. Windsor (1) ; Clem 
 (2c) ; when necessary, Planing (2d) ; 
 Perez (2e) ; L. C. 290-299; Clem (2c). 
 ASSIGNMENTS. See Assignatus. 
 
 What may be assigned. Field (84) : cases; 
 Bassett (395) ; Le Neve (396) ; Ryall 
 (397) ; Brice (398). 
 Notice of assignment, when necessary. 
 
 Bassett. 
 Volunteer paying debt of another is not 
 
 subrogated. Boston (320). 
 Assignability may be limited by contract. 
 
 Mueller (417). 
 Of a principal thing carries the security. 
 Nashville (417). 
 ASSUMPSIT : Promise to support ; essen- 
 tials. Lampleigh (301). 
 
222 
 
 DATUM POSTS. 
 
 AUBURN (9) : Demurrer, rules of. 
 
 AUCTION : Sales at, when complete. Payne 
 (307). 
 Bidder may retract before hammer falls. 
 
 Payne. 
 Puffers, bids of, invalid. Payne. See 
 
 Cooke (321); Gulick (364). 
 Both sides must be bound or neither. 
 
 Payne; Cooke (321). 
 Contracts to stifle bidding void. Gulick 
 (364). 
 
 AUDI ALTERAM PARTEM** : Discussed. 
 Windsor (1) ; Pennoyer (58) ; William- 
 son (65). 
 Pp. 2, 4, 7, 10, 11 ; §§ 1, 58, 59, 65, 66, 
 67, 68, 69, 70, 71, 72, 79, 93, 122, 127, 
 183, 217, 219, 222, 225, 264, 266, 267, 
 268, 278, 279. 
 
 AUTHENTICATION OP PUBLIC RECORDS : 
 C. v. Kane (183). 
 
 AUTHORITY: See Jubisdiction ; Agency. 
 
 Must be pleaded. Clem (2c) ; Hopper 
 
 (4) ; Williams (116) ; Tarble's (247) ; 
 
 and proved; Clem (2c). 
 
 Of courts is derived from the record and 
 
 the right record. Windsor (1) ; R. v. 
 
 Wheatley (19) ; Mondel (77) ; Mun- 
 
 day (79). 
 
 One suing in a representative capacity 
 
 must so allege. Dusenbury (412). 
 To divest title to property must appear 
 from the right record. Windsor (1) ; 
 Williams (116); Thatcher (117); 
 Walker (118). 
 
 AVERMENTS : See Allegations ; Plead- 
 ing. 
 
 BAGGAGE : Liability of carrier for. N. Y. 
 R. R. v. Fraloff (355). 
 Baggage check, what it implies. N. Y. 
 R. R. 
 
 BAILEY (44) : Forensic estoppel. 
 
 BAILMENTS: Coggs (350-357). 
 
 BAINBRIDGE (332) : Adequacy of consid- 
 eration. 
 
 BALDEY (337) : Statute of Frauds. 
 
 BANK NOTES. See Commeecial Paper. 
 Like cash pass in delivery. Miller (417). 
 
 BARNARD (108) : Construction of repug- 
 nant clauses. 
 
 BARR (265) : Perjury is a ground for set- 
 ting aside a judgment. 
 
 BARRATY : Contracts of illegal. Holman 
 (363). 
 
 BARRON (241) : State is not bound unless 
 it is named to be bound. 
 
 BARROW (298) : Discretion in procedure. 
 
 BARTHOLOMEW (302) : Gratuitous acts 
 are no consideration. 
 
 BARTLETT (6) : Pleadings must be certain. 
 
 BASSETT (395): Assignments; Priorities. 
 
 BATES (225): Statutes; Construction. 
 
 BAUERMAN (48) : Party directing litiga- 
 tion is bound thereby. 
 
 BAXTER (414) : Contracts of insane per- 
 sons. 
 
 BEARDSLEY (13) : Consent will not confer 
 jurisdiction. 
 
 BEAUMONT (367) : In pari delicto defences. 
 
 BELKNAP (260) : Government as a party 
 to suits. 
 
 BENEDICTA EST EXPOSITIO QUANDO 
 res redimitur a destructione: Blessed 
 is the exposition when a thing is saved 
 from destruction. See Ut Res. § 218. 
 
 BENIGNE FACIEND/E SUNT INTERPRE- 
 tationes chartarum ut res magis valeat 
 quam pereat ; et quselibet concessio for- 
 tissime contra donatorem interpre- 
 tanda est : Liberal interpretations 
 are to be made of deeds, so that 
 more may stand than fall ; and every 
 grant is to be taken most strongly 
 against the grantor. See Ut Res ; 
 
 Magis Valeat ; Benedicta ; Construc- 
 tion. 
 
 BENIGNE FACIENDyE SUNT INTERPRE- 
 tationes propter simplicitatem laicorum 
 ut res magis valeat quam pereat ; et 
 verba intentione non e contra debent 
 inservire : Construction should be 
 liberal on account of the ignorance 
 of the laity, so that the subject matter 
 may avail rather than perish ; and 
 words must be subject to the intention, 
 not the intention to the words. See 
 Verba Intentione ; Construction. 
 
 BEST EVIDENCE: Is required. See Man- 
 datoby Recoed ; "What ought to be of 
 record"; Clem (2c); Ransom (122). 
 Rules. C. v. Kane (183). 
 
 BEVERLEY'S CASE (416) : Contracts of 
 the insane. 
 
 BILL OF EXCEPTIONS : See Statutory 
 Record. 
 
 BILLS : See Commercial P. 
 
 BILLARD (189) : Reasonable doubt. 
 
 BIRKMYR (339) : Statute of frauds. 
 
 BISSELL (42): Demurrers; rules. 
 
 BLACKETT (400) : Oral evidence. 
 
 BLAIR v. READING (170) : Powers of 
 judges at chambers. 
 
 BLAIR v. RIDGLEY (254) : Statutes, when 
 constitutional. 
 
 BLOOM (266): Sunday Laws. See Dies 
 Non. 
 
 BOBEL (250) : Title to statute. 
 
 BOILEAU (43) : Pleadings as evidence. 
 
 BONA FIDE : Offers to contract must be. 
 See Auctions ; Good Faith. 
 Bad faith of vendee avoids sale. Fitz- 
 simmons (384) ; Lickbarrow (394). 
 
 BONA FIDE PURCHASER: Lickbarrow 
 
 (394) ; Bassett (395) ; Le Neve (396). 
 
 Vendee is affected by the fraud of the 
 
 vendor. Fitzsimmons (384). 
 When protected. Lickbarrow (394) ; Le 
 
 Neve (396). 
 Of commercial paper. Swift (417) ; Young 
 
 (417) ; Lickbarrow (394). 
 Of real estate ; notice from possession. 
 
 Williamson (417) ; Le Neve (396). 
 Of chattels and choses in action. Bassett 
 (395). 
 
 BONAPARTE (278) : Injunctions to pre- 
 vent trespass. 
 
 BONESTEEL (151) : Interlocutory proceed- 
 ings are not final. 
 
 BONI JUDICIS EST AMPLIARE JURISDIC- 
 tionem* : §§ 274, 275, 298, 300. 
 
 BONNELL (185) : Burden of proof. 
 
 BOOKS : See Shop Books. 
 
 When, may be read to the jury in crim- 
 inal cases. S. v. Croteau (271). 
 
 BORDEN (267) : Coram non judice proceed- 
 ings. 
 
 BORKENHAGEN (81) : Defences not plead- 
 ed are waived. 
 
 BOSTON ICE CO. (320) : Mistake as to 
 person contracted with. 
 
 BOSTON & MAINE R. R. (331) : Acceptance 
 of offer consummates contract. 
 
 BOWLUS (100) : Pleadings must not be too 
 broad. 
 
 BOYD (62) : Aider by pleading over. 
 
 BRADBURY (35) : Admissions upon the 
 record are conclusive. 
 
 BREACH OF CONTRACT: See Damages. 
 Observations, illustrations outline cita- 
 tion. Cutter (308), et seq.; Hochster; 
 Frost ; Dame. 
 First breach is a breach of all. St. Louis 
 Beef Co. (417). 
 
 BREWER (296) : Motion for new trial es- 
 sential for a review. 
 
 BRICE (398) : Rights of assignees. 
 
 BRISTOW (135) : Allegata et probata must 
 correspond. 
 
INDEX. 
 
 223 
 
 BRITTAIN (50) : A matter adjudicated is 
 conclusively settled. 
 
 BRONSON (238) : Ex Post Facto laws. 
 
 BROOKS (370) : Illegality if too remote is 
 no defence. 
 
 BROWN, EX PARTE (105) : False plead- 
 ings and deception a contempt. 
 
 BROWN v. BUTCHER'S BANK (346) : 
 Names ; what is a name. 
 
 BROWN v. LAMPHEAR (347) : Mistake 
 avoids a contract. 
 
 BROWN v. SPOFPORD (54) : Oral evidence 
 inadmissible to affect commercial paper. 
 
 BROWN v: SWIN-EFORD (16 L) : Arguments 
 of counsel. 
 
 BRUGGER (162) : Joinder of causes. 
 
 BULKLEY (315) : A part consideration 
 will not support a promise. 
 
 BUNN (362) : Wager contracts. 
 
 BURDEN OF PROOF: Bonnell (185), et 
 seq. See Actobe. 
 Commercial paper, possession implies own- 
 ership. Bonnell (185). 
 One relying on a law or a defence must 
 make it appear. Virginia (285a). See 
 De Non Apparentibus. 
 
 BURKS (217a) : Statutes giving civil 
 rights are strictly construed. 
 
 BUTLER (106) : Causing unlawful attach- 
 ment of witness a contempt. 
 
 BYRNE (209) : Res ipsa loquitur. 
 
 CALDER (237) : Ex post facto laws. 
 
 CALIFORNIA (270) : Dead issues will not 
 be reviewed. 
 
 CALYE'S (356): Innkeepers. 
 
 CAMPBELL v. GREER (2a) : Pleadings 
 indispensable ; if lost must be restored. 
 
 CAMPBELL v. PORTER (2) : Parties can 
 not dispense with essential pleadings. 
 Garland (60). 
 
 CANCELLATION OF INSTRUMENTS : See 
 Mistake ; Rescission ; Refobmation ; 
 L C 347-349. 
 
 CAROTTI (179) : Continuity. 
 
 CARRIER: See Common Cabbier. 
 
 CASUS OMISSUS : Case omitted. § 236. 
 
 CATCHING BARGAINS : Thornborow (333) ; 
 Chesterfield (417). 
 
 CAUSE OF ACTION: Must be stated. 
 Campbell (2), et seq.; Rushton (5), 
 et seq.; Mallinckrodt (12a), et seq.; 
 Moore (21) ; Springer (24). 
 Must appear from the right record. 
 Campbell (2) ; Sanborn (61) ; Boyd 
 (62) ; Williamson (65). 
 Must be real and bona fide. S. v. Baugh- 
 
 man (268) ; Weltmer (268a). 
 Elements of essential facts to aver. Lamp- 
 
 leigh (301), et seq. 
 Essential to attract jurisdiction. Camp- 
 bell (2). 
 Sham pleadings can not supply. Won- 
 derly (102). i 
 
 CAVEAT EMPTOR* : Mandatory record 
 gives constructive notice ; Windsor 
 (1) ; Williams (116) ; Thatcher (117) ; 
 Walker (118) ; Lampleigh (301). 
 Pp. 2, 5, 7 ; §§ 19, 79, 218, 375, 376, 377, 
 378, 379, 380, 381, 382, 383. 
 
 CERTAIN: Contracts must be. Kelly (304). 
 Deeds. Elwell (417). 
 Judgments must be. See Judgments. 
 taxation must be. L. C. 124-134. 
 
 CERTAINTY : See Ambiguity ; Duplicity ; 
 Repugnancy. 
 Observations. Windsor (1) ; Dovaston 
 
 (217) ; J'Anson (91). 
 Conserving principles depend on. Camp- 
 bell (2) ; Cruikshank (232). 
 Is reckoned from the conserving princi- 
 ples. Rushton (5) ; Clem (2c) ; Plan- 
 ing (2d) ; Davenport (2f) ; Cromwell 
 (26), et seq. 
 
 All record matter must be certain to sub- 
 serve the conserving principles. Wind- 
 sor (1), et' seq.; R. v. Wheatley (19). 
 
 Criminal proceedings are not more strict 
 and technical than are civil. Wheat- 
 ley. Verba fortius. 
 
 Necessary for res adjudicata. Outram 
 (26); Cromwell (26); Russell (27); 
 C. v. Roby (74) ; Guedell (74a) ; J'An- 
 son (91) ; Harvey (123). 
 
 Pleadings must not be double. Bowlus 
 (100). 
 
 Nor repugnant. Pain (107). 
 
 Each count must be perfect in itself. 
 Haskel (101). 
 
 General statements when sufficient. 
 J'Anson (91) ; Farnam (97) ; King 
 (205). 
 
 To avoid scandal. Rosen (92) ; Whitney 
 (112). See Peolixity. Hastings (160). 
 
 Tested by requirements of conserving 
 principles. Pain (107). See Windsor 
 (1) ; J'Anson (91). 
 
 Degree of required. Dovaston (217) ; 
 Pain (107). See Conseeving Princi- 
 ples. Cruikshank (232). 
 
 Taxation requires. L. C. 124-134. 
 
 Technical requirements essential for pro- 
 tection. Lawrence (132). 
 
 Judgments must be certain. Lawrence 
 (132). 
 
 A matter must be juridically presented 
 before it can be judicially considered. 
 Cruikshank (232). See De Non Ap- 
 parentibus. 
 
 Limitations of liberal construction. Dob- 
 son (232a). 
 
 Contract must be certain. White (303), 
 et seq.; Kelly (304), et seq.; Sherman 
 (305), et seq.; Zaleski (306). 
 
 Commercial paper must be certain ; oral 
 evidence inadmissible to add to ; 
 technical illustrations. Sturdivant 
 
 (410) ; Polhill (411) ; Dusenbury 
 (412). 
 CERTIFICATE OF DOUBT: Waco (300). 
 
 Observations relating to. Waco. 
 CERTIFICATES, OFFICIAL: Effect of in 
 procf. C. v. Kane (183). 
 
 Can include no fact not authorized by law. 
 C. v. Kane. 
 CERTIORARI : Concurrent with appeal. 
 
 White (130). 
 CERTUM EST QUOD CERTUM REDDI Po- 
 test* * : See Certainty ; Praesentia 
 Corpobis. §§126, 22c, 107, 266, 305, 
 334, 346. 
 CESSANTE RATIONE LEGIS CESSAT 
 ipsa lex**: See Reason. §§71, 111, 
 183 224 279 
 CHAMPERTY': See IN Pabi. 
 
 Contracts of illegal. Holman (263). 
 CHANDELOR (374): See Caveat Emptor; 
 Warranty Simplex. See R. v. Wheat- 
 ley. (19). 
 CHARACTER : See Impeachment op Wit- 
 nesses. 
 CHEATING AND FALSE PRETENSES : R. 
 
 v. Wheatley (19). 
 CHECKS : See Commercial Paper. 
 
 Refusal to pay check actionable. Mar- 
 zetti (417). 
 CHOSE IN ACTION: When assignable. 
 Bassett (395), et seq. 
 
 Bona fide purchaser of. Bassett ; Lick- 
 barrow (394). 
 ■ Negligent execution of contract. Williams 
 
 (417). 
 CHRISTIANITY: See Moeality ; Trist. 
 CIRCUMSTANTIAL EVIDENCE: Is high, 
 certain and satisfactory. Hickory 
 (194) ; R. v. Partridge (190), et 
 
224 
 
 DATUM POSTS. 
 
 seq.; Dant (212). See Presumptions ; 
 Every ; Res Ipsa Loquitur. 
 CITIZENS' (186) : Evidence must be cer- 
 tain. 
 CIVIL RIGHTS : Cruikshank (232) ; Burks 
 
 (217a) ; Barron (241). 
 CLARK (2ft) : The right record must pre- 
 sent each material fact. 
 CLEM (2c) : The right record is essential 
 to prove a title founded thereon, or an 
 estoppel. 
 CLEVES (383) : Warranty — Landlord and 
 
 Tenant. 
 CLYDE MATTOX (153) : Abuse of discre- 
 tion reviewable. 
 CLYDESDALE (8) : A cause of action must 
 
 be stated. 
 CODES : Essential requirements cannot be 
 waived. Rush ton (5). 
 
 Are construed to conform to fundamental 
 law. Kewaunee (29). 
 
 Allegations of fact required. Green (90). 
 
 Admissions favored in construction. Dick- 
 son (34): cases; Windsor (1). 
 
 Denials must be certain. Dickson (34) : 
 cases. 
 
 Issues must be definite and certain. Dick- 
 son (34) : cases. 
 
 Appear from the right record. Munday 
 (79). 
 
 Pleadings can not be "fish, flesh or fowl." 
 Kewaunee (29). 
 
 Repetition of matter forbidden. Sturges 
 (111) ; King (205). See Prolixity. 
 
 Prolixity should be avoided. Sturges 
 (111). 
 
 Allegata et probata must correspond. Ed- 
 dy Co. (136). See Variance; De- 
 parture. 
 
 Pleading must be certain. Kraner (299) ; 
 Kewaunee (29). See Certainty. 
 
 Sham pleadings obnoxious. Graver (103) ; 
 P. v. McCumber (110). See Sham 
 Pleadings. 
 
 Repugnant pleadings void. Pain (107). 
 
 The record is the measure of the right, 
 the remedy and of the exercise of power. 
 Borkenhagen (81) ; McLaughlin (31). 
 
 Defences must be pleaded. Munday (79), 
 et seq.; Borkenhagen (81) ; J'Anson 
 (91) ; Field (84). 
 
 Fundamental principles govern. Windsor 
 (1) ; Campbell (2) : cases. J'Anson 
 (91) : cases. See Allegata et Pro- 
 bata; Frustra. Green (90); J'Anson 
 (91) ; Bristow (135) ; Eddy (136). 
 
 Construction of. Dovaston (217) ; In- 
 dianapolis (223) ; Borkenhagen (81). 
 
 Pleadings of are construed against the 
 pleader. Dovaston (217). 
 
 Require sufficient pleadings. Bissell (42) ; 
 J'Anson (91). 
 
 Require certain admissions or denials and 
 issues. Boileau (43) ; Munday (79), 
 et seq.; Borkenhagen (81), et seq. 
 
 Statements of claim ; how made.* Sturges 
 (111). 
 
 Do not abolish technicalities that are 
 safeguards. Eddy (136) ; Kraner (299). 
 COERCION: See Duress. 
 COFFIN (185) : One is presumed innocent 
 
 until proven guilty. Bonnell (185). 
 COGGS (350) : Bailments. 
 COHENS (244) : Dictum. 
 COLLATERAL ATTACK: See Caveat 
 Emptor ; Conserving Principles. 
 
 Observations. Windsor (1) ; Lampleig-h 
 (301). 
 
 Grounds of. Crepps (113) ; L. C. 1-24, 
 74-91. 
 
 Purchaser at judicial sale must take no- 
 tice of mandatory record. Windsor 
 
 (1) ; Clem (2c) ; Williamson (65) ; 
 Crepps (113) ; L. C. 113-134. 
 Ground of cannot be waived. Windsor 
 (1) ; Campbell (2) ; Clem (2c) ; Ran- 
 som (122). 
 Ground of general demurrer may be 
 raised upon. Campbell (2), et seq.; 
 Ransom (122) ; Lampleigh (301). 
 COLLATERAL FACTS : If inquired after 
 answer to is conclusive. R. v. Riley 
 (213-i). 
 COLLECTOR (148): S. P. M'Culloch. 
 COMITY OF COURTS: Freeman (287). 
 See Conserving Principles ; Preface. 
 Jurisdiction attaching in one court ex- 
 cludes all others. Freeman. 
 COMMERCE: Is within federal protection. 
 Logan (249) ; U. S. v. Cruikshank 
 (232). 
 COMMERCIAL PAPER (Bills; Notes): 
 Involves the distinctive elements of con- 
 tract. See Contract ; Assignments ; 
 Negotiable ; Bills and Notes. 
 Originates from convenience, necessity, 
 reason and requirements of the law 
 merchant. Sturdivant (410). 
 Construction of ; is a courier without lug- 
 gage. Sturdivant (410) : cases. 
 Must be certain. Kelly (304). 
 Consideration for presumed. -Rann (312). 
 Possession of is prima facie evidence of 
 
 ownership. Bonnell (185). 
 A fundamental equity underlies the law 
 of. Lickbarrow (394). See Allegans ; 
 Every. 
 Regularity of execution and delivery pre- 
 sumed. C. v. Kane (183) ; Bonnell 
 (185). See Every. 
 Oral evidence inadmissable to affect. See 
 
 Oral Evidence. Sturdivant (410). 
 Great cases : Swift (417) ; Miller (417) ; 
 Sturdivant (410) ; Lickbarrow (394). 
 COMMON CARRIER: L. C. 350-357. 
 
 Liability of as an insurer. Whitney (112). 
 COMMON LAW: English adopted in Amer- 
 ican States. S. v. Moore (222a.) 
 Dominates construction. C. v. Hess (215). 
 COMMON LAW RECORD : See Mandatory 
 
 Record. 
 C. v. BEAN (226) : Indictments under 
 
 statute. U. S. v. Gooding (202). 
 C. v. EASTMAN (22) : Indictments must 
 
 be certain. 
 C. v. GANNETT (213g) : General reputa- 
 tion as proof. C. v. Kane (183). 
 C. v. HART (227) : Provisos in statutes 
 
 how pleaded. 
 C. v. HESS (215) : The common law either 
 limits or expands statutes, and consti- 
 tutions. See Prescriptive Constitu- 
 tion. 
 C v. KANE (183) : Convenience, necessity, 
 
 founds rules of evidence. 
 C. v. MACLOON (172) : Jurisdiction or 
 
 crime. 
 C. v. McKIE (187) : Burden of proof in. 
 
 criminal cases ; reasonable doubt. 
 C. v. ROBY (74) : Former jeopardy, in- 
 dictment must be certain. 
 C. v. ROGERS (199) : Criminal intent; 
 
 drunkenness ; sanity presumed. 
 C. v. YORK (197): One is presumed to 
 intend the consequences of his act. 
 See Every ; Squib Case. 
 COMMUNIS ERROR FACIT JUS**: See 
 Consensus. 
 Practical construction. Maher (255). 
 
 See Construction. 
 §§218, 255, 285, 400. 
 COMPLAINT: What it must contain. See 
 
 Codes ; Allegations. 
 COMPOUNDING CRIME : Contracts for ; ef- 
 fect. Collins (417) ; Jones (417). 
 
INDEX. 
 
 225 
 
 COMPROMISE : As a consideration. Cum- 
 ber (311). 
 There must be a real bona fl.de claim. 
 See Cause of Action ; Mistake. 
 COMPULSION : See Duress ; Assent ; In- 
 tent. 
 COMPUTATION OP TIME: Warren (243). 
 CONCEALMENT: See Deceit. 
 
 Of a material fact; effect. Carter (417). 
 
 CONCLUSION OF LAW: Need not be 
 
 pleaded. Hopper (4), et seq.; Mal- 
 
 linckrodt (12a), et seq.; Cruikshank 
 
 (232), et seq. 
 
 Unavailing for any purpose. Hopper, et 
 
 seq.; Hanford (86) ; J'Anson (91). 
 Is not aided. Hopper (4) ; Dixon (34) : 
 cases. Mallinckrodt (12a) ; Van Cleaf 
 (17). 
 Will not confer jurisdiction. Hanford 
 
 (86). See Conserving Principles. 
 Are insufficient. Farnam (97) ; Crepps 
 (113) ; Blair (254) ; Virginia (285a). 
 Insufficient for. record to protect officer 
 executing process. Howard (166). 
 CONCORDARE LEGES LEGIBUS* : Pp. 1, 
 7; §§ 74, 214, 215, 216, 222, 222a, 
 223, 224, 225. 
 CONDITION : See Covenants ; Deeds ; 
 Leases. 
 Construction of. Spencer's (417). 
 CONDITIONAL SALE : See Sales. 
 CONDUCTORS (294) : Appellants must af- 
 firmatively show error ; rehearings con- 
 fined to the same case. 
 CONFESSIONS : Corpus delicti cannot be 
 proved by. Matthews (193). 
 By accomplices. U. S. v. Gooding (202). 
 One cannot criminate himself. See Nemo 
 Tenetur. 
 CONFIRMATION. Judicial sales must be 
 confirmed. Clarke (2o) ; Williamson 
 (65). 
 
 CONFUSION AND ACCESSION : Trespasser 
 building upon lands of another ; rights 
 of. Bright (417) ; Jewett (417). 
 CONSENSUS TOLLIT EHROREM*' : See 
 Consent ; Contract. The acquies- 
 cence of a party who might take ad- 
 vantage of an error, obviates its effect. 
 Illustrations: cases 290-299. 
 Pp. 4, 6, 7 ; §§ 2, 2c, 18, 42, 60, 62, 69, 
 71, 72, 83, 84, 135, 137, 142, 151, 
 185, 186, 194, 230, 242, 264, 290a, 
 290c, 292, 293, 296, 297, 299. 
 CONSENT : See Contract ; Consensus. 
 Cannot confer jurisdiction of subject mat- 
 ter. See Jurisdiction. Windsor (1) ; 
 Campbell (2) ; Perez (2) ; Fletcher 
 (18) ; Israel (83). 
 Jurisdiction must appear from proper 
 record matter. Campbell (2) ; Peo- 
 ple's Bank (12d) ; Beardsley (13). 
 CONSERVING PRINCIPLES : Enumera- 
 tion of. See Preface (Datum Posts). 
 Dominate construction. Indianapolis 
 
 (223) ; Bates (225) ; J'Anson (91) ; 
 Dovaston (217) ; C. v. Roby (74). 
 Mandatory requirements for. Windsor 
 
 (1). 
 Influence construction. Planing (2d) ; 
 exhibit, when a part of the record. 
 Planing. 
 Are the datum posts of construction. R. 
 v. Wheatley (19). See Preface. J'An- 
 son (91), et seq. 
 Certainty a requirement for. J'Anson ; 
 Pain (107). See Certainty. 
 CONSIDERATION: L. C 301-333. See 
 Ex Nudo Pacto. 
 And assent are the heart and vitals of 
 a contract. See Assent ; Non Haec 
 in Foedera Veni ; Prescriptive Con- 
 stitution. 
 
 15 
 
 Illegality. In pari delicto — Public pol- 
 icy — L. C. 358-373. 
 
 There is no wronged party before a court, 
 who did not give a. Lampleigh (301) ; 
 Bartholomew (302). 
 
 Ex nudo pacto non oritur actio, from the 
 Roman involves an inquiry after the 
 "cause of action." Lampleigh (301) ; 
 White (317) ; Beaumont (367) ; Welt- 
 mer (268a) ; See Mistake ; Impos- 
 sibility ; Compromise ; Cause of Ac- 
 tion ; Pactis ; Fabula Non Judicium ; 
 Prescriptive Constitution. 
 
 Inquiry after is never foreclosed unless 
 promise is under seal, or illegal. Col- 
 lins (417). See Mistake; Compro- 
 mise ; Deed. 
 
 A seal conclusively imports. Rann (312). 
 See Deed. 
 
 Commercial paper prima facie imports. 
 Rann (312) ; Lampleigh (300). 
 
 Must be alleged in pleading all simple 
 contracts, except commercial paper. 
 Rann (312) ; Lampleigh (312). 
 
 And affirmatively proved. Rann (312). 
 See De Non Apparentibus. 
 
 Must move at the time of the request 
 or after the request else it is a 
 gratuity, and no cause of action. 
 Lampleigh (301) ; Bartholomew (302) ; 
 Cook (314) ; Bulkley (315) ; Mills. 
 
 Pleading of contract must allege the tech- 
 nical essentials for protection. Lamp- 
 leigh (301). See Prescriptive Con- 
 stitution. 
 
 Convenience and necessity dispenses with 
 allegations and proofs on deeds, and 
 commercial paper. Rann (312) ; C. v. 
 Kane (183). See Salus ; Prolixity. 
 
 Protection requires allegations and proof 
 of. See Actohe ; Prescriptive Con- 
 stitution ; Cause of Action ; Alle- 
 gations. 
 
 Facts not conclusions must be pleaded. 
 See Facts ; Conclusions. 
 
 "At instance and request," allegation of- 
 Lampleigh (301). 
 
 It is no consideration to do a part of 
 all that which one has already bound 
 himself to do. Cumber (311), et seq.; 
 Stilk (313). See Accord and Satis- 
 faction. 
 
 Adequacy of is never inquired after. 
 Cumber (311) ; Bainbridge (332) ; 
 Thornborow (334). 
 
 Moral obligation is not ; there must be 
 the wronged party complaining. Lee 
 (318); White (317); Cook (314), et 
 seq.; Bartholomew (302). 
 
 Must be real and substantial to make the 
 wronged party essential for a cause of 
 action. White (317) ; Beaumont (367) ; 
 Weltmer (268a). 
 
 But is is held a consideration accepted 
 by one will support his promise to a 
 third person. Hendrick (319) ; Lang- 
 ridge (417) ; Thomas — Drug (417). 
 
 Trust and confidence given by one raises 
 an implied promise that will support 
 a cause of action. Coggs (350). 
 
 Negligence and tortious acts can not be 
 returned for trust and confidence given 
 the wrongdoer. Coggs (350). See- 
 Malicious Acts. 
 
 A volunteer or bailee must give care and 
 good faith for the trust and confidence 
 reposed in him. Coggs (350). See 
 Nullus Commodum. 
 Judges must open their records and give 
 the matter they present consideration. 
 Clyde Mattox (153). 
 CONSTITUTIONALISM : See Government ; 
 Conserving Principles. 
 
226 
 
 DATUM POSTS. 
 
 Mandatory requirements. Windsor (1). 
 
 Division of state power. L. C. 142-146. 
 
 Maxims of government. See p. 11 ; Gay 
 (138) ; Prescriptive Constitution. 
 CONSTITUTIONAL LAW: See Prescrip- 
 tive Constitution. 
 
 Constitutions deal in general language ; 
 they do not deal in codes and details. 
 Murray (219). 
 
 They are given a common law meaning. 
 Murray (219). 
 
 Is derived from the Roman and Norman 
 races. See Preface (Datum Posts) ; 
 Prescriptive Constitution. Windsor 
 (1) ; Waco (300) ; Lange (159). 
 
 Names officials and tribunals and confers 
 jurisdiction. Marbury (142). 
 
 Fundamental principle annexes itself by 
 implication. See Prescriptive Consti- 
 tution. Trist (214), et seq.; C. v. 
 Hess (215). 
 
 The prescriptive, limits or expounds the 
 words in organic law. See Preface ; 
 Prescriptive Constitution. Murray 
 (219), et seq. 
 
 Ex post facto laws. Bronson (238). 
 
 Impairing the obligation of contracts. 
 Bronson (238), et seq. 
 
 States are only bound where they are 
 named to be bound. Barron (241). 
 
 General limitations in the federal consti- 
 tution do not apply to the states. Bar- 
 ron. 
 
 Constitutions are construed in the light 
 
 o£ old law. Work (242). 
 Eights given Under defenses of. Royall 
 (284) ; Kelly (285) ; Virginia Coupon 
 cases (285a). 
 
 Imprisonment in violation of remedy. 
 Royall. 
 
 Proceedings in violations of are coram 
 non judice. Kelly (285). 
 
 Waiver of constitutional rights. Kelly 
 (285), et seq. 
 
 Limitations of indebtedness by municipal 
 corporations. Beard (417) ; S. v. Bor- 
 den (216). 
 CONSTRUCTION: See L. C. 213-260; 
 Maxims. 
 
 Of judicial records L. C. 113-134 et seq. 
 
 The prescriptive constitution presents the 
 Datum Posts of construction. See 
 Preface (Datum Posts). Waco (300). 
 
 Conserving principles of procedure depend 
 upon. J'Anson (91) ; Pain (107) ; 
 Bates (225) ; C. v. Hess (215) ; Bates 
 (225) ; Oakley (222) ; Indianapolis 
 (224) ; C. v. Roby (74) ; Bissell (42) ; 
 Dovaston (217). 
 
 Observations on. Windsor (1) ; J'Anson 
 (91). 
 
 Must be uniform at all stages. Windsor 
 (1) ; R. v. Wheatley (19) ; Bissell 
 (42) ; Dovaston (217). 
 
 All compacts may be valid in part and 
 void in part. Spraigue (236) ; Mallan 
 (373) ; Pigot's (417). 
 
 Practical ; rule relating to. Noble (251) ; 
 Maher (255). Communis. 
 
 Of contracts, how affected by custom. 
 Wigglesworth (399), et seq.; L. C 
 399-403. 
 
 Commercial paper, how construed ; Ut res 
 magis; Verba fortius; Sturdivant (410- 
 412), et seq. 
 
 It is a courier without luggage. Dusen- 
 bury (412). 
 CONSTRUCTIVE NOTICE: See Conserv- 
 ing Principles ; Caveat Emptor. 
 
 Observation. Windsor (1) ; Lampleigh 
 (301). 
 
 Fundamental requirements. Williamson 
 (65) ; Clem (2c) ; Lampleigh (301). 
 
 CONTEMPORANEA EXPOSITIO EST OPTI- 
 ma et fortissima in lege** : See Prac- 
 tical Construction; Construction. 
 §§218a, 242, 244, 251, 255, 301, 401. 
 CONTEMPTS : May be concurrently pun- 
 ished. U. S. v. Perez (69). 
 Sham pleadings are. Wonderly (102). 
 CONTINUITY: Rule of; presumption of. 
 Carotti (179) ; McNaghten (195). See 
 Every. 
 Aids formation of contract. Adams (326). 
 Constructive notice involves. Carotti 
 (179). 
 CONTRACT: L. C. 301-417. 
 
 A leading subject. See Preface. 
 Procedure lies at the base of. Windsor 
 
 (1) ; Lampleigh (301). 
 Elements : Cases 301-417. 
 
 The offer, request, assent, acceptance, 
 301-333. 
 
 The consideration. Ex nuda pacto, 301- 
 333. See Consideration. 
 
 The statute of frauds. 335-341. 
 
 Certainty. 304-307, 335-341. 
 
 There must be a subject matter in exist- 
 ence to contract about. Kyle (348) ; Tar- 
 ling (404). See Mistake; Compro- 
 mise ; Impossibility ; Cause of Ac- 
 tion. 
 
 Legality of subject matter. In pari de- 
 licto, 358-373 ; Osgood (417) ; Whit- 
 worth (417). 
 
 Parties may contract as they choose if 
 only legally. Osgood (417) ; Jordan 
 (324), et seq. 
 
 Contracts by agents. 342-345 ; Sturdi- 
 vant (410), et seq. 
 
 Quasi or implied contracts. Cutter (308) ; 
 Boston (320). 
 
 Classification of. Rann (312). 
 
 Bailments. Coggs ; 350-357. 
 
 By letter. Adams (326), et seq.: Pat- 
 rick (417). 
 
 Offer under seal is irrevocable. Ellis 
 (389). 
 
 Technical effect of seals. Ellis. 
 
 Parties cannot contract, stipulate nor 
 consent away the mandatory require- 
 ments of a constitutionalism. Campbell 
 
 (2) ; Garland (60) ; French v. Miller 
 (417) ; Peoples Bank (12d). 
 
 Consensus tollit errorem; limitations of. 
 
 Windsor (1) ; Pacta; French (417). 
 Waiver ; what may be stipulated or con- 
 sented away. Windsor ; Campbell (2) ; 
 
 Peoples Bank (12<Z) ; Cruikshank (232) ; 
 
 L. C. 290-299, et seq. See Salus ; 
 
 Communis ; Modus. 
 Procedure ; stipulations in relation to ; 
 
 limitations. Campbell (2) ; French. 
 Consent can not supply allegata. Peoples 
 
 Bank (12d) ; Campbell (2) ; Thomas 
 
 (15) ; contra cases; C. v. Roby (74). 
 Negotiations for ; complete when. White 
 
 (303) ; Tyler (417). See Sale. 
 CONTRIBUTION : Doctrines. Dering (417) ; 
 
 Merry weather (417). 
 CONVENIENCE : Maxims : Quod est incon- 
 
 veniens; Argumentum ab inconvenienti. 
 
 See Conserving Principles. 
 Influences many rules of evidence. C. v. 
 
 Kane (183). See Salus. 
 Procedure affected by; illustrations. C. 
 
 v. Kane : cases. 
 Declarations against interest rest on. Hig- 
 
 ham (213c), et seq. 
 Shop books, admissibility. Price (213f). 
 General reputation. C. v. Gannett (213fl0. 
 And necessity are influencing factors of 
 
 rules of procedure. C. v. Kane (183). 
 
 See Consideration ; Presumptions ; 
 
 Every ; Salus. 
 
INDEX. 
 
 227 
 
 COOK (314) : Consideration must move at 
 
 or after the request. 
 COOKE (321) : Both sides must be bound 
 
 or neither. 
 COOPER (403) : Custom to affect contract. 
 COOPER v. REYNOLDS : 10 Wallace 365 ; 
 
 stated J 'Anson (91). 
 COPIES : Of documents ; how proved. C. 
 
 v. Kane (183). 
 COPYRIGHT : Registration of ; priorities. 
 
 Le Neve (396). 
 CORAM JUDICE : See Usurpation ; Coram 
 
 Non Judice. 
 Proceedings. See Windsor (1) ; Horan 
 
 (85); Qebile ; Mandatory Record. 
 Authority of courts depend upon their 
 
 records. Windsor (1) ; Munday (79) ; 
 
 Horan (85) ; Cohens (244) ; Bloom 
 
 (266) ; Borden (267) ; Weltmer (268a). 
 Dicta of courts do not bind. Horan ; 
 
 Cohens (244). 
 
 Illustrations. Windsor ; Horan ; Harvey 
 
 (123) ; Debile; Crepps (113) ; Piper 
 
 (114), et seq.; Lampleigh. 
 
 CORAM NON JUDICE: Illustration. 
 
 Kempe's (315) ; Lampleigh (301). See 
 
 Windsor (1), et seq.; Crepps (113), et 
 
 seq.; Needham (261) ; Starbuck (263) ; 
 
 Ferguson (264) ; Bloom (266) ; Borden 
 
 (267) ; S. v. Baughman (268) ; Weltmer 
 (268a) ; Watkins (269) ; California 
 (270). 
 
 CORNFOOT (385) : The fraud of the agent 
 
 is the fraud of the principal. 
 CORPORATE EXISTENCE: Allegation of 
 what sufficient. Harris (229) ; Rich- 
 ardson (230). 
 May be waived, contra cases. Harris. 
 CORPORATIONS : Books of, how proved. 
 C. v. Kane (183) ; Iverslie (46). 
 Foreign ; power to do business. Cooper 
 
 (417) ; Kirven (417). 
 Municipal. Hill (417) ; Hitchcock (417) ; 
 Salt Lake (417). See Quasi; County. 
 Liable for torts of agents. Craker (417) ; 
 M'Manus (417). 
 CORPUS DELICTI : The commission of a 
 crime must be proved in felonies. Mat- 
 thews (193). 
 CORROBORATION : Of accomplices. U. S. 
 
 v. Gooding (202). 
 COUNSEL: Privilege of. Hastings (160). 
 COUNSELMAN (178) : Nemo Tenetur. 
 
 Crimination of witnesses. 
 COUNTER CLAIM; SET OFF; RECOUP- 
 ment ; reconvention: Mondel (77). 
 See Defences. 
 COUNTERFEITING : Possession of the fruits 
 or means of crime is prima facie evi- 
 dence of guilt. U. S. v. King (192). 
 COUNTS : Each must be perfect. Haskel 
 (101). 
 When one may refer to another. Waters 
 (70-71). 
 COUNTY : Can only make such contracts as 
 statutes permit. Williams (322) ; White 
 (417). 
 COURTS : Are bound by their records. 
 Windsor (1), et seq.; Munday (79), 
 et seq.; Horan (85) ; J'Anson (91). 
 Superior and inferior distinctions ; Crepps 
 (113) ; L. C. 113-134. 
 COVENANTS : Construction of. Spencer's 
 (417). 
 To rebuild in lease. Hallett (308d). 
 CRASWELL (10) : What is not alleged is 
 
 presumed not to exist. De non. 
 CREPPS (113) : Inferior and Superior 
 
 Courts. Presumptions of regularity. 
 CRIMEN TRAHIT PERSONAM: The crime 
 
 carries the person. 
 ■CRIMES: Jurisdiction of. R. v. Keyn 
 
 (171) ; C. v. Macloon (172) ; R. v. 
 
 Lewis (173); Mostyn (274). 
 
 From failure to discharge obligation. R. 
 
 v. Conde (417) ; R. v. Morby (417). 
 
 CRIMINAL LAW : See Actus Non Facit 
 
 Reum. 
 CROMWELL (26) : Elements of res adjudi- 
 
 cata. 
 CROSS EXAMINATION OF WITNESS : 
 Right to is fundamental. Wright (201). 
 CUICUNQUE ALIQUIS QUID CONCEDIT 
 concedere videtur et id, sine quo res 
 ipsa esse non potuit : Whoever grants a 
 thing is supposed tacitly to grant that 
 without which the grant itself will be 
 of no effect. § 249. 
 CUILIBET IN SUA ARTE PERITO EST 
 CREDENDUM: Credence should be 
 given to one skilled in his profession. 
 §195. 
 CUJUS EST DOMINIUM EJUS EST PERI- 
 CULUM : The risk lies upon the owner 
 of the subject. §§ 3083, 404. 
 CUJUS EST INSTITUERE**: §§ 2e, 118, 
 123, 147, 159, 216, 233, 244, 249, 277, 
 298, 308. 
 CULPA TENET SUOS AUCTORES : A fault 
 
 binds its own authors. § 394. 
 CUMBER (311) : Accord and satisfaction, 
 
 consideration. 
 CUSTODIA LEGIS : Property in, cannot be 
 seized by another court. Freeman 
 287. §§ 107, 287. 
 CUSTOM AND USAGE: A custom contrary 
 to a statute is bad. Noble (251) ; Ma- 
 her (255). 
 Cannot be proved to affect contract. Wig- 
 glesworth (399-403) ; Vogt (324). 
 CUTTER (308) : Entire ; Installment Con- 
 tracts ; Breach of. 
 DA COSTA (361) : Wager contracts. 
 DAMAGES : Exemplary when allowed. Wag- 
 ner (290). 
 May be fixed, stipulated by contract. Kem- 
 
 ble (391) ; Peachey (393). 
 Malicious acts causing, actionable. See 
 
 Malicious Acts. 
 One must minimize. Smeed (417). 
 DAME (308c): Entire contract; destruc- 
 tion of subject matter ; whose loss. 
 Hallett (308<2). 
 DANT (212): Circumstantial; sufficient 
 
 evidence. 
 DASH (237a) : Retrospective laws ; pre- 
 scriptive constitution. 
 DAVENPORT (2e) : Every presumption is 
 
 made against a pleader. 
 DAYS OF GRACE : See Commercial Paper ; 
 
 Computation of Time. 
 DEBILE FUNDAMENTUM FALLIT OPUS* : 
 See Collateral Attack. P. 11, §§ 1, 
 2, 2c, 2f, 5, 12, 19, 34, 60, 74, 79, 
 85, 102, 107, 113, 115, 121, 132, 217, 
 232, 244, 264, 291, 301. 
 DECEIT : Pasley (375) ; R. v. Wheatley 
 (19). 
 Liability of agent assuming authority. 
 
 Polhill (411), et seq. 
 Of partners; effect. Patrick (417). 
 DECLARATIONS : Against interest. See 
 
 Hearsay. Higham (213c). 
 DEEDS : See Oral Evidence. 
 
 Import a consideration. Cumber (311) ; 
 
 Rann (312) ; Jackson (417). 
 Are a class of contract. Rann (312). 
 Delivery; acceptance of. Welborn (388). 
 Technical effect of seals. Ellis (389). 
 How signed by agent ; principal's name 
 must be disclosed. Sturdivant (410), 
 
 Recitals in; effect; estoppel. Christmas 
 (417) ; Young (417). 
 
228 
 
 DATUM POSTS. 
 
 Construction. Coooh (417) ; Heaton (417) ; 
 Shelley's (417). 
 
 Certainty required ; technical doctrines, 
 Ellwell (417) ; Sturdivant (410), et 
 seq. »- 
 
 Metes and bounds control course and dis- 
 tance. Heaton (417). See Praesentia 
 Corporis. 
 
 Non compos mentis persons cannot make, 
 e. g., an infant. Trueblood (417) ; 
 Craig (417). See Zouch (417) ; Mol- 
 ton (413). 
 DEFAMATION : Exact words must be plead- 
 ed. Rosen (92) ; J'Anson (91). 
 
 By counsel. Hastings (160). 
 DEFAULT ; SETTING ASIDE : What it 
 
 admits. Mondel (77). 
 DEFECTS : Of pleading when waived. See 
 
 Aider. 
 DEFENCE : A defence must be pleaded. 
 Cromwell (26) ; McKyring (33) ; Bor- 
 kenhagen (81), et seq. 
 
 Are waived unless pleaded. Borkenhagen ; 
 Virginia Coupon Cases (285a). 
 
 Statements of are strictly construed. 
 
 Skeate (82). See Verba Fortius, De 
 
 Non Apparentibus ; Ambigua Respon- 
 
 sio. 
 
 DEFENDANTS : Are favored. See Favora- 
 
 bilioees ; De Non Apparentibus. 
 DELAY : Due administration of the laws ; 
 
 delays of observations. Waco (300). 
 DELEGATUS NON POTEST DELEGARE : 
 A delegate or deputy cannot appoint 
 another. Van Slyke (177). See Ju- 
 dice. § 309. 
 DELIVERY : See Acceptance. 
 
 Of deeds. Welborn (388). 
 DE MINIMIS NON CURAT LEX: The law 
 does not concern itself about trifles. 
 §§132, 183, 185, 286, 298, 302. 
 DEMURRER : Grounds of the general never 
 waived. Windsor (1) ; Campbell (2) : 
 cases; Auburn (9) ; L. C. 1-25, 74-85, 
 etc. ; McAllister (3) ; Hopper (4) ; 
 Rushton (5), et seq.; Lampleigh (301). 
 
 Leading rules of. Auburn (9) ; Bissell 
 (42) ; Mallinckrodt (12a). 
 
 Admissions by. Bissell (42). 
 
 Functions of. Bissell. 
 
 What is waived by not demurring. Bis- 
 sell (42) ; Mallinckrodt (12a). 
 DENIAL: See Dickson; Boileau (34-44). 
 See Admission ; Issue ; Jurisdiction. 
 
 Essential for initial. Dickson (34), et seq. 
 
 Admission controls denial. Dickson. See 
 Verba Fortius. 
 
 A plea of confession limits and controls 
 a general denial. Dickson. 
 
 Alternative and repugnant pleadings void.. 
 Dickson; Pain (107). 
 
 Pleadings ought to be true. Dickson ; 
 Graver (103). 
 
 Facts admitted need not be proved. Dick- 
 son (34). 
 
 Pleadings are evidence. Dickson (34). 
 
 Verified answer has the effect of a wit- 
 ness when. Dickson. 
 
 Upon information and belief. Humphreys 
 (38). 
 . Must be bona fide. Humphreys (38) ; 
 Graver (103). 
 
 Sham ineffectual. Dickson (34) ; Garland 
 (40) ; Graver (103). 
 DENNETT (145) : Division of state power. 
 DE NON APPARENTIBUS ET NON EX- 
 istentibue eadem est ratio**: Illustrat- 
 ed. Moore (21) ; Cruikshank (232). 
 
 Claimant of a right must make it appear 
 by a proper record. Windsor (1), et 
 seq.; Planing (2d) ; R. v. Wheatley 
 
 (19), et seq.; Stubbings (49) ; Pen- 
 nowfeski : Preface (Datum Posts). 
 And by sufficient description. Gibler (96) ; 
 
 Kraner (299). 
 Service of process or appearance must ap- 
 pear of record. Pennoyer (58) ; Rick- 
 elson (59). 
 Jurisdictional facts must affirmatively ap- 
 pear. Campbell (2) ; Crepps (113). 
 A fundamental rule of protection. P. 11.. 
 
 See Actore ; Frustra. 
 Pp. 3, S, 7 ; §§ 1, 2, 2c, 6, 7, 9, 10a,. 
 20, 23, 34, 35, 42, 60, 73, 74, 79, 82, 
 84, 85, 86, 87, 90, 91, 114, 115, 121,. 
 123, 127, 135, 136, 164, 183, 206, 209, 
 217, 224, 225, 231, 233, 264, 268, 299,. 
 301, 308, 312. 
 
 DEPARTURE : See Frustra ; Allegata et- 
 Probata; Expbessio Unius. 
 There shall not be a. Windsor (1) ; Mun- 
 day (79) ; Borkenhagen (81) ; Bristow 
 (135). 
 
 DEPUTRON (121) : Inferior tribunals ; rec- 
 ords of ; burden of proof. 
 
 DESCRIPTION : Of . cause of action essen- 
 tial. See Pleading ; Allegation ; As- 
 signment of Error ; Sales ; Certainty. 
 Gibler (96) ; Kraner (299). 
 
 DESCRIPTIO PERSONS WORDS: See 
 Sturdivant (410). 
 
 DICKSON (34) : Denials, admissions, is- 
 sues. 
 
 DICTUM: Dicta do not bind. Cohens (244) ;. 
 Houston (245). 
 A court is bound by its record. Cohens. 
 
 DIDSBURY (213) : Hearsay evidence. 
 
 DIES DOMINICUS NON EST JURIDICUS* : 
 See Hauswirth (51) ; Sunday. S. v. 
 Conwell (174), et seq. Pp. 5, 9 ; §§ 174, 
 174a, 369. 
 
 DIGGLE (371) : Duty to abandon illegal 
 
 ('OR l FfLC t 
 
 DILATORY, ABATEMENT PLEADINGS ARC 
 strictly judged. Kraner (299). 
 
 DIMES (176) : Disinterested judge a funda- 
 mental right. See Nemo Debet Esse 
 Judex. 
 
 DINEHART (279): Injunctions; practice. 
 
 DIRECTING A VERDICT: Bonnell (185) ; 
 S. v. Croteau (271). 
 
 DIRECTORS OF A CORPORATION: Lia- 
 bility for torts. Loses (210). 
 
 DIRECTORY STATUTES: See Statutes. 
 Bates (225) ; Indianapolis (223). 
 
 DISCOVERY: When court will order before- 
 trial. C. v. Kane (183). 
 
 DISCRETION : As an element in procedure. 
 Barrow (298). 
 Refusal to consider application for is 
 abuse of power. Windsor (1) ; Clyde- 
 Mattox (153) ; Barrow (298). 
 
 DISJUNCTIVE : Pleadings must not be. 
 Pain (107). 
 
 DISORDERLY HOUSES : General reputa- 
 tion to prove. C. v. Gannett. 
 
 DITCHBURN (359) : Wager contracts. 
 
 DIVINE LAW : Influences construction. 
 Trist (214). See Morality; Summa 
 Ratione. 
 
 DIVISION OF STATE POWER. Marbury ; 
 P. v. Maynard ; P. v. Hastings ; Den- 
 nett ; Flournoy ; L. C. 142-46 ; Van 
 Slyke (177). 
 
 DIVORCE : Contracts facilitating are void. 
 Holman (263). 
 
 DOBSON (232a) : Limitations of liberal con- 
 struction of pleadings. 
 
 DOLUS VERSATUR IN GENERALIBUS : 
 Those who would deceive speak in gen- 
 eralities. See Conclusions of Law; 
 Verba Fortius. § 91. 
 
 DOMUS SUA CUIQUE EST TUTISSIMUM 
 refugium : Every man's house is his 
 castle. 5 167. 
 
INDEX. 
 
 229 
 
 DOVASTON (217) : Verba fortius. 
 DRAYTON (213) : Hearsay evidence ; when 
 
 admissible. 
 DRUNKARDS; DRUNKENNESS: When a 
 defense to crime. P. v. Roger (198) ■ 
 C. v. Rogers (199). 
 Contracts of. Gore v. Gibson (416). See 
 Insane. 
 DUB ADMINISTRATION OF JUSTICE : See 
 
 Government ; Delay. 
 DUE PROCESS OF LAW: See Constitu- 
 tional Law ; Audi ; De Non Appar- 
 entd3ws ; frustra. 
 A conserving principle. See Preface ; 
 Windsor (1), et seg.; State v. Thurstin 
 (23) ; Springer (24) ; Outram (25) ; 
 Huntsman (231) J Cruikshank (232) ; 
 Logan (249). 
 Sale of decedent's lands ; requirements. 
 
 Mohr (68) ; L. C 113-134. 
 Taxation involves. Nixon (127), et seg. 
 Fundamental elements ; what constitutes. 
 Murray (219), et seg.; Huntsman 
 Cruikshank (232) ; Logan 
 
 observations. Murray (219) 
 
 (231) 
 (249). 
 Definition 
 Logan. 
 
 Power of legislature to make certain pre- 
 sumptions conclusive evidence. S. v. 
 Thomas (257); S. v. Beach (258). 
 Fraud will vitiate. L. C 261-270. 
 Guaranty of the 14 Amendments quoted. 
 Barron (241). 
 DUE PROCESS OF LAW RECORD: See 
 
 Mandatory Record. 
 DUNLAP (108): Exemptions from arrest; 
 
 service of process. 
 DUPLICITY: Pleading must not be double. 
 Bolus (100). 
 Nor repugnant. Pain (107). See Al- 
 legans. 
 DURESS : See Assent ; Undue Influ- 
 ence ; Fraud; Sasportas (417); 
 Watkins (417). 
 DUSENBURY (412) : Agent binds himself 
 
 if not his principal. 
 DUTTON (381) : Warranty of leased prem- 
 
 EASTWOOD (336): Statute of Frauds; 
 Moral obligation is sufficient. 
 
 EDDY (136) : Allegata et probata must cor- 
 respond. 
 
 EDWARDS v. KEARZEY (286) : Vbi Jus. 
 
 EDWARDS v. MINING CO. (282) : Equity 
 will not aid a speculator. Seabury 
 (281). 
 
 EI INCUMBIT, etc. : The burden of the proof 
 lies upon him who affirms, not him 
 who denies. §§ 206, 209. 
 
 EJUSDEM GENERIS : Of the same descrip- 
 tion.' Burks (217a). See Noscitur. 
 §§19, 217a. 
 
 ELECTION: In equity; Streatfield (417). 
 
 ELECTION OF REMEDIES: General dis- 
 cussion. Smith (156). See Allegans. 
 An election once made is final and con- 
 clusive. Smith. Estoppel from con- 
 duct. Bailey (44). See Estoppel. 
 Waiving tort and suing in contract. 
 Smith. 
 
 ELIASON (330) : Letters contract by. 
 
 ELLIS (389) : Release under seal effect. 
 
 ELMORE (409) : Sales; Acceptance; Change 
 of possession. 
 
 ENTIRE CONTRACTS: General discussion, 
 observations, illustrations. Cutter (308). 
 
 EQUAL PROTECTION UNDER THE LAW : 
 See Constitutional Law. 
 
 EQUITABLE ESTOPPEL. Lickbarrow 
 
 (394) ; Horn (417). See Allegans 
 Estoppel. 
 Fundamental principal supporting. Lick 
 barrow; Bassett (395). Le Neve (396) 
 
 EQUITABLE EXCEPTIONS TO THE STAT- 
 
 ute of Frauds: Oral sale of land; when 
 enforceable. Lester (341). 
 EQUITY: See Vbi Jus. 
 
 Jurisdiction of over Judgments. L. C. 
 
 261-270. 
 Over non-residents. Penn (275). 
 Specific delivery of chattels. Pusey (276). 
 To restrain trespass. Bonaparte (278). 
 To restrain crime. Hamilton (280). 
 Injunctions ; General observations relating 
 to. Dinehart (279). 
 EQUITY : Suffers not a wrong without a rem- 
 edy. R. R. v . Greer (283). 
 EQUITY ATTACHING FOR ONE PURPOSE 
 
 attaches for all*: Brugger (162). 
 EQUIVOCAL OBJECTIONS: Are unavail- 
 ing. See Certainty ; Appellate Pro- 
 cedure. 
 EQUIVOCAL PLEADINGS : Insufficient. 
 
 Pain (107). 
 ERROR : See Appellate Procedure ; Ex- 
 ceptions. 
 Must affirmatively appear. Gibler (96) ; 
 Kraner (299). 
 ESTOPPEL : 
 
 Of record; how proved. Clem (2e). 
 Entire mandatory record essential to 
 
 prove. Clem (2e). 
 Depend on certain pleadings. Outram 
 
 (25), et seg. 
 Must be pleaded. Wright (28). 
 Are odious, and must be certain to every 
 
 intent. Lea (30). 
 Shown from mandatory record conclusive. 
 Dickson (34), et seg.; Boileau (43) ; 
 Bailey (44) ; Iverslie (46), et seg. 
 Forensic, illustration. Bailey (44). 
 Four kinds of, enumeration. Bailey. 
 Equitable. See Allegans. Bailey. 
 Of record. See Res Adjudicata ; Outram 
 
 (25), et seg. Kingston (76). 
 Fraud vitiates an adjudication. Kingston 
 
 (76) ; Watkins (417). 
 Last estoppel prevails. Trevivan (78). 
 Against, sets the matter free. Pain (107). 
 Contract from operations of ; waiving tort 
 and suing in assumpsit. Smith (156). 
 See Election op Remedies ; Quasi Con- 
 tracts. 
 From pleadings ; records. C. v. Kane 
 (183) ; Bailey (44). 
 EVANS (360) : Wager contracts. 
 EVERY ACT IS PRESUMED TO BE RIGHT- 
 ly, regularly and validly done: Omnia 
 pr(esumuntur rite, etc. ; Clem (2c) ; 
 Crepp (113) ; Hannah (128). 
 Execution and delivery of commercial pa- 
 per presumed. C. v. Kane (183). 
 Presumptions of regularity will not supply 
 jurisdictional facts. An authority must 
 be pleaded and established. See Author- 
 ity ; Jurisdiction; Cruikshank (232): 
 cases ; Hannah (128) ; C. v. Kane (183). 
 EVERY MAN IS PRESUMED INNOCENT 
 until he is alleged and proven guilty : 
 Bonnell (185): cases. See Actore ; 
 Semper Malum ; Nemo Praesumitur. 
 Coffin v. U. S. 
 Morality is a ground and rudiment of 
 law. See Morality. 
 EVERY MAN IS PRESUMED TO INTEND 
 the natural, direct and probable conse- 
 quences of his own voluntary act. See 
 Armory; Squib Case (417); Stetson. 
 EVERY MAN IS PRESUMED TO KNOW 
 the law. R. v. Esop ; Hunt (417). 
 Ignorantia legis neminem excusat is a 
 ground and rudiment of law. It is of 
 universal application. 
 One must plead for himself and at his 
 own peril. Gibler (96) ; Kraner (299). 
 See Culpa ; Volenti. 
 Litigants must make and secure sufficient 
 
230 
 
 DATUM POSTS. 
 
 juridical matter; Windsor (1); Clem 
 (2c) ; Davenport (2f). See Actore. 
 EVERY MAN'S HOUSE IS HIS CASTLE: 
 See Domus Sua, etc. Semayne's lease. 
 EVERY ONE IS PRESUMED TO INTEND 
 the natural, direct and probable conse- 
 quences of his act: Squib Case (417) ; 
 Swift (417) ; Young (417) ; Hadley 
 (417) ; C. v. Rogers (199) ; C. v. York 
 (197); Polhill (411) ; Sturdivant (410), 
 et seq. ; Thomas (417) ; Langridge (417). 
 
 Negligent execution of contract ; conse- 
 quences. Williams (417) ; Swift (417). 
 See Bona Fide Purchases. 
 
 This rule rests on reason, convenience 
 and necessity, which are grounds and 
 rudiments of law. 
 EVERY : Presumption is against a judgment 
 and its foundation record offered to 
 prove an estoppel or title to property, 
 real or personal. Clem (2c) ; Windsor 
 (1) ; Pennoyer (58). See Authority; 
 Jurisdiction. Hannah (128). 
 
 What was not juridically presented cannot 
 be judicially considered. Clem ; Dov- 
 aston; Gibler (96). 
 
 Appellant must affirmatively show error. 
 
 Gibler (96). See Actore. 
 
 EVERY : Presumption is against a pleader : 
 
 Verba fortius, etc. Dovaston (217) ; 
 
 Crulkshank (232) ; Moore (21) ; Harris. 
 
 This rule is applied in construing a judg- 
 ment and its record above mentioned. 
 It is most important and is most com- 
 pletely resumed under citations to Be 
 non apparentibus, etc., and its cognates. 
 EVERY : Presumption is against a wrong- 
 doer : Omnia prwswnuntur contra spoil- 
 iatorem. Armory (180). 
 EVERY PRESUMPTION IS IN FAVOR OF 
 the credibility of one speaking in ex- 
 tremities : Nemo prcesumitur ludere in 
 extremis. No one is presumed to trifle 
 at the point of death. See Res Gestae. 
 EVERY WORD MUST BE GIVEN EFFECT 
 to if possible in construction : See Ver- 
 ba ; Ut Res Magis Valeat Quam 
 Pereat. 
 EVIDENCE : See Burden of Proof ; Best 
 Evidence ; Variance ; Allegata et 
 Probata; "What Ought to Be of 
 Record" ; Oral Evidence ; Manda- 
 tory Record ; Preface. 
 
 Leading rules. What ought to be of rec- 
 ord, etc. Windsor (1) ; Clem (2c). 
 
 Proof must be certain and affirmatively 
 appear/ Hannah (128) ; Citizens (186) ; 
 Vaiden (155) ; C. v. Kane (183). 
 
 Oral evidence excluded. Iverslie (46) ; 
 Wigglesworth (399-403). See Oral Evi- 
 dence. 
 
 Pleadings are to limit issues. Dickson 
 (34) ; Gay (138). 
 
 Rules of necessity, convenience, public po- 
 licy ; illustrations. C. v. Kane (183). 
 See Necessity ; Convenience ; Salus. 
 
 General proof ; when sufficient. C. v. 
 Kane (183). 
 
 Need not be pleaded. McCaughey (184). 
 Exceptions. Green (90) ; Dinehart. 
 
 Rules from convenience, reason, necessity 
 and the public welfare. C. v. Kane. 
 
 Presumptions, illustrations. Bonnell (185). 
 
 Province of court and jury. Bonnell. 
 
 Reasonable doubt rule. Bonnell (185) ; 
 C. v. McKie (187) ; Billard (189). 
 
 Recent possession of the fruits of crime. 
 R. v. Partridge (190) ; Phelps (191) ; 
 U. S. v. King (192). 
 
 Corpus delicti, how proved. Matthews 
 (193) ; Hickory (194). 
 
 Circumstantial, its weight and effect. Hick- 
 ory (194). 
 
 Presumption of sanity continuity. M'Nagh- 
 ten's (195). 
 
 Insanity, burden of proof. M'Naghten, 
 et seq.; P. v. Rogers (198) ; C. v. Rog- 
 ers (199). 
 
 Every one is presumed to intend the na- 
 tural, direct and probable consequences 
 of his act. C. v. York (197). See 
 Every. 
 
 Right to cross examine is fundamental. 
 Wright (201). 
 
 Agents, admissions of, effect. U. S v 
 Gooding (202). 
 
 Impeachment of witnesses. Allen v. S. 
 
 Handwriting, how proved. Hanly (204). 
 
 Negligence, proving of. King (205). Mc- 
 Cully (206). 
 
 Res ipsa loquitur. Stokes (207) ; Byrne 
 (209) ; Losee (210) ; Kearney (211) ; 
 Dant (212). 
 
 Hearsay. Didsbury (213). 
 
 System is admissible to prove intent. 
 Strong (213a). 
 
 In criminal cases not more strict than 
 civil. Citizens (186) ; Hickory (194). 
 
 Incompetent, vitiates. Shutte (291) ; R. 
 v. Gibson (272). 
 EXAMINED COPIES: C. v. Kane (183). 
 EX ANTECEDENTIBUS ET CONSEQUEN- 
 tibus fit optima interpretatio : A passage 
 will be best interpreted by reference to 
 that which precedes and follows it. 
 
 §§ 108, 255. 
 
 EX CAUSA TURPI NON ORITUR ACTIO: 
 
 From one's own wrong arises no right. 
 
 EXCEPTIO FALSI EST OMMIUM ULTIMA: 
 
 A false plea is the basest of all things. 
 
 See Dickson (34) ; Wonderly (103). 
 
 §103. 
 EXCEPTIONS : Noting of when necessary. 
 Windsor (1) ; Miller (290B), et seq.; 
 Shutte (291), et seq. 
 
 Error appearing from the mandatory 
 record saves itself. Windsor (1) ; 
 Campbell (2) : cases, et seq. 
 
 Depend upon assignment of error and an- 
 tecedent matter. Windsor (1) ; Camp- 
 bell (2), et seq. See New Trial. 
 
 Must be specific and made certain and 
 clear. Gibler (96). See Assignment 
 of Errors. Harvey (123). 
 
 Must be prompt. Hickory (194) ; Harvey. 
 
 When necessary ; outline citations ; illus- 
 trations ; L. C. (290-299). See Appel- 
 late Procedure ; Exceptions ; Waiver ; 
 Consensus. 
 EX DOLO MALO NON ORITUR ACTIO* : 
 
 The prescriptive constitution protects 
 against, gee Prescriptive C. §§ 22c, 
 51, 91, 102, 168, 185, 261, 262, 264, 
 267, 268, 269, 270, 301, 312, 362, 368, 
 370 394 395 
 EXECUTIO JURIS NON HABET INJUR- 
 
 iam* : p. 4, §§ 168, 169. 
 EXECUTIONS : Requirements of. Savacool. 
 EXECUTION SALES : Depend on the validity 
 
 of the record. Clem (2c). 
 EX FACTO JUS ORITUR* : See Dictum. 
 
 §268. 
 EX NUDO PACTO NON ORITUR ACTIO* : 
 L. C. 301-333. Pp. 2, 3, 6, 10 ; §§ 302, 
 311, 312, 321, 325, 332, 333, 334. 
 EX POST FACTO* : L. C. 237-240 ; Calder 
 .(237-237a) ; Bronson (238) ; Von Hoff- 
 man (239) ; Terry (240) ; p. 2. 
 EXPRESSIO EORUM QVJE TACITjE IN- 
 sunt nihil operatur** : P. 6; §§ 2c, 42, 
 74, 147, 216, 218, 222, 225, 225a, 229, 
 239, 249, 273, 320, 321, 346, 355, 357, 
 377. 
 EXPRESSIO UNIUS EST EXCLUSIO AL- 
 terius** : Pp. 3, 6, 7 ; §§ 1, 2, 15, 29, 42, 
 46, 50, 52, 63, 91, 108, 115, 116, 118, 
 121, 122, 130, 135, 142, 144, 151, 156, 
 
INDEX. 
 
 231 
 
 163, 174, 183, 194, 217a, 231, 232, 250, 
 279, 290a, 291, 299, 305, 308, 320, 322, 
 324a, 329, 334a, 335, 357, 410. 
 EX TURPI CAUSA NON ORITUR ACTIO: 
 No cause of action arises from illegality. 
 P. 2. 
 EX TURPI CONTRACTU NON ORITUR Ac- 
 tio : No action arises on an immoral 
 contract. See Illegality. 
 EX UNO DISCES OMNES* : §§ 211, 2136. 
 FABULA NON JUDICIUM : Jurisdiction de- 
 pends on real facts. See Sham Plead- 
 ings. Wonderly (102) ; Graver (103). 
 §§ 24, 26, 46, 82, 87, 91, 93, 98, 102, 
 103, 110, 118, 142, 159, 219a, 263, 
 267, 268, 268a, 270, 281, 299, 308, 317, 
 348. 
 FACTA SUNT POTENTIORA VERBIS : Facts 
 are more powerful than words. Welt- 
 mer (268a). See Praesentiae Cor- 
 poris. 
 FACTS : Facts, not conclusions, must be 
 pleaded. See Conclusions or Law. 
 Hanford (86) ; J'Anson (91) ; Crepps. 
 How pleaded. Green (90). 
 General allegations sometimes permissible. 
 J'Anson; Rosen (92). See Prolixity. 
 FACTUM A JUDICE QUOD AD EJUS OFFI- 
 cium nou spectat, non ratum est : An 
 act of a judge which does not pertain 
 to bis office is of no force. § 159. 
 FALSA DEMONSTRATIO NON NOCET** : 
 §§ 255, 266. See Praesentiae Cor- 
 poris. 
 FALSE IMPRISONMENT. See Arrest. 
 FALSE PLEADINGS: Wonderly (102). 
 FALSE PRETENSES: R. v. Wheatley (19). 
 
 See Deceit. 
 FALSUS IN UNO FALSUS IN OMNIBUS** : 
 
 §5188, 203, 213g. 
 FARNAM (9T) : Aider by proof; limita- 
 tions. 
 FAVORABILIORES REI POTIUS QUAM 
 actores habentur* : See Every. Gibler 
 (96) ; Kraner (299). 
 Defendants are favored. See Actore ; 
 Verba Fortius. § 99. 
 FEDERAL GOVERNMENT : Polity of Cruik- 
 shank (232) ; James (233) ; Barron 
 (241); Cohens (244); Martin (246); 
 Tarble's (247) ; Neagle's (248) ; Logan. 
 Protects individual rights. Marbury (142). 
 FEDERAL PROCEDURE : See Removal of 
 Causes. 
 Requires the mandatory record. Furman. 
 Observations. Windsor (1) ; Lange (159) ; 
 
 Wood (300). See Preface. 
 Follows state practice in law cases. In- 
 dianapolis (223). 
 States cannot detract from. Neagle (248) ; 
 Logan (249). 
 Appellate jurisdiction of federal supreme 
 
 court. Logan (249). 
 
 Citation of important cases. Logan (249). 
 
 Great cases cited. Barron (241). 
 
 FEDERAL QUESTIONS : Must be presented 
 
 from the mandatory record. Furman. 
 
 FELTHOUSE (325) : Contract ; acceptance 
 
 must be of the offer made. 
 FERGUSON (264) : Setting aside judgments 
 
 for fraud. 
 FIELD v. HOLLAND (387) : Application of 
 
 payments. 
 FIELD v. MAYOR (84) : Defences not plead- 
 ed are waived. 
 FISH (12c) : Probata will not supply alle- 
 gata. 
 FITZSIMMONS (384) : Agency ; fraud of 
 the agent is the fraud of the principal. 
 FIUNT ENIM DE HIS (CONTRACTIBUS) 
 scripturae, ut, quod actum est, pereas 
 facilius probari poterit : The ease, fa- 
 cility and certainty that one stipulates 
 
 for in writing, should stand as proof. 
 Pym (52). See Convenience. 
 FIXTURES: Elwes (417). 
 FLETCHER (18) : An assessor may take 
 
 advantage of his own assessment. 
 FLOURNOY (146) : Division of State Power. 
 FOREIGN LAW : How proved. See C v. 
 
 Kane (183). 
 FORFEITURES : Are odious and disfavored. 
 
 Sloman (393). 
 FORGERY: See Signature. Brown (346). 
 FORMER JEOPARDY : See Res Adjudicata. 
 L. C 25-30 ; 69-74a. 
 When it attaches. U. S. v. Perez (69) ; 
 
 S. v. Croteau (271). 
 Indictment must be certain. R. v. Wheat- 
 ley (19) ; Moore v. C. (21), et seq. 
 Must be pleaded like other Res Adjudicata 
 defenses. U. S. v. Perez (69), et seg. 
 FORMS OF THE LAW: Windsor (1) ; Gal- 
 pin (63). See Technicalities. 
 FOUR IDENTITIES : See Res Adjudicata. 
 FRAUD : Records may be set aside for. 
 Hauswirth (51) ; Needham (261) ; L. 
 C. (261-270). 
 How pleaded. J'Anson (91) ; Farnam. 
 Probata will aid allegata when. Farnam. 
 
 See Mandatory Record. 
 Judgments on false and sham pleadings 
 invalid. Wonderly (102) ; Graver 
 (103), et seg.; Nihil Possumus. 
 Jurisdiction acquired by insufficient. Dun- 
 lap (162) ; Harkness (152). 
 Process served by insufficient. Dunlap. 
 Auction sales. Puffing bids void. Payne. 
 Of shipper in order to get lower rates. 
 
 Coggs (350). 
 Illegality of contract. See In Pari. Hol- 
 
 man (363) ; Undue Influence. 
 Fraudulent acquisitions ; gainer liable for. 
 
 Angle (417). 
 Concealment of facts ; marriage contract ; 
 
 effect. Van Houten (417). 
 On insurance. Carter (417) ; Farnam. 
 FRAUD AND PERJURIES STATUTE OF: 
 L. C. (332-341). 
 Writing required by must be perfect and 
 
 complete. Goss (55) ; Wain (335). 
 How pleaded. Jordan (228). 
 A contract may appear from several docu- 
 ments. Boydell (417). 
 "Act and operation of law" ; meaning of. 
 Lyon (417). 
 FRAUDULENT CONVEYANCE : Twyne's. 
 FREEMAN (287) : Comity; of courts; goods 
 
 custodia legis. 
 FROST (308a) : Renunciation of contract 
 
 gives immediate right to sue. 
 FRUSTRA LEGIS AUXILIUM QU^BRIT QUI 
 in legem committit : Vainly does he who 
 offends against the 'law seek the help 
 of the law. §§ 180, 268a, 308. 
 FRUSTRA PROBATUR QUOD PROBATUM 
 non relevat* : A fundamental rule of 
 protection, p. 11. Bristow (135). See 
 Allegata et Probata. P. 2 ; §§ 1, 2c, 5, 
 10a, 12a, 12c, 60, 70, 71, 73, 74a, 81, 
 91, 97, 135, 136, 136a, 217, 219, 231, 
 232, 233, 2906, 291, 308. 
 FUNDAMENTALS : See Due Process of 
 Law ; Prescriptive Constitution. 
 Principles annexed by implication ; Wind- 
 sor (1) ; Oakley (66, 222) ; Weaver. 
 FURMAN v. FURMAN (262) : Relief from 
 
 judgments. 
 FURMAN v. NICHOLS (147a) : Mandatory 
 record indispensable under supreme law 
 of the land. 
 GALPIN, 3 Saw (63) : Service by publica- 
 tion. 
 GALPIN, 18 Wall. (64) : Inferior and super- 
 ior tribunals. 
 GAMING: See Wagers. L. C. 358-362. 
 
232 
 
 DATUM POSTS. 
 
 GARLAND v. DAVIS (60) : A court is bound 
 by its record and sua sponte looks 
 after and follows and obeys it, without 
 regard to the conduct or contract of 
 parties named thereon. Campbell (2). 
 GARLAND v. GAINES (40) : Denials must 
 
 be certain. 
 GARLAND v. WHOLEBAU (297) : One can 
 not change his position on appeal. See 
 Allegans. 
 GAY (138) : Duty of courts to define issues. 
 GENERALIA SPECIALIBUS NON DERO- 
 gant : Things general do not derogate 
 from things special. 
 GENERAL PROOF: When sufficient. C. v. 
 
 Kane (183). 
 GENERAL REPUTATION: Effect of as 
 
 proof. C. v. Kane (183). 
 GENESSEE CHIEF: Admiralty jurisdiction 
 
 over inland' waters. 
 GENTRY (88) : There must be allegata to 
 
 confer jurisdiction. 
 GIBBONS v. OGDEN: See Logan (249). 
 GIBBS (405) : Title when it passes. 
 GIBLER (96) : Appellant must assign error 
 and plead for himself, present a suffi- 
 cient abstract that affirmatively shows 
 error. Kraner (299). 
 GOOD (358) : Wager contracts. 
 GOOD FAITH : Offer to contract must be. 
 Payne (307). See Bona Fide; Mo- 
 hality. 
 GOOD WILL: Sale of. See Restraint of 
 
 Trade. 
 GORE v. GIBSON (416) : Contracts of 
 
 drunkards. 
 GOSS (55): Statute of frauds; contract 
 
 must be perfect and sufficient. 
 GOVERNMENT : See Constitutional Law. 
 Mandatory requirements of. Windsor (1). 
 The study of procedure is a study of. 
 U. S. v. Cruikshank . (232) ; See Pref- 
 ace (Datum Posts). 
 Protection of the individual is. Marbury. 
 Depends upon the judiciary. Lange (159). 
 As a party to suits and contracts. Hun- 
 saker (259); Belknap (260). 
 GRAND TRUNK (290c) : General objections 
 
 and exceptions insufficient. 
 GRATUITIES and voluntary services are 
 never a consideration. Lampleigh (301) ; 
 Bartholomew (302), et seg. 
 Volunteer paying debt of another is not 
 subrogated. Boston (320). See As- 
 signment. 
 GRAVER (103) : False denials will avoid a 
 
 judgment secured thereby. 
 GREEN (90) : Code requirements. Conclu- 
 sions of law insufficient. 
 GROUNDS AND RUDIMENTS OF LAW : See 
 Construction ; Public Policy ; Neces- 
 sity ; Morality ; Convenience ; Reason ; 
 Mandatory Requirements of a Con- 
 stitutionalism ; Conserving Prin- 
 ciples of Procedure ; Prescriptive 
 Constitution ; Preface ( Datum Posts ) . 
 GUARANTY: Under statute of frauds. Birk- 
 
 myr (339). 
 GUEDELL (74a) : Allegata et probata must 
 
 correspond. 
 
 GULICK (364) : Puffing bids are invalid. 
 
 HABEAS CORPUS: From federal to state 
 
 courts. Tarble's (247) ; Neagle's (248). 
 
 Unconstitutional imprisonment by state 
 
 power ; Federal court to release. Royall. 
 
 HALL (369) : Illegality too remote for a 
 
 dG fBIlSC 
 
 HALLETT (308<Z) : Destruction of leased 
 premises ; when tenant must rebuild. 
 
 HAMILTON (280) : Injunction to restrain 
 crime. 
 
 HAMMACK (208) : Prima facie evidence of 
 negligence. 
 
 HAND (295): Statutory record; abstract. 
 
 HANDWRITING: How prove; rules. C. v. 
 
 Kane (183). 
 HANFORD (86) : Conclusions of law insuf- 
 ficient. 
 HANLY (204) : Handwriting; how proved. 
 
 C. v. Kane (183). 
 HANNAH (128) : Presumption of regularity; 
 
 limitations. 
 HARKNESS (152) : Service of process in 
 
 wrong territory material error. 
 HARPER (218) : Intention controls con-. 
 
 struction. 
 HARRIS v. BROOKS (386) : Deception of 
 
 surety releases him. 
 HARRIS v. MUSKINGUM MANUFACTUR- 
 ing Co. (229) : Corporate existence; al- 
 legation of. 
 HARRIS v. S. (158) : Motion in arrest must 
 
 appear in the mandatory record. 
 HARRIS v. TYSON (380) : Caveat emptor 
 
 applies to sales of real estate. 
 HARVEY v. RICHARDS (32) : Courts are 
 
 bound by their records. 
 HARVEY v. TYLER (123) : Inferior tri- 
 bunals ; important rules of appellate 
 procedure. 
 HASKEL (101) : Each count must be perfect 
 
 in itself. 
 HASTINGS (160) : Privilege of counsel; de- 
 famation by. 
 HAUSWIRTH (51) : Service of process on 
 
 Sunday ; when void. 
 HEARSAY : When admissible as evidence. 
 C. v. Kane (183). 
 Exceptions to rule. Strong v. S. (213a), 
 et seg. : cases. 
 HENDRICK (319) : Contract by one for an- 
 other. See Privity. 
 HE WHO SEEKS EQUITY MUST DO 
 equity: S. P. Seabury (281). See 
 Morality. 
 HE WHO WILL HAVE EQUITY DONE TO 
 him must do equity to the same person : 
 Weltmer (268a). See Morality. 
 HICKORY (184) : Civil and criminal plead- 
 ings equally strict ; circumstantial evi- 
 dence is most worthy. 
 HIGHAM (213c) : Declarations of third per- 
 sons against interest. 
 HITCHCOCK (12) : Motions in arrest; aider 
 of pleadings. Verdict will not supply 
 omitted allegation. 
 HOCHSTER (3086) : Breach of contract. 
 HOGINS (379): Warranty; oral evidence. 
 HOLLISTER (354) : Passengers not pre- 
 sumed to assent to carrier's notice. 
 HOLMAN (363) : Illegal contracts. 
 HOOD (141) : Prayer, when sufficient 
 HOPKINS (378) : See Hogins. 
 HOPPER (4) : An authority must be pleaded 
 
 by alleging the facts. 
 HORAN (85) : Coram non judice proceeding. 
 HOSKINS (80) : Plea of not guilty must ap- 
 pear from the right record. 
 HOUSEHOLD FIRE INS. CO. (328) : Let- 
 ters ; contract by. 
 HOUSTON (245) : Courts are bound by their 
 
 record. 
 HOWARD (166) : Process must be sufficient 
 
 for a justification defence. 
 HUMPHREYS (38) : Denials on information 
 
 and belief ; when sufficient. 
 HUNSAKER (259) : Government as a party 
 
 to suits. 
 HUNTSMAN (231) : Limitations of legisla- 
 tive power to interfere with procedure. 
 Indianapolis (223). 
 HURT ADO (220) : Elements of due process 
 of law may be gathered from the sub- 
 stance. See Praesentia Corporis. In- 
 dianapolis (223). 
 HUSBAND AND WIFE: Contracts of wife. 
 
 Manby (417). 
 IDEM SONANS: Wiebold (98); §§98, 346. 
 
INDEX. 
 
 233 
 
 ID TANTUM POSSUMUS QUOD DB JURE 
 possemus : We can do that only which 
 we can lawfully do. § 169. 
 
 IGNORANCE : When a defence. See Igno- 
 hantia. R. v. Esop (417). 
 
 IGNORANTIA FACTI EXCUSAT.IGNORAN- 
 tia juris non excusat : Ignorance of fact 
 excuses, ignorance of law does not ex- 
 cuse. Hunt (417). §§114, 320, 348, 
 349. 
 
 IGNORANTIA JURIS NON EXCUSAT: Ig- 
 norance of the law is no excuse. § 320. 
 
 IGNORANTIA LEGIS NEMINEM EXCU- 
 sat* : See Mistake. R. v. Esop (417) ; 
 Hunt (417). §§ 107, 122, 156, 217, 273, 
 285a, 299, 375, 417. 
 
 IGNORATIS TERMINIS, IGNORATUR ET 
 ars : Terms being unknown, the art also 
 is unknown. 
 
 ILLEGALITY : See Public Policy ; IN Pahi ; 
 Morality. Holman (363), et seg. 
 Illegality of contract is a changeable ele- 
 ment. Note Jordan (324) ; N. Y. R. R. 
 (352). 
 Wager contracts. Good (258), et seq. 
 When a defence. Holman (363-373). 
 Right to retire from illegal contract. 
 
 See Locus Penitentiae. 
 As a defense to contract when too remote. 
 
 Brooks (370) ; Hall (369). 
 Statutes may declare that contracts are 
 
 void-. Lickbarrow (394) ; Holman. 
 As a defence need not be pleaded. Holman 
 
 (373). See Salus. 
 Restraint of trade. Mitchel (372). 
 
 ILLSLEY (169) : What can not be done 
 directly can not be done indirectly. 
 
 IMMUTABLE CONSTITUTION : See Pre- 
 scriptive. 
 
 IMPAIRING THE OBLIGATION OP CON- 
 tracts; Hanford (86); Bronson (238); 
 Virginia (285a) ; Edwards (286) ; Dash 
 (237a). See Prescriptive Constitu- 
 tion. 
 
 IMPEACHMENT OF WITNESSES : Allen v. 
 S. (203). See Falsus. 
 One can not impeach his own witness. 
 Hickory (194). See Allegans ; Incon- 
 sistency. 
 "IMPLICATIONS : See Expressio Eorum. 
 M'Culloch (147) ; Indianapolis (223) ; 
 O'Connell (224) ; Bates (225), et seq.; 
 S. v. Townley (225a). 
 From authority to agents. U. S. v. Good- 
 ing (202). 
 Contracts incorporate existing laws. Von 
 Hoffman (239). 
 
 IMPLIED CONTRACTS: Cutter (308) ; Bos- 
 ton (320). 
 
 IMPOSSIBILITY: See Lex Non Cogit Ad 
 Impossibilia. De Crespigny (417) ; 
 Actus Dei; Taylor (310). 
 Sales ; there must be in existence the sub- 
 ject of the conveyance, or sale or con- 
 tract. See Mistake. 
 
 IN ^QUALI JURE MELIOR EST CONDI- 
 tio possidentis**: See IN Pari. §§41, 
 395 396. 
 
 INCIDENTS : See Expressio Eortjm ; M'Cul- 
 loch (147). See Neagle's (148) ; Lo- 
 gan (149); S. v. Bolden (216). 
 A principal thing carries its incidents. 
 Neagle's ; Logan ; M'Culloch. 
 
 IN CONJUNCTIVA OPORTET UTRAMQUE 
 partem esse veram : In conjunctives each 
 part must be true. § 299. 
 
 INCONSISTENCY : See Repugnant ; Alle- 
 gans ; Impeachment. 
 
 INCONSISTENT : Defenses permissible ; lim- 
 itation. Dickson (34) ; Seattle (36). 
 Duplicity forbidden. Bowlus (100) ; Pain 
 (107). See Allegans. 
 
 INDEMNITY: Contracts effect. Lovejoy. 
 
 INDIANAPOLIS (223) : Limitations of leg- 
 
 islative power to interfere with pro- 
 cedure. Hurtado (220) ; Huntsman 
 (231). See Due Process of Law. 
 INDICTMENT : See Allegations ; Cause 
 of Action ; Certainty. 
 
 Important rules of construction. Hunts- 
 man (231). 
 
 Reflect the law from which they are 
 drawn with certainty. Cruikshank 
 
 (232) ; James (233). 
 
 Must be certain. R. v. Wheatley (19), 
 et seq.; Moore v. C. (21) ; Huntsman 
 (231) ; Cruikshank (232) ; James 
 
 (233) ; U. S. v. Perez (69) ; R. v. 
 Waverton (70) ; R. v. Waters (71) ; 
 R. v. Vaux (72) ; R. v. Vandercomb 
 (73) ; C. v. Roby (74) ; Guedell (74a) ; 
 R. v. O'Brien (75). 
 
 Aider by waiver limitations. R. v. Gold- 
 smith (20); R. v. Waverton; R. v. 
 Waters, et seq.; Huntsman (231), et 
 seq.; Dobson (232a). 
 
 Like all pleadings must be certain. Camp- 
 bell (2) ; R. v. Wheatley (19), et seq.; 
 U. S. v. Perez (69), et seq.; Huntsman 
 (231). See Conserving Principles. 
 
 Certainty essential. Huntsman (231) ; 
 C v. Roby (74), et seq. See Res Ad- 
 judicata. 
 
 Liberal construction limits. R. v. Wa- 
 ters (71) ; Dobson (232a) ; R. v. 
 Goldsmith (20) ; Rushton (5). 
 
 Limitations of legislative power to inter- 
 fere with. Huntsman (231) ; Hurtado 
 (220) ; Indianapolis (223). See Res 
 Adjudicata ; Former Jeopardy. 
 INFANCY : See Infants. 
 INFANTS : Service of process on manda- 
 tory. Windsor (1) ; Galpin (63). 
 
 Equitable jurisdiction over. Williamson. 
 
 Contracts of. Craig (417) ; Peters (417) ; 
 Ryder (417) ; Tucker (417). 
 
 Necessities, may contract for. Peters. 
 
 Deeds of, void. Trueblood (417). See 
 Zouch (417). 
 
 Liable for torts. Hall (369). 
 INFERIOR TRIBUNALS : Jurisdiction of, 
 how averred. Sturges (111). 
 
 General observations on. Crepps (113- 
 134) : cases. 
 INGALLS (353) : Carriers warrant safe ap- 
 pliances. 
 IN GENERALIBUS VERSATUR ERROR: 
 Error dwells in general expressions. 
 Hanford (86). 
 INJUNCTIONS : General rules, observa- 
 tions. L. C. 278-283. 
 
 To restrain trespass. Bonaparte (278). 
 
 Procedure. Dinehart (279). 
 
 To restrain crime. Hamilton (280). 
 
 Party asking for must stand fair. Sea- 
 bury (281). 
 
 Speculators are denied relief. Edwards. 
 
 Quia timet relief rules. R. R. v. Greer. 
 IN JURE NON REMOTA CAUSA, SED 
 
 proxima, spectatur**: §§363, 370. 
 IN LIMINE BREACH : Of contract gives 
 immediate right to sue. Frost (308a) ; 
 Hochster (3086) ; Dame 308c) ; Hal- 
 lett (308<Z). 
 INNKEEPER: Calye's Case (356). 
 INNOCENCE : Presumed. See Every ; Bon- 
 
 nell (185) ; Coffin v. U. S. 
 IN PARI DELICTO POTIOR EST CONDI- 
 tio defendentis** : Defences iieed not be 
 pleaded. Field (84) ; Holman (363) ; 
 Seabury (281) ; Edwards (282) ; Welt- 
 mer (268a). See Illegality. Pp. 4, 5; 
 §§41, 84, 268a, 281, 308, 311, 317, 320, 
 363, 364, 365, 366, 367, 368, 370. 
 IN PARI MATERIA : All provisions and 
 enactments must be construed together. 
 Barnard (108). §216. 
 IN PR^ESENTIA MAJORIS CESSAT PO- 
 
234 
 
 DATUM POSTS. 
 
 tentia minoris** : Fundamental law an- 
 nexed by implication. Trist (214), et 
 seq. §§ 35, 74a, 92, 142, 159, 214, 219a, 
 249, 285a, 308, See Prescriptive. 
 INSANE : Non compos mentis persons. Mol- 
 ton (413). 
 May commit tort. Beverly (416). 
 INSANITY: See Actus Non Facit. 
 
 Act and intent constitute crime. M Nagh- 
 
 ten (95) ; C. v. York (197) ; R. v. 
 
 Oxford (200). 
 
 Drunkenness when a defense to crime, V. 
 
 v. Rogers (198) ; C. v. Rogers (199). 
 
 INSPECTION OF DOCUMENTS: Rules for. 
 
 C. v. Kane (183). 
 INSTALMENT CONTRACTS: See Entire 
 Contracts. 
 Illustrations. Cutter (308). 
 INSTRUCTIONS : Province of court ana 
 
 jury. S. v. Croteau (271) ; Hickory 
 INSURANCE : Oral contract for, valid. 
 White (303). . 
 
 Insurable interest; what is. Godsall. 
 Concealment of facts ; effect on policy. 
 Carter (417) 
 INSURANCE CO. v. FOLSOM (157) : Statu- 
 tory record indispensable to present 
 waivable error. 
 INTELLIGENCE : See Ignorantia. 
 INTENT : Act and intent essential to com- 
 mit crime. M'Naghten (195), et seq. 
 Is inferred from act. C. v. York (197). 
 Governs in construction. Harper (218) ; 
 
 Sloman (393) ; Blackett (400). 
 Intention overrides the letter. Maher 
 
 (255). See Verba Intentione. 
 Practical construction may indicate. Ma- 
 her. See Phaesentia Corporis. 
 Contract; the intention. See Assent; 
 
 Request. Lampleigh (301), et seq. 
 Is a fundamental requirement in crime. 
 S. v. Bolden (216). 
 INTEREST REIPUBLIOffi: UT SIT FINIS 
 litium'*: See Marriot (417); Res 
 Adjudicata. §§ 2e, 76, 156, 232a, 417. 
 INTERPRETATION: See Construction. 
 IRREPARABLE INJURY: See Injunction. 
 ISRAEL (83) : Issues must appear from 
 
 the right record. See Issues. 
 ISSUES : See Allegation ; Admission ; De- 
 nial. , 
 Courts sua sponte take notice of. Garland 
 (60) ; Munday (79) ; Crane v. V. S. ; 
 Dickson (34), et seq. 
 Must appear in mandatory record ; it is 
 irrefragable. Mondel (77) ; Munday 
 (79) ; L. C. 77-85. 
 Cannot be waived. Munday (79) : cases. 
 Plea of not guilty mandatory and must 
 appear in the right record. Crain v. 
 U. S. ; Hoskins (82). 
 Judgment beyond the issue void. Rey- 
 nolds (79a). 
 Duty of courts to declare and define. Gay 
 
 (138) ; Garland (60). 
 Province of court and jury. See Ad 
 Quaestionem. Bonnell (185) ; S. v. 
 Croteau (271) ; Hickory (194). 
 ITA LEX SCRTPTA EST : The law is so 
 
 written. §§ 216, 219a, 225, 255, 264. 
 IVERSLIE (46) : Best evidence required. 
 
 See Oral Evidence. 
 JAMES (233) : Indictments must be cer- 
 tain. * 
 J'ANSON (91) : Pleas, answers and replica- 
 tions must be certain. (Instructive 
 case.) 
 JOINDER OF CAUSES: Brugger (162). 
 
 Of criminal charges. S. v. Croteau (271). 
 JOINDER OF COUNTS: Brugger (162). 
 JOINT CONTRACTS: If alleged to be such 
 must be proved. Bristow (135). 
 
 JOINT TRESPASSERS : Stetson (163) ; 
 Lovejoy (289) ; Cornfoot (385). 
 Release of one is release of all. Ellis. 
 JONES (376) : Caveat emptor — Warranty. 
 JORDAN v. GREENBORO FURNACE CO. 
 (228) : Statute of frauds; pleading of. 
 JORDAN v. NORTON (324) : Proposer may 
 prescribe time, place and terms of con- 
 tract. See Non Haec. 
 JUDGE: Immunity of. Lange (159); 
 Crepps (113), et seq.; Piper (114), et 
 seq. 
 Cannot sit in his own cause. Dimes 
 (176). See Nemo Debit Esse Judex. 
 Cannot delegate his authority. Van Slyke. 
 JUDGMENTS : See Jurisdiction. Windsor 
 (1), et seq. 
 How proved to support title or estoppel 
 of record. Clem (2c). See Verba For- 
 tius. 
 Depends upon mandatory record. Clem 
 
 (2c). See Debile. 
 Jurisdictional facts not presumed to sup- 
 port. Clem (2c). 
 Essential record matter if lost must be 
 
 restored. Campbell (2a). 
 Validity of depends upon jurisdiction. 
 Windsor (1) ; Pennoyer (58) ; Rlcket- 
 son (59) ; Williamson (65) ; L. C. 
 113-134; L. C. 261-270. 
 Of subject matter. Campbell (2). 
 Description of particular matter. Wind- 
 sor ; Campbell; C. v. Roby (74) ; Law- 
 rence (134). 
 Of the person. Pennoyer (58). 
 An opportunity to be heard. Windsor. 
 See Audi ; De Non Apparentibus ; 
 Frustra Probatub. Oakley (66) ; 
 Williamson (65). 
 A disinterested judge. Dimes (176). See 
 
 Nemo Debet Esse Judex. 
 Territorial jurisdiction. Mostyn (274). 
 The mandatory record. Clem (2c) ; Boyd 
 (63), et seq.; Williamson (65), et seq. 
 The record must show the authority to 
 enter the judgment. Windsor ; L. C. 
 1-100; L. C. 261-270. 
 Fraud and arbitrariness will vitiate. 
 Windsor (1); Needham (261): cases ^ 
 Oakley (66) ; Ferguson (264) ; Barr 
 (265) ; Bloom (266) ; Borden (267) ; 
 S. v. Baughman (268) ; Weltmer 
 (268a) ; Watkins (279) ; California. 
 Presumptions in favor of limitations. 
 Boyd (62) ; Galpin (63), et seq.; Will- 
 iamson (65), et seq.; C. v. Roby (74), 
 et seq.; Munday v. Vail (79), et seq. 
 Must be certain. Lawrence (134). 
 Is an entirety. Needham (261). 
 May bind parties not named in the rec- 
 ord. Bauerman (48). 
 Parties refusing to defend when they 
 should upon notice are bound by. Love- 
 joy (289). 
 As evidence to prove title or an estoppel. 
 Clem (2c). See Res Adjudicata; 
 Prescriptive Constitution ; Interest 
 Reipublicae. 
 JUDICE JUDEX DELEGATUS, etc. See 
 
 Delegatus, etc. ; Van Slyke (177). 
 JUDICIAL FUNCTIONS: Cannot be dele- 
 gated. Van Slyke (177). See Dele- 
 gatus ; Division of State Power. 
 Province of court and jury. S. v. Croteau 
 (271) ; Hickory (194). See Issues. 
 JUDICIAL NOTICE: Lanfear (181) ; Olive 
 
 (182) ; C. v. Kane (183). 
 JUDICIAL SALES: Observations of. Will- 
 iamson (65). 
 Confirmation of. Clark (26) ; William- 
 son (65). 
 JUDICIARY : See Division op State Power. 
 JURARE EST DEUM IN TESTUM VOCARE, 
 
INDEX. 
 
 235 
 
 et est actus divini cultus : To swear is 
 to call God to witness, and is an act 
 of religion. See Mokality. 
 JURISDICTIO EST POTESTAS DB PUBLI- 
 CO introducta, cum necessitate juris di- 
 cendi : Jurisdiction is a power intro- 
 duced for the public good, on account 
 of the necessity of dispensing justice. 
 JURISDICTION: See L. C. 1-100. Wind- 
 sor (1) ; Pennoyer (58). 
 
 Elements. Windsor (1) ; L. C. 261-270. 
 See Judgments ; Authority. 
 
 Depends on record authority. Windsor 
 (1), et seq.; R. v. Wheatley (19) ; 
 Dickson (34) ; Garland (60) ; Munday 
 (79); Weaver (67); Eddy (136); 
 Huntsman (231) ; Cohens (244) ; Star- 
 buck (263). 
 
 Is conferred by proper pleading. San- 
 born (61) ; Eddy. 
 
 Manner of acquiring mandatory. Sanborn 
 (61) ; Campbell (2), et seq.; Eddy. 
 
 Presumptions in favor of ; limitations. 
 Boyd (62), et seq.; Eddy. 
 
 Usurpation vitiates. Windsor (1) ; Will- 
 iamson (65) ; Weaver (67) ; Piper 
 (114) ; Eddy. 
 
 Denned. Munday (79) ; Eddy. 
 
 Depends on real Bona fide facts. See 
 Fabula. Wonderly (102), et seq.; S. 
 v. Baughman (268); Eddy; Weltmer 
 (261a). See Nihil Possumus. 
 
 Dead issues will not attract. S. v. Conk- 
 lin (109) ; Eddy. 
 
 Of inferior courts, how averred. Sturges 
 (111) ; Eddy. 
 
 Of inferior tribunals ; general discussion. 
 Crepps (113-114) : cases ; Eddy. 
 
 Must affirmatively appear. Crepps (113) ; 
 Eddy (136). See De Non. 
 
 To divest property depends upon affirma- 
 tive facts shown from the right record. 
 Clem (2c) ; Williamson (65) ; Crepps 
 (113), et seq.; L. C. 114-134; Eddy. 
 
 Vested by a constitution cannot be di- 
 vested by statute. Marbury (142) ; 
 Eddy. 
 
 Of crime. R. v. Keyn (171) ; C. v. Mac- 
 Cloon (172) ; R. v. Lewis (173) ; Mos- 
 tyn (274). 
 
 Of local and transitory actions. Mostyn. 
 
 Acquired by fraud invalid. Allen (167) ; 
 Dunlap (168) ; Ilsley (169) ; Haus- 
 wirth (51). 
 
 Sunday courts cannot sit or act on. See 
 Dies Non. S. v. Conwell (174). 
 
 Necessity will excuse the exercise of au- 
 thority on Sunday. Langabier (174a). 
 
 Judge cannot sit in his own cause. Dimes. 
 
 Cannot delegate judicial authority. Van 
 Slyke (177). 
 
 Territorial. Mostyn (274). 
 
 Equity over non-resident. Mostyn ; 
 Penn (275). 
 
 Equity, to set aside judgments. Needham 
 (261), et seq. 
 
 Specific performance relating to chattels. 
 Pusey (276). 
 JURIS PR.ECEPTA SUNT B.JEC, HONESTE 
 vivere alterum non laedere, suum cuique 
 tribuere : These are the precepts of the 
 law, to live honorably, to hurt nobody, 
 to render to every one his due. See 
 Maxims ; Morality. 
 JURY : Province of in criminal cases ; the 
 jury must try. S. v. Croteau (271). 
 See Ad Quaestionem Facti. R. v. Gib- 
 son (272). 
 JUS PUBLICUM PRIVATORUM PACTIS 
 mutari non potest: A public right can- 
 not be changed by agreement of private 
 parties. § 363. 
 JUSTICE: See Government. 
 
 Delays of, a denial of. Waco (300). 
 
 JUSTICES OF THE PEACE : Liability of, 
 for exercise of authority. Crepps ; Piper 
 (113-114), et seq. 
 
 JUSTIFICATION: Defenses, how pleaded. 
 J'Anson (91) ; Savacool (164), et seq. 
 Record must be sufficient for, is a con- 
 serving principle. Howard (166). 
 Defenses depend upon a record. Tarble's 
 
 Case (247). 
 Defenses must be pleaded. J'Anson (91) ; 
 Virginia (285a). 
 
 KANSAS CITY R. R. (357) : Common car- 
 rier ; rights ; duties ; contracts of. 
 
 KEARNEY (211) : Res ipsa loquitur. 
 
 KEECH v. SANDFORD (RUMFORD MAR- 
 ket Case) (417) : Trustee cannot deal 
 with trust estate. Boyd (62). 
 
 KELLEY v. HEMMING WAY (304) : Cer- 
 tainty of contract. 
 
 KELLEY v. BEMIS (285) : Unconstitution- 
 al law is no law. 
 
 KEMBLE (391): Liquidated fixed damages - 
 construction ; Verba intentione. 
 
 KEMPE'S LESSEE (115) : Inferior tri- 
 bunals. 
 
 KEWAUNEE COUNTY (29) : Functions of 
 pleadings. 
 They must be certain ; cannot be "flsb, 
 flesh or fowl." Lea (30). 
 
 KINGSTON (76) : Res adjudicata; estoppel 
 of record. 
 
 KING v. BALDWIN (3346): Sureties,- 
 rights, liabilities. 
 
 KING v. OREGON SHORT LINE R. R. 
 (205) : General allegations, when suf- 
 ficient, in negligence. See Farnam. 
 
 KIRKWOOD v. MILLER: Joint trespassers- 
 See Stetson (163). 
 
 KOLLOCK (Wis.) : Construction of codes. 
 Lex non exacte. 
 
 KRANER (299) : Dilatory pleadings strictly 
 construed. See Verba Fortius. 
 
 KROM (N. Y.) : Insane persons liable for 
 torts (416). 
 
 KYLE (348) : Mistake as to subject matter 
 of sale or contract, avoids it. 
 
 LAMPLEIGH (301) : Vitals for a contract; 
 the request, assent, the consideration, 
 and the promise. 
 
 LANDLORD AND TENANT. See Lease. 
 Warranty of premises ; illustrations ; out- 
 line ; citation. Harris (380) ; Cleves. 
 Furnished apartments distinctive rule. 
 
 Smith (382). 
 Tenant cannot dispute landlord's title 
 
 Horner (417) ; Williamson (417). 
 Conditions in leases ; bond construed- 
 Dumpor's Case (417). 
 
 LANFEAR (181) : Judicial notice. 
 
 LANGABIER (174a) : Process may be- 
 served on Sunday. 
 
 LANGE (159) : Immunity of judicial of- 
 fleers 
 
 LANGRIDGE v. LEVY: Contract with one 
 for a third person. Remoteness (417). 
 
 LANSDOWNE : Mistake of law when an ex- 
 cuse. 
 
 LARCENY : A thief can give no title. See 
 Sales. 
 
 LAWRENCE (132) : Taxation proceedings, 
 must be certain. 
 
 LEA (30) : Pleadings must not be ambigu- 
 ous. Kewaunee. 
 
 LEASE : Covenant to rebuild. Hallett. 
 Renewal of by holding over. Clayton- 
 Conditions in ; effect of waiver. Dumpor. 
 
 LEGAL CONCLUSIONS : See Conclusions 
 of Law. Hanford (86) ; Howard v. 
 S. (166). 
 
 LEGES NON VERBIS SED REBUS SUNT 
 impositae : Laws are imposed on things, 
 
236 
 
 DATUM POSTS. 
 
 not words. See Fabula ; Sham Plead- 
 ings. §§ 103, 301. 
 
 LEGES POSTERIORES PRIORES CON- 
 trarias abrogant* : Bronson (338). 
 
 LEGISLATIVE JOURNALS : See Statutes ; 
 Records. 
 How proved. C. v. Kane (183). 
 Records, of what use. Montgomery (47). 
 
 LEGISLATIVE POWER: See Division of 
 State Power. 
 Limitations of, in procedure. Windsor 
 (1) ; Springer (24) ; Indianapolis 
 (223). See Prescriptive Constitu- 
 tion. 
 
 Cannot abolish certainty. Moore (21), et 
 seq.; Huntsman (231). 
 
 LEGISLATURES : Acts of statutes how 
 proved. C. v. Kane (183). 
 
 LE NEVE (396): Priorities; constructive 
 notice from deeds of conveyance. 
 
 LESTER (341) : Equitable exceptions to 
 the statute of frauds. 
 
 LETTERS : Contracts by. Adams (326) ; 
 L. C. 326-330; Patrick (417). 
 
 LEVY; SEIZURE OF PROPERTY: Justifi- 
 cation for. Savacool (164). 
 In custody of another court. See Cus- 
 todia Legis. 
 
 LEX EST MISERA UBI JUS EST VAGUM 
 aut incertum : It is a miserable state 
 of things when the law is vague and 
 uncertain. See Preface. § 219a. 
 
 LEX LOCI and LEX FORI. Van Voorhis. 
 
 LEX NEMINEM COGIT AD VANA SEU 
 inutilia peragenda : The law forces no 
 one to do vain or useless things. See 
 Surplusage ; Reason ; Convenience ; 
 Prolixity. §§ 155, 161, 183, 185, 225, 
 285o, 308<3, 311. 
 
 X.EX NON COGIT AD IMPOSSIBILIA : The 
 law requires nothing impossible. De 
 Crespigny (417). §§ 225, 292, 320, 332. 
 
 LEX NON EXACTE DEFINIT, SED AR- 
 bitrio boni viri permittit* : Lange (159). 
 §§ 147, 215, 216, 219a, 222, 225, 225a, 
 298 341. 
 
 LIBEL AND SLANDER : See Defamation. 
 Defences, how pleaded. J'Anson. 
 
 LICET DISPOSITIO DE INTERESSE FU- 
 turo sit inutilis tamen potest fieri de- 
 claratio praecedens quae sortiatur ef- 
 fectum interveniente novo actu : Al- 
 though the grant of a future interest be 
 inoperative, yet a declaration precedent 
 may be made which may take effect 
 provided a new act intervene. § 338. 
 
 LICKBARROW (394) : He who first trusted 
 must first suffer. 
 
 LIEN: Of carriers. Lickbarrow (294). 
 Of vendors. Lickbarrow (294). 
 
 LIMITATIONS OF ACTIONS : Concealment 
 of facts, effect. Farnam (97). 
 Demurrer will raise defence of, when. 
 Sturges (111). 
 
 LIMITATIONS OF INDEBTEDNESS : See 
 Constitutional Law. 
 
 LIMPUS : See Agency. 
 
 LIQUIDATED DAMAGES: Kemble (391). 
 
 LIS PENDENS : Notice from. Le Neve 
 (396). See Constructive Notice; 
 Caveat Emptor. 
 
 LITERATURE: Kingston's Case (76) most 
 widely cited. 
 Observations upon. R. v. Wheatley (19) ; 
 Pasley (375) ; J'Anson (91) ; Dovas- 
 ton (217). 
 
 LIVINGSTON (345) : Partners ; agents for 
 each other. 
 
 LOCUS PENITENTS : Right to retire from 
 an illegal contract. Diggle (371). 
 
 LOBBYING: Contracts void. Trist (214); 
 Tool Co. (365). 
 
 LOEFFNER (196) : Sanity; burden of proof. 
 
 LOGAN (249) : Expressio eorum. 
 
 LOSEE (210) : Res ipsa loquitur; negli- 
 gence. 
 LOST DOCUMENTS: And records rule. C. 
 
 v. Kane (183). 
 LOUGH v. OUTERBRIDGE (293) : What 
 
 may be waived. 
 LOVE JOY v. MURRAY (289) : Indemnity 
 
 contracts. 
 LOWRY (104) : False pleadings give no 
 
 rights. Nihil Possumus. 
 LUMLEY (417) : Enticing one to break a 
 
 contract ; malicious acts. 
 LYON (417) : "Act and operation of law" ; 
 
 meaning of. 
 MACLAY (327) : Contract by letter. 
 MAGNA CHARTA : See Murray (219) ; 
 
 Waco (300). 
 MAHASKA (213d) : Hearsay evidence. 
 MAHER (255) : Practical construction. 
 MAINTENANCE : Contracts of, illegal. Hol- 
 
 man (363). 
 MALEDICTA EXPOSITIO QU^ CORRUM- 
 pit textum : An evil exposition cor- 
 rupts the text. See Benedicta. 
 MALICE : See Intent ; Guilty Knowl- 
 edge ; Malum. 
 MALICIOUS ABUSE OF PROCESS: Sava- 
 cool (164). 
 MALICIOUS ACTS: Causing damage ac- 
 tionable. Cornfoot (385) ; Bennett. 
 Enticing one to break a contract, is ac- 
 tionable. Lumley (417). 
 Refusal to pay bank check. Marzetti 
 (417). 
 MALLAN (373): In pari contracts; re- 
 straint of trade. 
 MALLINCKRODT (12a) : The general de- 
 murrer is never waived. 
 MALUM NON PR^ESUMITUR* : See Every. 
 MANDATORY RECORD : What ought to be 
 of record must be proved by record 
 and by the right record is a con- 
 serving principle of procedure. See 
 Preface ; Huntsman (231) ; C. v. Roby 
 (74) ; J'Anson (91) ; Dovaston (217). 
 Its functions. Windsor (1) ; Perez (2c) ; 
 
 C. v. Roby (74). 
 Is the charter of the courts authority. 
 R. v. Wheatley (19) ; McLaughlin (31) ; 
 Bradbury (35) ; Munday (79) ; Gentry. 
 Admissions upon conclusive, irrefragable. 
 Evidence against inadmissible. Brad- 
 bury (35) ; Pym (46), et seq. 
 Limits judgments and decrees. Munday 
 (79), et seq. See Dictum, Usurpation. 
 Municipal and county boards must have 
 
 and be bound by. Provident (89). 
 Municipal corporations estoppels of record 
 
 upon. Provident (89). 
 Federal procedure and protection depends 
 
 upon. Furman (147a). 
 Necessary for the protection of officers. 
 
 Savacool (164) ; Howard (166). 
 Contract ; Allegations of elements protect 
 from arbitrary obligations, usurpation 
 and spoliation of property. Lampleigh 
 (301), et seq. 
 Is a constitutional implication. C. v. 
 Roby (74). 
 MARBURY (142) : Expressio unius. 
 MARRIAGE: Contracts. Holman (263). 
 Contracts in restraint of. Scott (417). 
 MARRIED WOMEN: Contracts of. Mauby. 
 MARRIOT (or MARRIOTT) : Interest reipub- 
 
 MARSHALSEA CASE: See Piper (114). 
 MARTIN v. EVANS : See Cohens ; Dictum. 
 MARTIN v. HUNTER'S (246) : Polity of 
 
 Federal government. 
 MARTIN v. PORTER (417) : Measure of 
 
 damages. 
 MARX (126) : Taxation ; essentials. 
 MARZETTI (417) : Exemplary damages. 
 
INDEX. 
 
 237 
 
 MASTER (417) : Commercial papers. 
 
 MASTER AND SERVANT : Liability for in- 
 jury of servant. Hilliard (417) ; Rob- 
 erts (417). 
 
 MATTHEWS (193) : Corpus delicti how 
 proved. 
 
 MAXIMS : Are the prescriptive constitution. 
 Windsor (1) ; Clem (2c). See Pre- 
 face. 
 Fundamental ; of government are its great- 
 est asset ; p. 11. See Preface (Da- 
 tum Posts) ; Murray (219) ; Taylor. 
 Are the beason lights of the' law. See 
 
 Preface (Datum Posts). 
 Juridical, of a constitutionalism are Verba 
 fortius, Frustra probatur and De non 
 apparentibus. P. 11. 
 Of morality. See Juris Praecepta ; Fal- 
 sus ; Allegans ; Morality ; Bona 
 Fide; Verba Fortius. Keech (417). 
 Paul was proud of them. See Preface. 
 Ulpian, Bacon and Hamilton advocated 
 their use. See Preface. 
 
 MAY v. BURDETT: Animals; Liability for 
 keeping. 
 
 McAFEE v. REYNOLDS : Courts are bound 
 by their records. McLaughlin (31). 
 
 MCALLISTER (3) : Substantial error can 
 not be waived. 
 
 McARTHUR (99) : An appellant must af- 
 firmatively show. Actore. 
 
 McCAUGHEY (184) : Evidence need not be 
 be pleaded. 
 
 Mcculloch (or m'culloch) (147) : a 
 
 principal thing carries its incidents. 
 
 McCULLY v. CLARK (206) : Negligence 
 must be proved. 
 
 McELMOYLE v. COHEN (56) : Full faith 
 and credit due judicial records. 
 
 McKYRING v. BULL (33) : New matter must 
 be pleaded. 
 
 MCLAUGHLIN (31) : Function of judicial 
 records. 
 
 McMANUS v. CRICKETT (or M'MANUS) : 
 See Agency. 
 
 McNAGHTEN'S CASE (or M'NAGHTEN'S) 
 (195) : Actus non facit; intent in crime. 
 
 MELIOR EST CONDITIO DEFENDENTIS 
 (or Possidentis') : The cause of the de- 
 fendant is the better. 
 
 MELIUS PETERE FONTES* : § 45. Preface. 
 
 MEMORANDUM: What required under stat- 
 ute of frauds. Wain (335). 
 Signature of what sufficient. Brown (346). 
 
 MENS REA : See Actus Non Facit. 
 
 MERCHANTS' BANK v. STATE BANK 
 (417) : Corporations liable for tort. 
 
 MEREST v. HERVEY (or HARVEY) : Ex- 
 emplary damages. 
 
 MERGER : Causes of action when they 
 merge. White (175). 
 Private wrong into public. White. 
 
 MERRYWEATHER v. NIXON: No Contri- 
 bution among wrongdoers. 
 
 MICHOUD v. GIROD : See Keech ; Agency ; 
 
 MILLER v. DILL (2906) : Objections — ex- 
 ceptions must be specific. 
 
 MILLER v. HYDE : Title passes upon judg- 
 ment of tort, when. Lovejoy (289). 
 
 MILLER v. RACE : Commercial paper ; Bank 
 bills like cash pass on delivery. 
 
 MILLETT v. P. (417) : Limitations of legis- 
 lative power. - 
 
 MILLS v. DURYEE (57) : S. P. McElmoyle ; 
 Records of sister states. 
 
 MILLS v. WYMAN (316) : Consideration for 
 contract. 
 
 MISERA EST SERVITUS, UBI JUS EST 
 vagum aut incertum : It is a miserable 
 slavery where the law is vague or 
 uncertain. See Ubi Jus, Nullum ; Sta- 
 
 bility of Law; Preface (Datum 
 Posts). 
 
 MISJOINDER : See Brugger ; Rice. 
 
 MISNOMER : See Names ; Idem Sonans. 
 
 MISREPRESENTATION : See Caveat Emp- 
 tor ; Deceit ; Warranty. 
 As an element in the law of sale — con- 
 tract. Chandelor (374) ; Pasley (375- 
 384), et seq.; Jenkins (417). 
 
 MISTAKE : See Ignorantia Legis. Gordon 
 
 (417) ; Lansdowne (417). 
 
 Avoids a contract when. Zaleski (306). 
 
 Outline citation ; General observations. 
 
 Brown (347) ; Kyle (348) ; Wheadon. 
 
 Bilateral error may be corrected. Brown 
 
 (347) ; Mitchell v. Kingman (415) ; 
 
 Contract of insane. 
 
 As to existence of thing sold avoids sale. 
 
 Tarling (404) ; Kyle (348). 
 Negligence does not excuse. Brown (347). 
 As to person contracted with vitiates. 
 
 Wheadon (349). 
 Mutual mistake is ground for correction. 
 
 Wheadon (349). 
 Reformation; rescission. Hunt (417). 
 
 MITCHEL v. REYNOLDS (372) : Restraint 
 of trade ; Contracts contrary to public 
 policy. 
 
 MOBLEY v. NAVE (46a) : Records are ir- 
 refragable. See Mondel. 
 
 MODICA CIRCUMSTANTIA FACTI JUS 
 mutat : A small circumstance attending 
 an act may change the law. § 215. 
 
 MODUS ET CONVENTIO VINCUNT LE- 
 gem** : See Consensus; Communis. 
 §§ 108, 218, 332, 393, 403. 
 
 MOHR v. MANIERRE (68) : Sale of lands 
 of decedents ; strict rules of procedure. 
 
 MOLTON v. CAMROUX (413) : Insane ; 
 Contracts of. 
 
 MONDEL (77) : Records are irrefragable. 
 See Mobley. 
 
 MONEY HAD AND RECEIVED : Hendrick 
 (319) ; Boston (320) ; Brooks (370). 
 
 MONOPOLY: Forestalling, regrating State 
 of Nebraska (417) ; Mitchel (372). 
 
 MONTANA CATHOLIC v. MISSOULI CO. 
 (10&) : Pleadings, their functions. 
 
 MONTGOMERY BEER BOTTLING WORKS 
 v. Gaston (47) : What is a record. 
 
 MONTGOMERY v. EDWARDS (292) : Ex- 
 ceptions must be specific. 
 
 MOORE v. C. (21) : Every presumption is 
 against a pleader. 
 
 MORALITY : Maxims of. See Summa ; Alle- 
 gans ; Nullus ; Commodum ; Ex Dolo ; 
 Frustra Probatur ; In Pari ; Malum ; 
 Falsus ; Caveat ; Simplex ; Verba 
 Fortius ; Good Faith ; Bona Fide ; 
 He Who Seeks Equity, etc. ; Juris 
 Praecepta ; Nihil Possumus ; Jurare 
 Est Deum. Cutter (308) ; Weltmer 
 (268a); Beaumont (367) ; Pain (107); 
 Windsor (1) ; Trist v. Child (214) ; 
 Holman (263-273), et seq. Variance; 
 Departure ; Prescriptive Constitu- 
 tion. 
 Equivocal pleadings, objections and excep- 
 tions, obnoxious. See Certainty. L. 
 C. 2906-299 : cases. 
 Moral laws are annexed by implication. 
 
 Trist (214), et seq. 
 Auction sales ; puffing bids invalid. Payne. 
 Entire contracts ; Breach of ; recovery ; 
 
 Moral considerations. Cutter (308). 
 Agent cannot plead illegality when sued 
 for funds derived from a trust rela- 
 tion. Brooks (370). 
 
 MORAL OBLIGATIONS : See Consideration. 
 
 MORLEY (377) : Warranty; Title to prop- 
 erty is implied. 
 
 MOSER (125) : Taxation depends on a 
 record. 
 
238 
 
 DATUM POSTS. 
 
 MOSS (417) : Registration of mortgages to 
 give notice. 
 
 MOSTYN v. PABRIGAS (274): Venue; lo- 
 cal and transitory causes of action. 
 
 MOTION : In arrest must appear from the 
 mandatory record. Harris (158). See 
 Hitchcock (12). 
 In arrest is founded on a ground of the 
 general demurrer. Windsor (1), et seq.; 
 Lampleigh (301), et seq. 
 Functions of, in practice. P. v. McCum- 
 ber (110). 
 
 MOTIVE : See Intent. 
 
 MURRAY (219) : Due process of law. 
 
 MUNDAY v. VAIL (79) : Pleadings confer 
 jurisdiction. 
 
 MULTITUDO IMPBRITORUM PBRDIT Cu- 
 riam : A multitude of ignorant prac- 
 titioners destroys a court. § 74. 
 
 MUNICIPAL CORPORATIONS: See COR- 
 PORATIONS. 
 
 MUTUALITY : Both sides must be bound by 
 a contract or neither is. Cook (320) ; 
 Payne (307) ; Hendrick (319). 
 
 MYERS (150) : Abatement pleas. 
 
 NAMES : One may adopt any name. Moore 
 v. C. (21) ; Brown (346). See Prae- 
 sentia Corporis. 
 In procedure must be certain. Wiebold 
 (98).' See Certainty; Constructive 
 Notice. 
 Corporate existence must be alleged, wie- 
 bold (98) ; Harris (229). 
 Outline citation. General observations. 
 Brown (346). 
 
 NEAGLE'S CASE (248) : A principal thing 
 carries with it its incidents. Expressio 
 eorum. Logan (249) ; M'Culloch (177). 
 
 .NECESSARIES: Contracts for. Boston (320)- 
 Peters (417) ; Ryder (417). See In- 
 fants ; Married Women. § 164. 
 
 NECESSITAS INDUCIT PRIVILEGIUM 
 quoad Jura privata* : Founds many 
 rules of procedure. C. v. Kane (183). 
 § 183, 194, 273. 
 
 NECESSITY : Influences many rules of evi- 
 dence. C. v. Kane (183). 
 Procedure influenced by ; illustrations. C. 
 
 v. Kane. See Salus. 
 Declarations against interest rest upon. 
 Higham (213c), et seq. 
 
 NEEDHAM (261) : Judgments will be set 
 aside for fraud. 
 
 NE EXEAT REGNO (REPUBLICA) : That 
 *he leave not the realm. 
 
 NEGATIVE ALLEGATIONS : How pleaded 
 and proved. Green (90). 
 
 NEGATIVE PREGNANT PLEADINGS: Pain 
 (107). See Ambiguity. 
 
 NEGLIGENCE : Allegations of must be 
 
 proved as laid. Bristow (135) ; King. 
 
 How proved. See Burden of Proof. King 
 
 (205) ; McCully (206) ; Stokes (207). 
 
 Res ipsa loquitur. Kearney (211). 
 
 NEGOTIABLE INSTRUMENT: See Com- 
 mercial Paper. 
 
 NELSON (129) : Inferior tribunals. 
 
 NEMO ALLEGANS SUAM TURPITUDINEM 
 audiendus est : No one alleging his own 
 turpitude is to be heard as a witness. 
 §415. 
 
 NEMO DAT QUI NON HABET» : See Sales. 
 
 NEMO DEBET BIS VEXARI PRO UNA ET 
 eadem causa** : See Res Ad'judicata. 
 §§ 69, 72, 74, 75. 
 
 NEMO DEBET ESSE JUDEX IN PROPRIA 
 sua causa** : Dimes v. Grand Junction 
 Canal. P. 3, 7, §§ 176, 214, 222, 269. 
 
 NEMO PR^SUMITUR MALUS* : See Coffin. 
 
 NEMO TENETUR SEIPSUM ACCUSARE** : 
 P. 3, §§ 169, 191, 193, 201. 
 
 NEW MATTER: Matter of must be pleaded. 
 McKyring (33). 
 Enumerated matters. McKyring. 
 
 NEWSPAPER: What is for publication of 
 notices. Ricketson (59). 
 
 NEW TRIAL: Essential to present waivable 
 matter for a review. Richardson (230). 
 See Assignment of Error ; Debile. 
 L C 296-299 
 
 NEW YORK CENTRAL (355) : Common car- 
 rier can not contract for immunity of 
 liability. 
 
 NICHOLS: See Actus Dei. 
 
 NIGRUM NUNQUAM EXCEDERE DEBET 
 rubrum : Text should be no more com- 
 prehensive than the title. Bobel (250). 
 §250. 
 
 NIHIL IN LEGE INTOLERABILIUS EST, 
 eandem rem diverso jure censeri : Noth- 
 ing in law is more intolerable than that 
 the same case should be subject (in 
 different courts) to different views of 
 the law. § 219a. See Ubi Jus Inceb- 
 
 TUM. 
 
 NIHIL POSSUMUS*: Graver (103). 
 
 NIHIL TAM CONVENIENS EST NATURALI 
 sequitati quam unumquodque dissolvi eo 
 ligamine quo ligatum est* : §§ 183, 279, 
 311 323 
 
 NIL FACIT ERROR NOMINIS CUM DE 
 corpore constat : An error in the name 
 is immaterial, if the body is certain. 
 § 220. See Praesentia Corporis. 
 
 NIXON (127) : Record must evince funda- 
 mental requirements. Audi. 
 
 NOBLE (251) : Custom can not derogate 
 from general laws ; Statutes. 
 
 NON HJEC IN FCEDERA VENI* : Assent 
 essential for contract. §§ 1, 301, 302, 
 303, 308, 320, 324, 327, 334, 334a, 
 335 345 405 
 
 NON OBSTANTE VEREDICTO : See Arrest 
 of Judgment ; Collateral Attack. 
 Windsor (1), et seq.; Hitchcock (12), 
 et seq.; J'Anson (91). §§85, 88. 
 
 NON POTEST ADDUCI** : 
 
 NORRINGTON : See Entire Contracts ; In- 
 stallment. 
 
 NORTHERN BANK V. PORTER TOWN- 
 ship. Dictum. 
 
 NOSCITUR A SOCIIS*: Burks (217a). 
 P. 10, §217a. 
 
 NOTICE : See Audi ; Service of Process- 
 Judgments depend on. Pennoyer (58). 
 To the agent is notice to the principal. 
 Le Neve (396). 
 
 NOVA CONSTITUTIO FUTURIS FORMAM 
 imponere debet non praateritis* : §§ 123, 
 237, 238. 
 
 NOVATION: Outline citation. Birkmyr. 
 
 NUDUM PACTUM : See Ex Nudo Pacto. 
 
 NULLA PACTIONE EFFECI POTEST NB 
 dolus praestetur : -By no agreement can 
 it be effected that there shall be no 
 accountability for fraud. See Pacta 
 Conventa. §§ 218, 352, 354. 
 
 NULLI VENDBMUS, NULLI NEGABIMUS, 
 aut differemus rectum, aut justitiam : 
 To none will we sell, to none will we 
 deny or delay right or justice. See 
 Delay ; § 300. 
 
 NULLUM TEMPUS OCCURRIT REGI* : 
 Lapse of time does not bar the right 
 of the crown. Barron (241). §241. 
 
 NULLUS COMMODUM CAPERE POTEST, 
 etc.* : One can not take advantage of 
 his own wrong. P. 1, §§ 67, 99, 155, 
 198, 213e, 218, 308a, 308d, 313, 318, 
 320, 326, 327. 
 
 OAKLEY, 3 N. Y. (222) : Nemo debet esse: 
 judex. Dimes (176). 
 
INDEX. 
 
 239 
 
 OAKLEY, 4 N. Y. (66) : Notice is implied. 
 See Audi. 
 
 OBEDIBNTIA EST LEGIS ESSENTIA : 
 Obedience is the essence of the law. 
 
 OBJECTIONS : In appellate procedure ; im- 
 portance of. See Exceptions. Miller 
 (2906). See New Trial; Assignment 
 of Errors. 
 Not always necessary. Windsor (1) ; 
 
 Shutte (291). 
 Must be apt and specific. Grand Trunk 
 R. R. (290c), et seq.- See Appellate 
 Procedure. 
 
 OBLIGATION : Of contracts ; impairment or 
 courts may. Hanford (86) ; Bronson. 
 Observations relating to. Bronson : cases. 
 
 O'CONNELL (224) : Constitution of statutes 
 regulating procedure. 
 
 OFFER AND ACCEPTANCE: See Accept- 
 ance. 
 Offer must be bona fide. See Auctions 
 (puffing bids). 
 
 OFFICER: Immunity for official acts. Long 
 (159) ; Stetson (163) ; Savacool (164). 
 Six carpenters case (165). 
 
 OLIVE (182) : Judicial Notice. 
 
 OMNE MAJUS CONTINET IN SE MINUS** : 
 §§22c, 26, 74, 75, 91, 232, 232a, 299, 
 313, 324. 
 
 OMNIA PP^ESUMUNTUR CONTRA SPO- 
 liatorem** : Armory (180). P. 1, § 180. 
 
 OMNIA PR^ESUMUNTUR RITE ET SOLEM- 
 niter esse acta** : See Every. 
 Presumption of regularity never supplies 
 a material jurisdictional matter. Clark 
 (26) ; Hannah (128) ; Crepps (113) ; 
 Pennoyer (58) ; Ricketson (59). P. 3, 
 5, 10, §§ 2c, 11, 64, 79, 113, 114, 118, 
 119, 123, 127, 128, 183, 219, 230, 264. 
 
 OMNIS RATIHABITIO RETROTRAHITUR 
 et mandato aquiparatur* : See Ratifi- 
 cation. 
 
 ONE IS LIABLE FOR THE' NATURAL 
 direct and probable consequences of his 
 act* : See Every. 
 
 OPINIONS ; JUDGMENTS ; DISTINCTIONS : 
 See Dictum. 
 
 OPTIMA EST LEX, QU^E MINIMUM RE- 
 linquit arbitrio judicia : That is the 
 best system of law which confides as 
 little as possible to the discretion of the 
 judge. § 298. 
 
 OPTIMUS INTERPRES RERUM USUS* : 
 §399, 402. 
 
 OPTIMUS JUDEX, QUI, MINIMUM SIBI : 
 He is the best judge who relies as little 
 as possible on his own discretion. § 298. 
 
 OPTIONS : Contracts ; validity of. Good. 
 
 ORAL EVIDENCE : See Expressio Unius ; 
 Iverslie (46-58) ; Pym (52), et seq. 
 "What ought to be of record must be 
 proved by record and by the right 
 record." See ^Mandatory Record ; 
 Statutory Record ; Preface ; Expres- 
 sio Unius. 
 Record defined. Montgomery (47). 
 What must be in writing. Sturdivant. 
 Record matter where required is exclusive. 
 Campbell (2a) ; Planing (2d) ; Mobley 
 (46a) ; Pennowfeski. See Preface ; 
 (Datum Posts). 
 It is not only legal, but a duty to con- 
 tract that a compact shall be proved by 
 a writing, and this contract must be 
 respected. See Prescriptive Consti- 
 tution. 
 Writing can not be varied consistently 
 with reason, necessity and convenience. 
 Iverslie (46)), et seq.; Pym (52); 
 Dutton (381) ; Sturdivant (410). 
 Parties make their own contracts. Vogt. 
 
 Construction notice depends on record 
 
 matter that is exclusive. Iverslie (46). 
 
 Inadmissible to allect a deed. Worrall 
 
 (390) ; Sturdivant (410) ; Elwell (417). 
 
 Oral admission will dispense with a deed. 
 
 Queen's case (53a). 
 But not of a record or of an essential 
 
 pleading. Campbell (2a). 
 Commercial paper must speak for itself. 
 Brown (54) ; Sturdivant (410), et seq. 
 "Is a courier without luggage." Sturdi- 
 vant (410), et seq. 
 Writing required by the statute of frauds 
 must be sufficient. Goss (55) ; Wain. 
 Full faith and credit given judicial records. 
 
 M'Elmoyle (56), et seq.; Mills (57). 
 Custom cannot be shown by. Noble (257) ; 
 Wigglesworth (399) ; Blackett (400) ; 
 Smith (401) ; Soutier (402) ; Cooper. 
 ORDER OF PROOF OF PRESENTING Evi- 
 dence : C. v. Kane (183). See Dis- 
 cretion. 
 ORIGO REI INSPICI DEBET*: See Melius; 
 
 Regula. 
 OSCANYAN (41) : Solemn judicial admis- 
 sions bind client. 
 OUTRAM (25) : Fundamental principles of 
 
 res adjudicata. 
 OWEN v. WESTON : Amendments of record. 
 
 See Walden (139). 
 OYER AND PROFERT: C. v. Kane (183). 
 PACTA CONVENTA, QVJE NEQUE CON- 
 tra leges, neque dolo malo inita sunt ; 
 omni modo observanda sunt : Contracts 
 which are not illegal, and do not orig- 
 inate in fraud, must in all respects be 
 observed. See Nulla Pactione ; Pac- 
 tis ; Prescriptive Constitution. 
 §§218, 352, 363. 
 PACTIS PRIVATORUM JURI PUBLICO 
 non derogatur : Private contracts do not 
 derogate from public law. Holman 
 (363), et seq. See Pacta; Nulla 
 Pactione. §§ 321, 352, 354, 371. 
 PAIN, EX PARTE (107) : Repugnant plead- 
 ings void. 
 PARENT AND CHILD: Child cannot re- 
 cover for tort of parent. Roller (417). 
 PAROL (ORAL) EVIDENCE: See Oral. 
 
 Sturdivant (410). 
 PARTIES : Essential for jurisdiction. Will- 
 iams (93) ; Gibler (96) ; Virginia 
 (285a). 
 General rules ; observations. Williams. 
 Jurisdiction of must be acquired. Pen- 
 noyer (58). See Audi. 
 Joinder, misjoinder, non-joinder rules. 
 
 Rice (96). 
 Only a wronged party can complain. 
 Williams (94) ; S. v. Baughman (268) ; 
 Weltmer (268a). 
 One cannot prosecute himself. Watkins 
 
 (269). 
 Actual controversies only decided. Cali- 
 fornia (270). 
 Prosecution cannot appeal in criminal 
 cases. S. v. Croteau (271). 
 PARTNERS : Are agents for each other. 
 Livingston (345). 
 Outline citations ; general observations. 
 
 Livingston. 
 Contracts among, participation in profits. 
 Waugh (417). 
 PART PERFORMANCE : What constitutes. 
 See Equitable Exceptions to Statute 
 of Frauds. Lester (341). 
 PASLEY v. FREEMAN (375) : Deceit. 
 PASSENGERS : Rights and duties of, in 
 relation to common carriers. Coggs 
 (350) ; Wilson (351) ; Railway Co. v. 
 Lockwood (352) ; Ingalls (353) ; Hol- 
 lister (354) ; N. Y. R. R. (355) ; Calye's 
 
240 
 
 DATUM POSTS. 
 
 Case (356) ; Kansas City R. R. v. 
 Riley (367 >. 
 Tickets, contracts ; construction. Cherry 
 
 (417) ; Le Blanche (417). 
 Cannot discharge carrier from all liabili- 
 ty. N. Y. Cent. R. R. (352). 
 PATRICK v. BOWMAN: Deceit; contract 
 
 by letter (417). 
 PAYMENT : What constitutes. Cumber 
 (311). 
 Application of. Field (387). 
 Rules of. Tobey (417). 
 Part payment of overdue liquidated debt 
 is no discharge or accord. Cumber. 
 PAYNE (307) : Auction sales. 
 PEACHY v. SOMERSET (392) : Liquidated 
 
 damages ; penalties. 
 PEARCE (368) : In pari. 
 PECCATUM PECCATO ADDIT QUI CUL- 
 pee quam facit patrocinium defensionis 
 adjungit : He adds one offense to an- 
 other who, when he commits a crime, 
 joins to it the protection of a defence. 
 §103. 
 PENALTY: Stipulation for fixed damages, 
 when construed a. Kemble (391) ; 
 Sloman (393). 
 PENN (275) : Equitable jurisdiction over 
 
 non-residents. 
 
 PENNOYER (58) : Audi alteram partem. 
 
 [C. — stands for Commonwealth ; P. — 
 
 for People ; R. R. — for Railroad ; R. — 
 
 for Rex (King) or Regina (Queen) ; 
 
 S. — for State ; U. S. for United States.] 
 
 P. EX REL ATTORNEY GENERAL v. 
 
 Brown (131) : Inferior tribunals. 
 PEOPLE'S BANK v. CALHOUN' (12d) : 
 Stipulations ; contract ; consent cannot 
 delegate from the mandatory require- 
 ments of a constitutionalism. 
 P. v. HASTINGS (144) : Only an assessor 
 
 can assess ; division of state power. 
 P. v. MAYNARD (143) : See P. v. Hastings. 
 P. v. McCUMBER (110): Sham; false 
 
 pleadings. 
 P. v. ROBEY : Intent no element in statu- 
 tory crime. M'Naghten (185). 
 P. v. ROGERS (198) : Malice; intent, how 
 
 proved. 
 P. v. SEYMOUR (256) : Curative statutes 
 
 of taxation. 
 P. v. TURNER (252) : Limitations of legis- 
 lative authority. 
 PEREZ v. FERNANDEZ (2e) : Error on 
 
 the mandatory record saves itself. 
 PERJURY : Ground for setting aside judg- 
 ment. Barr (265). 
 PERRY v. PORTER (136a) : Allegata et 
 
 probata must correspond. 
 PERSONAL INJURIES: See Squib Case. 
 PETERS v. FLEMING (417) : Infants' 
 
 contracts for necessaries. 
 PETER v. COMPTON (340) : Contracts not 
 
 to be performed within one year. 
 PHELPS (191) : Possession of certain things 
 
 as evidence of crime. 
 PIPER (114) : Inferior and superior trib- 
 unals. 
 PLACITA (PLACITUM) : Importance of in 
 appellate procedure. Planing (2d) ; 
 Stubbings (49). 
 Essential for record. Planing (2d) ; 
 
 Stubbings. 
 Technicalities the safeguards of the law. 
 Stubbings. 
 PLANING MILL CO (2d) : The right rec- 
 ord must evince required matter. 
 PLEADINGS : Functions of. Windsor (1) ; 
 Campbell (2), et seq. ; Munday (79) ; 
 James (233). 
 Are the foundation of the judgment. 
 
 Campbell (2) ; Clem (2c). 
 Defined. Fish (2c). See Contra: cases. 
 
 People's Bank (12<J) ; Munday (79) ; 
 
 Piper (114). 
 
 Are always construed strictly. Lea (30) ; 
 
 Dovaston (217). See Verba Fortius. 
 
 Are servitors of justice if not abused. 
 
 Robinson (45). 
 Are construed from the conserving prin- 
 ciples. Robinson (45). See Conserv- 
 ing Principles. 
 Are made instruments of chicane and 
 
 covin. Robinson. 
 Admission is conclusive. Bradbury (35). 
 As evidence. Boileau (43) ; C. v. Kane. 
 Mandatory record matter conclusive. Boi- 
 leau (43). See Allegans. 
 Sworn answer, effect. Boileau. 
 Code rules strict and expressly declares 
 
 effect. Boileau : cases. 
 Jurisdiction depends on. Windsor (1) ; 
 Campbell (2), et seq.; R. v. Wheatley 
 (19) ; Moore (21), et seq.; Mallinek- 
 rodt (12a) ; Garland (60), et seq.; 
 Galpin (63), et seq.; Williamson (65) ; 
 C. v. Roby (74) ; Guedel (74a), et 
 seq.; Mondel (77) ; Munday (79), et 
 seq.; Horan (85), et seq.; J'Anson 
 (91), et seq. 
 Certainty of all pleadings requisite to. 
 support the conserving principles 
 whether civil or criminal. CampbelL 
 (2) ; Moore (21), et seq.; R. v. Wa- 
 ters (71) ; Cruikshank (232) ; Lea. 
 Aider by verdict ; limitations. Hitchcock 
 
 (12) ; R. v. Waters (71) ; Dobson. 
 
 Are irrefragable. Mondel (77) ; Munday 
 
 (79) ; Gay (138). See Res Adjudi- 
 
 cata. 
 
 Are to limit issues and to narrow proofs. 
 
 Munday (79) ; Gay (138) ; Lea (30). 
 
 General resume of. Williamson (65) ; 
 
 Harvey (123). 
 Duplicity forbidden. See Duplicity. 
 
 Lea (30). 
 Must not be double. Bowlus (100) ; 
 
 Rison (253) ; Lea (30). 
 Must be true. Wonderly (102) ; Graver 
 (103) ; Cutter (308) ; Payne (307). 
 Repugnancy forbidden. Pain (107) ; Lea. 
 Sham forbidden. P. v. McCumber (110). 
 Do not confer jurisdiction. Wonderly ; 
 
 Graver. 
 Prolixity forbidden. Whitney (112) ; 
 
 Haskel (101) ; Sturges (111). 
 Codes forbid repetition. Whitney (112) ; 
 
 Sturges (111). 
 Jurisdiction depends on real facts. Won- 
 derly ; Graver, et seq. See Fabula. S. 
 v. Conkling (109) ; Weltmer (268a). 
 As evidence. C. v. Kane (183) ; Boileau. 
 Lost, how proved. C. v. Kane ; Camp- 
 bell (2a). 
 Allegations not denied are admitted. C. 
 
 v. Kane; Boileau (43). 
 As admissions. C. v. Kane (183). 
 Statutory rights, how pleaded. Williams. 
 Indictments under statutes. C. v. Bean. 
 Provisos, how pleaded. C. v. Hart (227). 
 Contract ; technical allegations for ; pro- 
 tection depends on. Lampleigh (301), 
 et seq.; Cumber (311) ; Rann (312). 
 Res adjudicata depends on. L. C. 25-30 ; 
 
 C. v. Roby (74) ; Bates (225). 
 Prescriptive constitution requires for pro- 
 tection. See Prescriptive Constitu- 
 tion ; Res Adjudicata. 
 PLEAS : See Answers ; Replication. 
 Of confession and avoidance ; require- 
 ments : construction. J'Anson (91). 
 Cannot be double. Bowlus (100). See 
 
 Allegans. 
 Must not be too broad. Bowlus ; Rison. 
 If had in part are bad in toto. Rison. 
 
INDEX. 
 
 241 
 
 POLHILL (411): Agency; assumption of 
 authority. 
 
 POLICE POWER: Limitations. Barbier. 
 On right to contract. Millett (417). 
 
 POOR (37) : Denials must be certain. 
 
 POSITO UNO OPPOSITORUM NEGATUR 
 alterum : One of two opposite positions 
 being affirmed, the other is denied. § 34. 
 
 POSSESSION : Of commercial paper is 
 prima facie evidence of ownership. 
 Bonnell (185). 
 Of land ; «££ect of as evidence. See 
 Res Ipsa Loquitub. Lester (341) ; 
 Bell (417). 
 
 PRACTICAL CONSTRUCTION: See CON- 
 STRUCTION. 
 
 Illustration. Kelly (285) ; Maher (255) ; 
 
 Lester (341). 
 
 PRACTICE : See Procedure. 
 
 PR^ESENTIA CORPORIS TOLLIT ER- 
 
 rorem* : §§ 220, 266, 268a. See Nil 
 
 Facit Erboh; Res Ipsa Loquitur. 
 
 Weltmer (268a). View of Premises. 
 
 "A rose by any other name would smell as sweet," 
 
 A thorn by any other name would prick as deep. 
 PRJESUMATUR PRO. JUSTITIA SENTEN- 
 tiae* : The justice of a sentence should 
 be presumed. Clem (2c). § 2c. 
 PRAYER: Functions of. White (140). 
 
 General, sufficient. White. 
 
 May be waived. White. 
 
 Any sufficient. Hood (141). 
 PREPONDERANCE OF EVIDENCE: See 
 Reasonable Doubt. 
 
 Sufficient in a civil case. Bonnell (185). 
 
 Crime must be proved beyond a reason- 
 able doubt. Bonnell. See Prescrip- 
 tive Constitution. 
 PRESCRIPTIVE CONSTITUTION : See 
 Preface (Datum Posts). Windsor 
 (1) and following cases; J'Anson (91) ; 
 Trist (214) : cases. Public Pol- 
 icy ; Necessity ; Morality ; Con- 
 venience ; Mandatory Record ; Rea- 
 son ; also the maxims : Non h&c in 
 fcedera veni; Frustra; De non ap- 
 parentibus; Verba fortius; Verba in- 
 tentione; Favorabiliores ; Pacta con- 
 venta. Jordan (324): cases: P. v. 
 Turner (252) ; Trist (214) ; Dovas- 
 ton (217) ; J'Anson (91) ; Murray 
 (219) ; Oakley (222) ; Bates (225). 
 
 Protects the mandatory requirements of 
 a constitutionalism. Windsor (1) ; 
 Clem ( 2c) . See Implications ; Res 
 Adjudicata ; Conserving Principles ; 
 Mandatory Record ; Certainty. C. 
 v. Roby (74). 
 
 Right to cross-examine is a fundamental 
 right in a government of protection 
 with accusatory procedure. Wright. 
 
 The gift of the Roman and the Norman 
 races. See Preface. Windsor (1) ; 
 Clem (2c) ; Dovaston (217). 
 
 Verba fortius is a first principle of. See 
 Preface. Moore (21), et seq.; Spring- 
 er (24). 
 
 Fundamental requirements are annexed 
 by implication. Windsor (1) ; Oakley 
 (66, 222) ; Weaver (67) ; Bristow 
 (135); Trist (214), et seq.; Oakley 
 (222) ; Lampleigh (301) ; S. v. Bol- 
 den (216). 
 
 Variances cannot be authorized by stat- 
 ute. Bristow (135), et seq. See p. 11. 
 Frustra. Huntsman (231). 
 
 Departures cannot be allowed by statute 
 or codes. Bristow (135), et seq.; 
 Huntsman (231). 
 
 Common law expands and contracts 
 words in constitutions. C. v. Hess 
 (215) ; S. v. Bolden (216). 
 
 The fundamental maxims of government 
 
 16 
 
 constitute. Taylor (219a) ; P. v. 
 Turner (252) ; Marbury (142) ; Ash- 
 by (273). 
 
 Contract ; limitations of legislative author- 
 ity to interfere with. Taylor (219a) ; 
 Lampleigh (301). See Oral Evidence. 
 
 A statute cannot authorize administra- 
 tion proceedings upon a living man's 
 estate. Taylor (219a) ; Springer (24). 
 
 Cannot create causes of action where 
 none previously existed. See Fabula. 
 Taylor (219a) ; Springer (24) ; S. v. 
 Baughman (268) ; Weltmer (268a). 
 
 Statutes cannot nullify higher laws. Mar- 
 bury (142) ; P. v. Turner (262) ; Les- 
 ter (341). See Fraud. 
 
 Due process of law ; its definition in- 
 volves elements of. Murray (219) ; 
 Logan (249) ; Springer (24). 
 
 Common law rights are equal to those 
 specified in written constitution. Dash 
 (237a) ; Bronson (238). 
 
 Rex non potest peccare applies in con- 
 struing the federal constitution. Bar- 
 ron (241). 
 
 The word jury has a common law mean- 
 ing. Work (242). 
 
 Constitutions are construed in the light 
 of old law. Work (242) ; S. v. Bol- 
 den (216). 
 
 Limitations of legislative power. P. v. 
 Turner (252) ; S. v. Baughman (268) ; 
 Taylor (219a) ; S. v. Beach (258) ; 
 S. v. Bolden (216). 
 
 Unwritten constitution denied. Rison 
 (253) ; Blair (254). See Trist. 
 
 Statutory prescriptions as to effect of evi- 
 dence and its sufficiency. S. v. Thomas 
 (257) ; S. v. Beach (258) ; Phelps. 
 
 Delays of justice ; observations. Waco. 
 
 The essential maxims of contract involve. 
 Lampleigh (301) ; Taylor (219a) ; 
 Cutter (308). See Sales. 
 
 Parties may contract as they please if 
 only legally. See Contract. 
 
 And that a writing shall evince the con- 
 tract they have made. Fiunt enim. 
 See Oral Evidence ; Pacta Con- 
 venta. 
 
 Higher laws only limit legislatures. Ri- 
 son (253) ; Blair (254). 
 
 Contracts cannot be enforced upon per- 
 sons against consent. Bartholomew 
 (302); Cutter (308). See Sales. 
 
 Declaring contracts and obligations in 
 violation of the vital maxims of con- 
 tract would result in confiscation of 
 property. Lampleigh (301). See Con- 
 tract ; Sales. 
 
 Protection from presumption of guilt or 
 of liability is an essential principle of. 
 See Actore ; Burden of Proof. 
 
 Innocence is presumed. Coffin v. U. S. 
 Bonnell (185). 
 
 Governments accusatory require allega- 
 tions and proofs. See Actore ; Burden 
 of Proof ; Innocence ; Frustra. 
 
 Governments inquisitorial and confisca- 
 tory proceed without allegations and 
 proofs. See Due Process of Law. 
 
 Defendants are favored. Favorabiliores. 
 See Defendants ; Innocence ; Ac- 
 tore. 
 
 All laws are construed by the principles- 
 of the immutable constitution. Trist 
 (214) ; Oakley (222) ; Indianapolis 
 (223) ; O'Connell (224) ; Bates (225) ; 
 Huntsman (231) ; S. v. Bolden (216) ; 
 S. v. Townley (225a). 
 
 Constitutions yield to. Oakley (222). 
 
 Statutes likewise. Bates (225) ; Lester 
 (341) ; S. v. Croteau (271). 
 
 Protection from fraud and arbitrariness 
 depend upon principles of. Oakley 
 
242 
 
 DATUM POSTS. 
 
 (222); Lester (341); Windsor (1). 
 See Res Adjudicata; P. v. Turner 
 (252) ; S. v. Baughman (268) ; S. v. 
 Beach (258). 
 
 Fraud and gross negligence ; immunity 
 from, cannot be stipulated for. N. Y. 
 R. R. (352). See Pacta. 
 
 The mandatory requirements of a consti- 
 tutionalism cannot be consented nor 
 contracted away. Windsor (1). 
 
 Stability of law is a requirement of. 
 See Stare Decisis ; Stability of 
 Law; Preface (Datum P.). 
 
 Reason is a principle of. S. v. Bolden. 
 
 Inalienable rights are protected by. P. v. 
 Turner (252). 
 PRESENCE : Of prisoner essential at each 
 step in trial for felony. Munday (79) : 
 cases. 
 
 Mandatory record must show it. Mun- 
 day (79) : cases. 
 PRESUMPTION OF REGULARITY: See 
 Omnia Praesumuntur Rite ; Every ; 
 System. C. v. Kane (183) ; Bonnell 
 (185). Innocence; Prescriptive 
 
 Constitution ; Possession ; Res Ipsa 
 Loquitur ; Omnia Praesumuntur Con- 
 tra Spoliatorem ; Res Inter Alios ; 
 Probatis Extremis ; Praesentia 
 Corporis ; Vlew of Premises ; Verba 
 Fortius. 
 
 Recent possession of fruits of crime. R. 
 v. Partridge (190). 
 
 Cannot be made conclusive. S. v. Beach 
 (258). See Prescriptive Constitu- 
 tion. 
 PRESUMPTIONS : See Evidence ; L. C. 
 183-212 ; Every ; Omnia Praesu- 
 muntur Rite ; Omnia Praesumuntur 
 Contra Spoliatorem. C. v. Kane 
 (183) ; Bonnell (185). 
 
 Regularity. See Omnia Praesumuntur 
 Rite. Crepps (113) ; L. C. 113-134. 
 
 Must be respected. Bonnell (185). See 
 Prescriptive Constitution. 
 PRICE (213f) : Shop books, admissibility 
 
 in evidence. 
 PRIORITY : See Qui Prior Tempore. 
 PRISONER : Must be present at each step 
 in trial for felony. Munday (79) : 
 cases. 
 PRIVITY : In tort. See Squib Case ; In 
 Jure Non Remota. 
 
 In contract. See Consideration. Hen- 
 drick (319). 
 PROBATIS EXTREMIS PRAESUMUNTUR 
 (prasumitur) media*: See Every; 
 Res Ipsa Loquitur. 
 
 §§2c, 122, 182, 211, 312, 341. 
 PROCEDURE : See Appellate Procedure. 
 
 The study of procedure is the study of 
 government. See Preface. Windsor 
 (1) ; J'Anson (91) ; Cruikshank (232). 
 See Mandatory Record ; Govern- 
 ment ; Ubi Jus ; Conserving Princi- 
 ples ; Jurisdiction ; Division of 
 State Power, Constitutional Law. 
 
 To secure a review. See Appellate Pro- 
 cedure ; Waiver ; Exceptions ; Objec- 
 tions ; New Trial ; Assignments of 
 Error ; Consensus. 
 
 What can and cannot be waived. Wind- 
 sor (1) ; Campbell (2) ; Hitchcock 
 (12) ; R. v. Wheatley (19) ; Outranl 
 (25) ; Munday (79) ; J'Anson (91) ; 
 Huntsman (231) ; Cruikshank (232) ; 
 Dobson (232a) ; L. C. 290-299. See 
 Mandatory Record. 
 
 The conserving principles of, are Datum 
 Posts. See Preface ; Due Phocess 
 of Law. 
 
 Important cases cited. Barron (241). 
 
 Embraces evidence, pleading and practice. 
 Windsor (1). See De Non Apparen- 
 
 tibus ; Distinctive Titles Relat- 
 ing To. 
 Appellate procedure a conserving prin- 
 ciple ; fundamental rules. Windsor 
 (1), et seq.; L. C. 290-299. 
 "What ought to be of record must be 
 proved by record and by the right 
 record. Windsor (1). See Mandatory 
 Recohd ; Statutory Record ; Best 
 Evidence ; Estoppel. 
 The mandatory record is a constitutional 
 implication. Windsor (1), et seq.; 
 Huntsman (231) ; Cruikshank (232). 
 See Conserving Principles ; Audi ; 
 Verba Fortius. 
 A rule of construction and a presumption 
 upon which depend a government ac- 
 cusatory. See Actore ; De Non Ap- 
 parentibus ; Frustra. 
 Contract stability of, essentials of, de- 
 pend upon. Lampleigh (301). 
 Ex nudo pacta non oritur actio involves 
 
 procedure. Lampleigh. 
 Non hcec in fcedera veni also. Lampleigh. 
 The request in contract when implied or 
 
 presumed. Lampleigh. 
 Interacts upon contracts. Beaumont. 
 PROCESS : Must be served unless party 
 appeared. Pennoyer (58). 
 Regular ; essential to protect officer. Sav- 
 
 acool (164). 
 What is regular. Savacool. 
 Officer must return ; liability. Six C. C. 
 PRODUCTION OF DOCUMENTS: Rules. C. 
 v. Kane (183). 
 Original writing required telegrams. R. 
 v. Gibson (272). 
 PROHIBITION: By Federal to state court. 
 
 Neagle's (248). 
 PROLIXITY: When to be avoided. J'Anson 
 (91); Rosen" (92); Whitney (112); 
 Farnam (97) ; Sturges (111). 
 Statutory record should avoid. Vaiden. 
 Must be avoided. C. v. Kane (183). 
 Of proof unnecessary. C. v. Kane. 
 Abbreviations and figures may be used. 
 Berrian v. S. 
 PROTECTION DUE FROM GOVERNMENT : 
 Marbury (142) ; Lange (159) ; Waco 
 (300). See Usurpation ; Technicali- 
 ties ; Prescriptive Constitution. 
 PROVIDENT LIFE AND TRUST CO. (89) : 
 Municipal bonds depend upon a record. 
 PROVINCE OF COURT AND JURY: See 
 Ad Quaestionem. S. v. Croteau (271). 
 General rules. Bonnell (185). See Ad 
 Quaestionem. 
 PROVISOS : In statutes, how pleaded. C. 
 
 v. Hart (227). 
 PROVOCATION : See Volenti. 
 PROXIMATE CAUSE : Illegality ; as a de- 
 fense must be. Brooks (370). See 
 Remoteness ; Squib Case ; In Jure ; 
 Privity. 
 PUBLICATION : Of process ; when sufiBcient. 
 
 Ricketson (59) : cases. 
 PUBLICATION OF SUMMONS: Ricketson 
 
 (59) ; Galpin (63). 
 PUBLIC POLICY : See Salus ; Illegality ; 
 In Pari ; Restraint of Trade. 
 Influences procedure. Windsor (1). 
 Contracts in violation of, void. Holman 
 
 (363-373), et seq. 
 Influence upon common carrier's contract. 
 
 Railway Co. v. Lockwood (352). 
 Gross negligence cannot be stipulated 
 against. R. R. Co. (352). See Salus; 
 Pacta ; Nullvs ; Nulla. 
 PUNISHMENT : See Ubi Jus. 
 
 Is an incident to crime. Logan (249). 
 PUSEY (276) : Delivery of specific chattels 
 
 in equity. 
 PYM (52) : Oral evidence. 
 
INDEX. 
 
 243 
 
 QUANDO ALIQUID PROHIBETUR EX DI- 
 recto, piiphibetur et per obliquum : When 
 anything is prohibited directly, it is 
 also prohibited indirectly. Illsley (169). 
 §§98, 169. 
 
 QUANDO JUS DOMINI REGIS ET SUBDITI 
 CONCURRENT JUS REGIS PR^EFER- 
 RI DEBET : When the right of the 
 sovereign and of the subject concur, 
 the right of the sovereign ought to be 
 preferred. See Salus. 
 §§168, 345. 
 
 ■QUANDO VERBA STATUTI SUNT SPE- 
 cialia, ratio autem generalis, generaliter 
 statutum est intelligendum : When the 
 ■words of a statute are special, but the 
 reason or object of it general, the stat- 
 ute is to be construed generally. See 
 Verba Intentions. 
 
 QUASI CONTRACT : Boston (320) ; White. 
 
 QUASI MUNICIPAL CORPORATIONS : Lim- 
 itations of power to contract. White 
 (417). See County. 
 Contracts; status of. Lycoming (417). 
 See Corporations ; Ultra Vires. 
 
 •QUEEN'S CASE, THE (53a) : Oral evi- 
 
 rlpiipp * its t?l't'CCt 
 
 •QUICQUID PLANTATUR SOLO, SOLO CE- 
 dit : Whatever is affixed to the soil 
 belongs to it. See Fixtures. 
 
 •QUICQUID SOLVITUR, SOLVITUR SECUN- 
 dum modum solventis* : See Applica- 
 tion of Payments. § 387. 
 
 •QUI FACIT PER ALIUM FACIT PER SE : 
 He who acts by or through another 
 acts himself. See Qui Per Alium ; 
 Agency. § 370. 
 
 QUI affilRET IN LITERA, HjERET IN 
 cortice* * : See Benignae Faciendae ; 
 Benedicta ; Maledicta. 
 
 •QUI JUSSU JUDICIS ALIQUOD FECERIT 
 non videtur dolo malo fecisse quia 
 parere necesse est : He who does any- 
 thing by command of a judge will not 
 be supposed to have acted from an im- 
 proper motive, because it was necessary 
 to obey. Savacool (164). §164. 
 
 QUILIBET POTEST RENCNCIARE JUKI 
 pro se inducto** : See Modus ; Com- 
 munis. 
 
 QUI NON NEGAT, FATETUR : He who does 
 not deny, admits. See Denials ; Ad- 
 missions ; Qui Tacet. 
 
 QUI PER ALIUM FACIT PER SEIPSUM 
 FACERE VIDETUR : He who does any- 
 thing through another is considered as 
 doing it himself. See Agency ; Re- 
 spondeat Superior. §§ 202, 350. 
 
 •QUI PONIT FATETUR: The points he al- 
 leges are admitted. 
 
 QUI PRIMUM PECCAT ILLE, FACIT 
 rixam* : See Squib Case. C. v. York 
 (197). §§19, 308, 394. 
 
 QUI PRIOR EST TEMPORE POTIOR EST 
 jure** : Mortgages, registration of. 
 Keech (417) ; Moss (417). See Prior- 
 ity. Le Neve (396). 
 §§287, 395, 396, 397. 
 
 QUI SENTIT COMMODUM, SENTIRE DE- 
 bet et onus**: See Respondeat Supe- 
 rior; Cornfoot (385). §§202, 343, 345. 
 
 QUI TACET CONSENTIRE VIDETUR: 
 Silence gives consent. See Qui Non 
 Negat ; Consensus ; Denials. § 292. 
 
 QUOD AB INITIO NON VALET, IN TRAC- 
 tu temporis non convalescet* * : Shutte 
 (291) ; p. 8, §§ 19, 61, 62, 79, 85, 119, 
 130, 135, 261, 301, 367. 
 
 QUOD EST INCONVENIENS* : See Conven- 
 ience. 
 -QUOD LEX NON VETAT PERMITTIT* : 
 pes (233). §249. 
 
 QUOD MINUS EST IN OBLIGATIONEM Vi- 
 detur deductum ; That which is the less 
 is held to be imported into the con- 
 tract. See Omne Majus. § 324. 
 
 QUOTIES IN VERBIS NULLA EST AMBI- 
 guitas, ibi nulla expositio contra verba 
 flenda est** : 
 
 RAILROADS : See Common Carriers. L. 
 C. 350-357. 
 
 [C. — stands for Commonwealth ; P. — 
 for People ; R. R. — for Railroad ; R. — 
 for Rex or Regina ; S. — for State ; U. 
 S. — for United States.] 
 
 R. R. v. GREER (283) : Equity suffers not 
 a wrong without a remedy. Ubi jus. 
 
 R. R. v. STEWART (290a) : Prolixity to be 
 avoided in Appellate Procedure. 
 
 RAILWAY COMPANY v. LOCKWOOD (352) : 
 Carriers can not contract for immunity. 
 
 RANN v. HUGHES (312) : See Consider- 
 ation. 
 
 RANSOM v. WILLIAMS (122) : The author- 
 ity for selling land must properly ap- 
 pear of record. 
 
 RATIFICATION. See Omnis Ratihabitio. 
 Ultra vires contract. Hitchcock (417) ; 
 Salt Lake (417). 
 
 RAYMOND (39): Denials; Sufficiency. 
 
 REAL ESTATE. See Landlord and Ten- 
 ant ; Deeds ; Possession ; Equitable 
 Exceptions to the Statute of Frauds ; 
 Fixtures ; Confusion and Accession. 
 Possession of, is notice of the occupant's 
 right. Williamson (417) ; Le Neve. 
 
 REASON : See Cessante. 
 
 Influences rules of procedure. C. v. Kane. 
 A ground and rudiment in construction. 
 S. v. Bolden (216). 
 
 REASONABLE DOUBT: Bonnell (185). 
 Rules stated. Bonnell. See Actore ; Pre. 
 
 PONDERANCE OF EVIDENCE. 
 
 REBUTTAL EVIDENCE: Discretion in al- 
 lowing. Barrow (298). 
 RECEIPT : Effect of a's evidence. Cumber. 
 RECITAL : In records not conclusive. Fer- 
 guson (264). 
 In deeds conclusive. See Estoppel ; 
 Deeds. 
 RECONVENTION : See Setoff ; Counter- 
 claim. 
 RECORD: What is a; Montgomery (47). 
 Where required is exclusive. Iverslie 
 
 (46), et seq. See Oral Evidence. 
 Is irrefragable as to allegation admis- 
 sion, denial and issue. Campbell (2), 
 et seq.; Dickson (34), et seq.; Bauer- 
 man (48), et seq.; Brittain (50) ; Mon- 
 del (77). 
 Mandatory record controls. Bradbury (35) ; 
 
 Garland (60). 
 In one case when admissible as evidence 
 
 in another. Wagner (290). 
 Proof of; rules. C. v. Kane (183). 
 Of sister states ; rules. C. v. Kane. 
 Judicial notice of. C. v. Kane. 
 RECOUPMENT : See Setoff. 
 
 When barred by former recovery. Mon- 
 del (77). 
 RECOVERY AT LAW ENDS LITIGATION : 
 
 See Res Ad judicata. Brittain (50). 
 REDDENDA SINGULA SINGULIS : Let each 
 
 be put in its proper place. 
 REES (334a) : Sureties ; Rights and 
 
 Remedies.* 
 REFEREE : His statements bind one refer- 
 ring to him. Fitzsimmons (384). 
 REFERENCE FROM ONE COUNT TO AN- 
 other : R. v. Waters — Waverton. L. C. 
 70-71. 
 REFORMATION: Mistake as a ground for 
 reforming a contract. Brown (347) ; 
 L. C. 347-349. 
 
244 
 
 DATUM POSTS. 
 
 SI DEFICIT LBX« : 
 Preface (Datum 
 
 RBGULA PRO LEGE, 
 See Title Page 
 Posts). 
 REHEARING : See Appellate Procedure ; 
 New Trial. 
 Is confined to the same case. Conductor's 
 (294). 
 RELEASE: Tender seal, effect. Ellis (389). 
 Of one joint debtor releases all. Ellis 
 
 RELEVANCY OF EVIDENCE : See Res 
 Inter Alios ; Allegata Et Probata. 
 System to prove intent. Strong (213a). 
 Collateral facts to prove intent. Strong 
 
 (213a) ; R. v. Ellis (2136), et seq. 
 Of record in one case in another. Wagner. 
 REMEDIAL STATUTES: Are liberally con- 
 strued. See Statutes ; Codes. 
 REMEDY : Attaches to every right. Ashby 
 (273). See Ubi Jus; Edwards (286) ; 
 R. R. v. Greer (283). 
 REMOTENESS : Bee In Jure ; Privity ; 
 Proximate Cause ; Squib Case ; Every. 
 Illegality as a defense to contract when 
 
 too remote. Brooks (370). 
 When a defense to contract. Hadley. 
 Sale of goods ; seller's liability to third 
 ■person. Langridge (417) ; Thomas 
 (417). See Hendrick (319). 
 REMOVAL OF CAUSE: See Federal Pro- 
 cedure. 
 Pleadings ; allegations essential for. Camp- 
 bell (2). 
 Right to must appear from the proper 
 record. Campbell (2) ; Furman (147a). 
 RENUNCIATION : Of contract gives imme- 
 diate right to sue. Frost (308a) ; L. C. 
 308a-308d. 
 REOPENING A CASE : See Discretion. 
 REPLICATION : See Reply. May be waived 
 in some courts. See Munday (79) : 
 cases. 
 REPLY : Cannot aid an antecedent pleading. 
 
 Windsor (1). 
 REPUGNANCY IN PLEADING. See Alle- 
 gan s ; Forbidden. Pain (107). 
 Repugnant clauses are void in construe* 
 tion. Barnard (108). See Absubdity; 
 Allegans. 
 REPUGNANCY IN STATUTES: Barnard. 
 REPUTATION : General, how proved. C. v. 
 
 Kane (183) ; C. v. Gannett (213#). 
 REQUEST : See Assent ; Intent. Promise 
 must request the moving of the con- 
 sideration expressly or impliedly in con- 
 tract. Lampleigh (301) ; Bartholomew 
 (202), et seq. 
 RES AD JUDICATA : Is a conserving prin- 
 ciple of procedure, influencing construc- 
 tion and minor rules. See Preface. 
 L. C. 25-33 ; 225. 
 Requirements for are interpreted into stat- 
 utes and practice acts. Bates (225). 
 See Prescriptive Constitution ; Pub- 
 lic Policy. 
 Depend on pleadings and the entire man- 
 datory record. Campbell (2) ; Robinson 
 (16) ; Van Cleaf (17) ; Outram (25), 
 et seq.; C. v. Roby (74). 
 Plea of ; the defense is odious and all 
 presumptions are against it. Outram 
 (25), et seq.; Lea (30), et seq.; Bis- 
 sell (42). 
 Defendants relying on, are not favored. 
 Outram; Cromwell (26) ; Lea; Wright. 
 Party directing, and controlling litigation 
 is bound though not named upon the 
 record. Bauerman (48). 
 The last estoppel prevails. Trevivan (78). 
 Judgment must be on merits to constitute 
 Bissell (42). 
 
 Repugnancies insufficient for. Pain 
 (107) ; Huntsman (231). See Repug- 
 nancy. 
 Judgment must be final and on the merits. 
 
 Bonesteel (151). 
 Interlocutory proceedings ; judgment on is 
 
 not final. Bonesteel (151). 
 The defense originates from public policy. 
 Interest reipublicw ut sit finis Htium 
 Kingston's Case (76) ; Perez (2e). 
 RES EST MISERA UBI JUS EST VAGUM 
 et incertum : It is a miserable state of 
 things where the law is vague and un- 
 certain. See Preface (Datum Posts). 
 RESCISSION OF CONTRACT: Illegal con- 
 tract ; when ground for. Whitworth. 
 RES GESTAE : What is, illustration. Logan. 
 
 §§202, 384. 
 RES INTER ALIOS ACTA ALTERI NO- 
 cere non debet»* : Hendrick (319) ; Bos- 
 ton (320); pp. 3, 4, 8, §§84, 183, 185, 
 192, 202, 213a, 2136, 213<Z, 213e, 213f, 
 213(7, 213ft, 334, 357. 
 RES IPSA LOQUITUR*: See Praesentia 
 Corporis ; View of Premises. Kear- 
 ney (211) ; R. v. Partridge (190) ; 
 Phelps (191) ; u. S. v. King (192) ; 
 C. v. York (197) ; Stokes (207) ; Ham- 
 mack (208) ; Byrne (209) ;. Losee (210). 
 P. 2, 3, 4, 6, 9, §§32c, 180, 182, 183, 
 185, 190, 192, 207, 209, 211, 212, 2136. 
 213 ff , 255, 312, 341, 356, 390. 
 RESISTING AN OFFICER: See Arrest. 
 RESISTING FELONY BY TAKING LIFE: 
 
 See Self-Defense. 
 RESPONDEAT SUPERIOR: Let the prin- 
 cipal respond. See Qui Sentit, etc. : 
 Cornfoot (385). 
 RESTRAINT OF TRADE : Contracts in. • 
 
 Mitchel (372) ; Mallan (373). 
 RETREATING TO THE WALL: See Self- 
 Defense. 
 RETROACTIVE : See Ex Post Facto Laws. 
 Laws ; general discussion. Resume. L. 
 C. 239-241. 
 RETROSPECTIVE DECISIONS. See Stare 
 Decisis ; Ex Post Facto Laws. Han- 
 ford (86). 
 Departure from usual procedure vitiates. 
 Dash (237a). 
 RETURN OF PROCESS : May be impeached. 
 Hauswirth (51). 
 Liability for failing to make. Six C. C. 
 REUS EXCIPIENDO FIT ACTOR The de- 
 fendant by a plea becomes plaintiff. See 
 Ambiguum. 
 REVERSAL OF JUDGMENT : For error. See 
 Appellate Procedure. 
 Effect on title. Windsor (1). 
 REVOCATION: Of offer at auction sale. 
 Payne (307). 
 Of offer. Shuey (323) ; Cooke (321). 
 Of illegal contract. Diggle (371). 
 Of summons by abuse of authority. Wind- 
 sor (1). 
 REWARD : Contract obligations from offer 
 of. White (303) ; Williams (322) ; 
 Shuey (323). 
 REX NON POTEST PECCARE* : Govern- 
 mental corporations cannot commit 
 wrong. Virginia Coupon Cases (2S5a). 
 Immunity of judicial officers. Lange (159). 
 Of ministerial ofllcers. Stetson (163) ; 
 
 Savacool (164). 
 §§159, 164, 260. 
 
 [C. — stands for Commonwealth ; P. — 
 for People ; R. R. — for Railroad ; R. — 
 for Rex or Regina ; S. — for State ; U. 
 S. — for United States.] 
 R. v. ELLIS (2136) : Res inter alios; Proof 
 of collateral facts; Relevancy of evi- 
 dence. 
 
INDEX. 
 
 245 
 
 R. v. GIBSON (149) : Province of court and 
 
 jury. S. v. Croteau (271). 
 R. v. GIBSON (272): Pleas in abatement; 
 
 important rules. 
 R. v. GOLDSMITH (20) : Aider of pleadings. 
 R. v. KBYN (171) : Jurisdiction of crime. 
 R. v. LEWIS (173) : Jurisdiction of crime. 
 R. v. O'BRIEN (75): Former jeopardy; 
 
 rules. 
 R. v. OXFORD (200) : Sanity presumed un- 
 til contrary is shown ; Continuity. 
 R. v. PARTRIDGE (190): Presumptions; 
 Recent possession of the fruits of crime. 
 R. v. RILEY (2137i) : Collateral facts ; an- 
 swers to questions of conclusive. 
 R. v. ROWLANDS (234) : Indictments must 
 
 be certain. 
 R. v. VANDERCOMB (73) : Former jeop- 
 ardy ; a certain record essential for. 
 R. v. VAUX (72) : Indictment and record 
 
 must be certain. 
 R. v. WATERS (71) : Indictment; limita- 
 tions of liberal construction. 
 R. v. WAVERTON (70) : Aider by pleading 
 over. 
 Indictments must be certain and sufficient 
 in substance. 
 R. v. WHEATLEY (19) : Deceit; false pre- 
 tences ; public and private wrongs. In- 
 dictments confer jurisdiction ; courts 
 are bound by their records. 
 REYNOLDS (79a) : S. P. Munday. 
 RICE (95) : Parties; misjoinder; nonjoinder. 
 RICHARDSON (230): Corporate existence; 
 
 averment of. 
 RICKETSON (59) : Service by Publication. 
 RIGHT TO BEGIN : Burden of proof. 
 RISON (253) : Statutes when constitutional. 
 ROBINSON MINING CO. v. JOHNSON (16) : 
 
 Pleadings must be certain. 
 ROBINSON v. DAVISON (309) : Actus Del. 
 ROBINSON v. RALEY (45) : Pleadings are 
 
 servitors of justice. 
 RODEN v. HELM (126) : S. P. Windsor. 
 ROEHM v. HORST: Breach of contract; 
 
 right to sue. See Frost (308a). 
 ROSEN v. U. S. (92) : Scandal in pleadings. 
 ROSSITER: See Verba Genebalia. 
 ROSS v. HOUSTON : See Agency ; Notice to 
 
 the agent is notice to the principal. 
 ROYALL, EX PARTE (284) : Habeas Cor- 
 pus will release from illegal imprison- 
 ment when. 
 ROY N'EST LIE PER ASCUN* : Barron 
 
 (241) ; p. 1, §241. 
 ROY v. HORSELEY (288) : Terms of court. 
 HULE OF COURT : Must be followed. Citi- 
 zens (186). 
 RUNKLE (120) : Inferior tribunals. 
 RUSHTON (5) : Fundament views of plead- 
 ing ; outline citation. 
 RUSSELL v. MANN (87) : S. P. Williams. 
 RUSSELL v. PLACE (27) : Pleadings must 
 
 be certain to support res adjudicata. 
 RUSTIN (134) : A tax must be legally 
 
 evinced. 
 RYALL (397) : Assignments; equitable doc- 
 trines ; outline citation. 
 SALE: Outline citation; L. C. 404-409. See 
 Contract. 
 Caveat emptor; See Warranty; Deceit; 
 Misrepresentation; Chandelor (374); 
 Pasley (375) ; L. C. 374-384. See Ca- 
 veat Emptor. 
 Statute of Frauds ; requirements of. L. C 
 
 335-341. 
 Certainty required under statute. Wain. 
 What must be certain. Tarling (404). 
 
 See Contract ; Certainty. 
 When complete. Tarling (404), et seq. ; 
 
 White (303). 
 Title passes ; when. Tarling (404) ; Gibbs. 
 
 Of land ; it must be described. Sherman 
 
 (305) ; Wain (335). 
 Memorandum of sale required by statute. 
 
 Wain (335). 
 Possession under the statute ; how viewed. 
 
 Lester (341). 
 Of chattels. Elmore (409). 
 Acceptance ; delivery, under statute. 
 Shindler (407). See Res Ipsa Loquitur. 
 Offer to buy must be bona fide. Payne 
 
 (307). See Auction. 
 Vendee without intention of paying gets 
 
 no title. Fitzsimmons (384). 
 Non compos mentis persons, may con- 
 tract when. Molton (313). See In- 
 fants ; Married Women ; Lunatics ; 
 Necessaries. 
 Bona fide purchaser, when protected. Lick- 
 barrow (394). See Bona Fide Pur- 
 chaser. 
 Of commercial paper. Swift (417) ; Mil- 
 ler (417). 
 Of real estate. Bassett (395) ; Le Neve. 
 Of chattels and choses in action. Lick- 
 barrow (394) ; Bassett (395). 
 A thief can give no title. Nemo dat qui 
 
 non )iabet. Non dat qui non habet. 
 One can not be divested of his rights 
 against his consent is a principle of the 
 unwritten constitution. See Prescrip- 
 tive C. 
 Mistake as to the existence of the land ; 
 chattel or thing sold or compromised 
 avoids the contract. See Mistake. 
 Offer to buy must be bona fide. See 
 
 Auction; Payne (307). 
 Vendee without intention of paying gets 
 no title. Fitzsimmons (384). See Bona 
 Fide Purchaser. 
 Bona fide purchasers when protected. 
 Lickbarrow (394) ; Bassett (395). Le 
 Neve (396). 
 Title when it passes. Tarling (404) ; 
 
 Gibbs (405). 
 Acceptance; delivery. Shindler (407). 
 Acceptance under statute of frauds. Tem- 
 pest (408). 
 SALUS POPULI SUPREMA LEX* : See Pub- 
 lic Policy ; Conserving Principles. 
 §§2c, 76, 125, 169, 249, 285, 287, 291, 
 320, 322, 352, 354, 363, 372, 403. 
 SANBORN (61) : The right pleading must 
 
 confer jurisdiction. 
 SANITY : Burden of proof in criminal cases. 
 Hickory (194); M'Naghten (195); 
 Loeffner (196) ; C v. York (197) ; P. 
 v. Rogers (198). 
 SASPORTAS : See Duress ; Undue Influ- 
 ence ; Coercion. 
 SAVACOOL (164) : Regular process will 
 
 protect an officer. 
 SCANDAL IN PLEADINGS: Forbidden. 
 
 Rosen (92). 
 SCANDALOUS MATTER: Rosen (92). 
 Defamation by counsel. Hastings (160). 
 See Argument. 
 SCIENTER : Intent ; knowledge ; motive. 
 SCIENTIA SCIOLORUM EST MIXTA IG- 
 norantia : The knowledge of smatterers 
 is mixed ignorance. § 220. 
 SCINTILLA: Of evidence. Bonnell (185). 
 SCIRE LEGES NON HOC EST VERBA 
 eorum tenere, sed vim et potestatem : 
 To know the laws is not to observe their 
 mere words, but their force and power. 
 §§220, 298. 
 SCIRE PROPRIE EST REM RATIONE ET 
 per causam cognoscere : To know prop- 
 erly is to know a thing by its cause 
 and in its reason. § 220. 
 SCOTT v. SHEPHERD: Squib Case (417). 
 See Every ; Proximate Cause ; In Jure. 
 
246 
 
 DATUM POSTS. 
 
 SBABURY (281) : One must come into court 
 
 with clean hands. 
 SEAL : Imports a consideration when. Cum- 
 ber (311) ; Rann (312) ; Boston R. R. 
 (331) ; Ellis (389). 
 Technical effect of. Ellis. 
 Agent may use on parol authority. Wor- 
 
 *rall (390). 
 Is surplusage when. Worrall ; Gibson. 
 SEALED INSTRUMENTS: Are deeds. 
 
 Rann (312). 
 SEARCH : See Search Warrant. 
 SEARCH WARRANTS : Must be certain ; 
 technical requirements. White (130). 
 SEATTLE (36): Denial; admissions in 
 
 pleadings. 
 SEDUCTION: Hood (141). 
 SELF DEFENSE: Necessity produced by 
 slayer, how viewed. Vaiden (155). 
 See Nullus Commodum ; Volenti. 
 Right to resist illegal arrest. Howard 
 (166) ; Allen (167). 
 SEMAYNE'S CASE : Right to break and en- 
 ter doors. See Arrest. 
 SEMPER PR^ESUMITUR PRO NEGANTE* : 
 See Actore ; Prescriptive C. § 185. 
 SENTENCE : Must rest on a sufficient rec- 
 ord. C. v. Roby (74). 
 SEPARATION OF WITNESS: See Discre- 
 tion. 
 SERMO INDEX ANIMI : Speech is an in- 
 dex ot the mind. 
 SERVICE OF PROCESS : See Process ; Re- 
 turn or appearance necessary for judg- 
 ment. Pennoyer (58) ; Galpin (63). 
 By publication^ Ricketson (59) ; Galpin. 
 By means of fraud insufficient. Dunlap 
 (108) ; Hauswirth (51) ; Ilsley (169). 
 Exemption from. Dunlap. 
 Protection of officers what will. Savacool 
 (164) ; Allen (167) ; Ilsley (169) ; 
 Blair (170). 
 Infants can not waive as an adult. Wind- 
 sor (1) ; Galpin (63). 
 SET OFF : Mutuality as an element. Rich- 
 ardson (230). 
 SHAM PLEADINGS: See Fabula. 
 
 Observations on. P. v. McCumber (110) ; 
 Robinson (45) ; S. v. Baughman (368). 
 Will not confer jurisdiction. Wonderly 
 (102), et seq. 
 SHELLEY'S CASE (417) : Construction of 
 deeds. 
 Kent's apostrophe to. Dovaston (217). 
 SHERIFF : See Arrest ; Service of Pro- 
 
 SHERMAN (305) : Contracts must be cer- 
 tain. See Sale. 
 
 SHINDLER (407) : Sale; acceptance. 
 
 SHOP BOOKS : When admissible in evidence. 
 Price (213/). See Books. 
 
 SHUEY (323): Contract; revocation of 
 offer. 
 
 SHUTTE (291) : Procedure ; important 
 rules. 
 
 SIC UTERE TUO UT ALIENUM NON LJE- 
 das : So use your own, as not to injure 
 another's property. § 210. 
 
 SIGNATURE : What is a sufficient ; general 
 observations. Brown T346). 
 Memorandum required by the statute of 
 
 frauds. Wain (335). 
 Estoppel to deny ; accepting and acting 
 on a contract is a sufficient signing. 
 Brown (346). 
 
 SIMPLEX COMMENDATIO NON OBLI- 
 gat» : L. C. 374-384. §§ 374, 380. 
 
 SIX CARPENTER'S CASE (165) : Tres- 
 passers ab initio. 
 
 SKEATE (82) : Duress ; sufficient pleading. 
 
 SLANDER : See Scandal ; Defamation ; 
 Argument. 
 
 SLOMAN (393) : See Stipulated Damages; 
 
 Penalties. 
 SMITH v. HODSON (156) : Election of 
 
 rem f j dies 
 SMITH v. MARRABLE (382) : Warranty 
 
 of leased premises. 
 SMITH v. WILSON (401) : Custom and 
 
 usage. 
 SMOUT v. ILBERRY (417) : Death revokes 
 
 agency. See Boston (320). 
 SOUTIER (402) : See Custom ; Usage. 
 SOVEREIGNTY: Cannot be sued against its 
 
 consent. Hunsaker (259) ; Belknap. 
 SPECIFIC PERFORMANCE: Pusey (276). 
 SPLITTING CAUSE OF ACTION: See Res 
 
 Adjudicata. Forbidden. Perez (2c). 
 SPOLIATOR: Armory (180). See Every. 
 SPRAIGUE v. THOMPSON (236) : Statutes 
 
 valid in part. 
 SPRING CO. (366) : Lobbying; illegal con- 
 
 +VQ nfcs 
 
 SPRINGER (24) : No administration of a 
 living man's estate. 
 
 SQUIB CASE: Scott v. Shepherd (417); 
 Lickbarrow (394). See In Jure; Prox- 
 imate Cause. §§ 417, 19. 
 
 STABILITY OF LAW : See Stare Decisis ; 
 Lex Est Misera ; Ubi Jus Incertum 
 Ibi Jus Nullum. See Preface (Da- 
 tum Posts). 
 
 STAPILTON: Compromise. 
 
 STARBUCK (263) : Coram judice proceed- 
 ings ; essentials. 
 
 STARE DECISIS, ET NON QUIETA MO- 
 vere : To adhere to precedents and not 
 to unsettle things which are established. 
 But precedents must conform to funda- 
 mental law. Huntsman (231). See 
 Prescriptive C. ; Stability of Law ; 
 Preface (Datum Posts). § 219a. 
 
 STATE : See Sovereignty ; Government. 
 Not bound by constitution unless named 
 to be bound. Barron (241). 
 
 [C. — stands for Commonwealth ; P. — 
 for People ; R. — for Rex (King) or 
 Regina (Queen) ; S. — for State; U. S. — 
 for United States.] 
 
 S. v. BAUGHMAN (268) : Fabula non judi- 
 cium. Springer (24). See Cause of 
 Action. 
 
 S. v. BEACH (258) : Limitations of power 
 of legislature to change the burden of 
 proof. See Actore ; Prescriptive C. 
 
 S. v. BOLDEN (216) : Implications annex 
 themselves by construction. See Pre- 
 scriptive C. 
 
 S. v. CONKLING (109) : Dead issues give no 
 jurisdiction. 
 
 S. v. CONWELL (174) : Dies non. 
 
 S. v. CROTEAU (271) : Province of court 
 and jury. 
 
 S. v. MARLER (188): Insanity; burden of 
 proof. 
 
 S. v. THOMAS (257) : Statute — code — can 
 not make conclusive rules of evidence. 
 See Prescriptive C. 
 
 S. -v. THURSTIN (23) : Indictments must be 
 certain. 
 
 S. v. TOWNLEY (225a) : S. P. C. v. Hess ; 
 S. V. Bolden. 
 
 STATUTE OF FRAUDS. See Frauds and P. 
 
 STATUTES : Legislative acts how proved. 
 C. v. Kane (183). 
 Construction of rules illustrations. Trist 
 
 (214-260). 
 Fundamental law is annexed by impli- 
 cation. See Prescriptive Constitu- 
 tion. Trist (214) ; C v. Hess (215) ; 
 S. v. Bolden (216) ; Dovaston (217) ; 
 Burks (217a) ; Harper (218) ; Mur- 
 ray's (219) ; Taylor (219a). 
 Contracts incorporate by implication. Von 
 Hoffman (239). 
 
INDEX. 
 
 247 
 
 Mandatory ; directory ; distinction. Rick- 
 
 etson (59). 
 Penal and criminal are strictly construed. 
 
 Burks (217a). 
 Conferring civil rights are strictly con- 
 strued. Burks (217a). 
 Yield to the requirements of conserving 
 principles of procedure. See Conserv- 
 ing Principles. Indianapolis (223), 
 ei seq.; O'Connell (224) ; Bates (225). 
 See Lex Non Bxacte. 
 Intention governs construction of. In- 
 dianapolis. 
 Necessity, convenience, reason, morals, 
 and public policy influence and dom- 
 inate the construction of. Trist (214), 
 et seq. See Verba Intentione. 
 Borrowed from another state is construed 
 
 the same. S. v. Moore (222a). 
 When void for uncertainty. James (233) ; 
 
 Spraigue (236). 
 Title of. Bobel (250). 
 Fraud is excluded in construction of. 
 Lester (341) ; Trist (214). 
 STATUTORY RECORD : Observations. 
 Windsor (1) ; Clem (2c) ; distinctions 
 between mandatory record and. Plan- 
 ing {2d). 
 Trial judge must sign. Planing (2d). 
 Every presumption is against. Bates 
 (225); Harris (158). See Actore ; 
 Richardson (230). 
 Statement of facts is a fundamental right. 
 
 Wilson (154). 
 Will not supply mandatory records. Pur- 
 man (147a). 
 Facts proved may be certified instead of 
 evidence to avoid prolixity. Vaiden 
 (155) ; R. R. (290a). 
 Constitution of functions outline citation. 
 
 R. R. v. Stewart (290a), et seq. 
 Prolixity should be avoided. § 290a. 
 STATUTORY RIGHTS : How pleaded. Wil- 
 liams (7) ; Russell (87). See Verba 
 Fortius. 
 STETSON (163) : Joint trespassers, torts 
 
 by officers. 
 STILK (313) : Consideration ; important 
 
 rule. S. P. Cumber. 
 STIPULATION : Of counsel must be in writ- 
 ing. Sturdivant (410). 
 Can not dispense with the mandatory re- 
 quirements of a constitutionalism. 
 Campbell v. Greer (2a) ; People's Bank. 
 STOKES (207) : Res ipsa loquitur. 
 STOPPAGE IN TRANSITU: Observations 
 
 outline citations. Lickbarrow (394). 
 STRONG (213a) : System ; admissibility of 
 
 to prove intent. 
 STUBBINGS (49) : Placitum essential. 
 STURDIVANT (410): Agency; words de- 
 
 scriptio personte. 
 STURGES (111) : Prolixity must be avoided. 
 SUA SPONTE: Windsor (1). Campbell (2). 
 SUBJECT MATTER: Jurisdiction of essen- 
 tial. Windsor (1) ; Sanborn (61). 
 And it must be retained. Windsor. See 
 
 Jurisdiction. 
 Construction proceeds from the nature of. 
 Sturdivant (410), et seq. 
 SUBPOENA: See Production. 
 Duces tecum, sub C. v. Kane ; 15 Fed. 
 Rep. 716. 
 SUBROGATION: Volunteer paying debt of 
 another Is not subrogated. Boston 
 (320) ; doctrines ; contribution. Dering. 
 SUMMA RATIO EST QVM PRO RELI- 
 gione facit* : Morality a ground and 
 rudiment of law. § 214. 
 SUMMONS: Must be served on infant. Gal- 
 pin (63). 
 
 Adult may waive by appearing. Pennoyer 
 
 (58). See Appearance. 
 Abuse of authority revokes. Windsor. 
 SUNDAY : Process cannot be served upon. 
 Hauswirth (51) ; S. v. Conwell (174). 
 Not a day for judicial work. See Dies 
 Non; S. v. Conwell (174); Langabier. 
 Contract made on ; defense too remote. 
 Hall (369). 
 SURETIES: See Rees (334a). 
 
 Fraud and deception releases. Harris. 
 SURPLUSAGE: Not required in proof. C. 
 v. Kane (183). 
 Seal to a contract is ; when. Gibson. 
 Vitiates; when. Kraner (299). 
 Words descriptio persona are. Sturdivant. 
 SURPLUSAGIUM NON NOCET" : Utile per 
 
 inutile non vitiatur. §§ 155, 253. 
 SWIFT v. TYSON (417) : See Commercial 
 
 Paper ; Bona Fide Purchaser. 
 SYSTEM : Admissible to prove intent. Strong 
 
 v. S. (213a). 
 TAINTOR (344) : Agency; undisclosed prin- 
 cipals ; rules as to deeds. 
 TARBLE'S CASE (247) : Polity of federal 
 
 government ; justification defenses. 
 TARLING (404) : Sales ; when title passes. 
 TATLOCK: Novation. Birkmyr (339). 
 TAX : Depends on a record. L. C. 124- 
 
 134; C. v. Kane (183). 
 TAXATION: L. C. 124-134. Fundamental 
 principles of. L. C. 124-134. 
 States cannot tax agencies of federal gov- 
 ernment nor vice versa. McCullough 
 (147) ; Collector (148). 
 Collectors; their liability. Stetson (163). 
 Retrospective — assessments — forbidden. P. 
 v. Seymour (236). 
 TAX DEEDS: Can not be made conclusive 
 evidence. S. v. Thomas. See Prescrip- 
 tive C. 
 TAXPAYER'S REMEDIES: See Taxation. 
 TAYLOE (329) : Contracts by letter. 
 TAYLOR v. CALDWELL (310) : Actus Dei; 
 
 excuse breach of contract. , 
 TAYLOR v. PORTER (219a) : Due process 
 
 of law. 
 TECHNICALITIES : Are the safeguards of 
 the law. Windsor (1) ; Six C. C. 
 (165), et seq.; R. v. Wheatley (19), 
 et seq.; Bissell (42), et seq.; Stubbings 
 (49) ; Munday (79) ; Marbury (142), 
 et seq.; Bristow (135) ; Eddy (136). 
 Estoppels depend on. Bailey (44). 
 Taxation cases illustrate, L. C. 124-134. 
 Apply in taxation. Lawrence (132), et 
 
 seq.; P. v. Hastings (144). 
 Contract technical allegations protection 
 depends upon. Lampleigh (301), et seq. 
 Foundation of contract involves technical 
 essentials. Lampleigh (301), et seq.; 
 Sherman (305), et seq. 
 Title; when it passes. Tarling (404). 
 Equitable exceptions to statute of frauds. 
 Rules of technical. Lester (341). 
 Commercial paper depends on illustra- 
 tions. Sturdivant (410-412). 
 TEMPEST (408): Acceptance of chattel; 
 
 when title passes. 
 TERMS OF COURT : Rules relating to. Roy 
 (288). See Jurisdiction. 
 Courts must act at time and place speci- 
 fied. Blair (170). 
 Judges in vacation, powers. Blair. 
 TERRY (240) : Statute of limitations ; when 
 
 they accrue are a vested right. 
 TESTIMONY OF DEAD, ABSENT AND 
 disqualified witnesses. Drayton (213e). 
 THATCHER (117) : Sale of land under 
 
 statutory powers ; important rule. 
 THEORY OF THE CASE : Observations re- 
 lating to. Windsor. See Waiver ; Man- 
 
248 
 
 DATUM POSTS. 
 
 DATOKY RECORD ; PREFACE (DATDM 
 
 Posts). L. C. 2906-299. 
 THOMAS v. BOARD (10a) : Allegations 
 
 must be certain. Verba Fortius. 
 THOMAS v. MACKBY (15) : Allegata et 
 
 •probata must correspond. 
 THOMAS v. WINCHESTER (417) : See 
 
 Langridge. 
 THOMSON v. DAVENPORT (342) : Agency, 
 
 disclosed and undisclosed principals. 
 THORNBOROW (333) : Unconscionable 
 agreements ; adequacy of consideration 
 not inquired after. 
 THREATS : See Duress ; Coercion. 
 TICKETS : Contracts arising from passen- 
 ger. Coggs (350), et seq. 
 Limiting liability of. Railway v. Lock- 
 wood (352) ; HoIIister (354) ; Kansas 
 City R. R. (357). 
 Protection due to passenger. Kansas City 
 
 R. R. (357) ; Craker (417). 
 Outline citation general observations. 
 
 Kansas City R. R. (357). 
 Assignability of. Kansas City R. R. (357). 
 Time tables ; a part of carrier's con- 
 tract. Le Blanche (417). 
 Assent to conditions in, not presumed. 
 Pa. R. R. (417) ; Cherry (417). 
 TILTON (133) : Taxation proceedings must 
 
 be certain. 
 TIME: Computation of. Warren (243). 
 TITLE : To statutes ; effect in construc- 
 tion. Bobel (250) ; S. v. Bolden (216). 
 To property ; judgment in tort will not 
 
 transfer. Lovejoy (289) ; Miller. 
 Thief can give no title. Bentley (417). 
 Nemo dat que non habet. See Pre- 
 scriptive Constitution. 
 TOBEY v. BARBER: Payment; law of 
 
 (417). 
 TOO BROAD ; TOO NARROW : Pleadings 
 must not be. Bowlus (100). See 
 Pleadings. 
 TOOL CO. (365) : Lobbying contracts il- 
 legal. 
 TORTS : See Malicious Acts ; Negligence ; 
 Squib Case. 
 Enticing one to break a contract. Lum- 
 ley (417). 
 TRACY v. TALMAGE : In pari. Holman. 
 TRESPASS : Officers when liable for. 
 
 Lange (159) ; Stetson (163) ; Sava- 
 cool (164) ; Howard (165). 
 Trespasser can claim no benefits from his 
 trespass. Bull (417). 
 TRESPASSER AB INITIO: Who are. Six 
 
 C. C. (165). 
 TREVIVAN (78) : The last estoppel pre- 
 vails. 
 TRIST v. CHILD (214): Construction; 
 moral laws are fundamental and a 
 part of the prescriptive constitution. 
 TRUE : Pleadings must be. Wonderly 
 
 (102). See Fabula. Pain (107). 
 TRUEMAN: The bar of bankruptcy is 
 waived by a new promise ; also of 
 limitations. Bartholomew (302). 
 TRUST AND TRUSTEES : Cannot deal with 
 trust estate. Keech (417) ; Boyd (62). 
 Trustee cannot plead illegality as a de- 
 fence. See Agency. 
 TWYNE'S CASE: Fraudulent conveyances. 
 UBI EADEM RATIO, IBI IDEM JUS, etc. : 
 Where there is the same reason, there 
 is the same law, and the same judg- 
 ment should be rendered on the same 
 state of facts. §§ 34, 127, 222a. 
 UBI JUS, IBI REMEDIUM* : Observations. 
 Marbury (142) ; Ashby (273) ; R. R. 
 v. Greer. §§ 142, 183, 273, 274, 278, 
 279, 283, 286, 341. 
 
 UBI JUS INCERTUM, IBI JUS NULLUM: 
 Where the law is uncertain there is 
 no law. Nihil in lege. See Preface 
 (Datum Posts) ; Stability of Law. 
 P. 1, §185. 
 ULTRA VIRES : Contracts are, when. Hill 
 (417) ; Hitchcock (417) ; Salt Lake. 
 §§177, 302, 417. 
 UNCERTAINTY: Is destructive of juris- 
 prudence. See Preface (Datum 
 Posts) ; Ubi Jus Incebtum ; Stabil- 
 ity of Law. 
 UNDUE INFLUENCE: Avoids a contract. 
 Holman (363) ; Chesterfield (417) ; 
 Horn (417) ; Huguenin (417). See 
 Dtirfrs 
 V. S. v. CRUIKSHANK (232) : The study of 
 procedure is a study of government ; 
 indictments must be certain. See 
 Vadakin. 
 U. S. v. GOODING (202): Accomplices; 
 confessions of ; indictments upon stat- 
 utes. 
 U. S. v. KING (192) : Possession of the 
 
 means of crime ; presumptions from. 
 U. S. v. MILLS (235) : Indictments must 
 
 be certain. 
 U. S. v. PEREZ (69) : Former jeopardy; 
 
 elements of. 
 UNIUS OMNINO TESTIS RESPONSIO NON 
 audiatur : Let not the evidence of one 
 . witness be heard at all. 
 UNO ABSURDO DATO, INFINITA SE- 
 quuntur : One absurdity being allowed 
 an infinity follow. § 225. 
 UNWRITTEN CONSTITUTION: See Pre- 
 scriptive. 
 USAGE: See Custom. 
 
 USURPATION: Exercise of, divests juris- 
 diction. Windsor (1) ; Weaver (67) ; 
 Piper (114). See Observations. Lange 
 (159). See Preface. Cohens (244). 
 Official usurpation and actionable tort. 
 Savacool (164). See C. C. (165). 
 UTILE PER INUTILE NON VITIATUR** : 
 See Surplusage. §§ 34, 155, 253, 264, 
 290a, 373. 
 UT RES MAGIS VALEAT QUAM PEREAT : 
 That the thing may rather have effect 
 than be destroyed. Mallan (373) ; 
 Vogt (324a). See Benedicta ; Con- 
 cordare. §§ 52, 217, 218, 232, 236, 
 266, 321, 334, 373, 393, 410, 412. 
 VADAKIN (11) ; Aider of pleadings; juris- 
 dictional facts not supplied by indict- 
 ment (U. S. v. Cruikshank). 
 VAIDEN (155) : Statutory record should 
 not be prolix (R. R. v. Stewart, 290a). 
 VAIN AND FRUITLESS THINGS ARE 
 never required : Lex neminem cogit ad 
 vana. 
 VAN CLEAF (17) : Res adjudicata depends 
 
 on a certain record. 
 VAN LEUVEN (14) : Aider of pleading by 
 
 appealing ; limitations. 
 VAN SLYKE (177) : The judicial function 
 
 cannot be delegated. 
 VARIANCE : See Departure. 
 
 Shall not be a. Windsor (1). See Frus- 
 tra. Bristow (135). 
 VENDOR AND VENDEE : See Sales. 
 VENUE : Local and transitory actions. 
 
 Mostyn (274). 
 VERBA (CHARTARUM) FORTIUS Ac- 
 cipiuntur contra proferentem** : The 
 greatest beacon light of the law. P. 11. 
 See Preface ; Frustra ; De Non Ap- 
 parentibus. Dovaston (217). 
 Pp. 3, 6, 11 ; §§ 1, 2c, 2f, 5, 7, 9, 10o, 
 11, 12a, 17, 21, 27, 30, 34, 46, 71, 
 79, 82, 84, 86, 91, 107, 108, 118, 158, 
 186, 217, 217a, 225, 232, 299, 301, 334, 
 410. 
 
INDEX. 
 
 249 
 
 VERBA GENERALIA RESTRINGUNTUR 
 ad habilitatem rei vel aptitudinem per- 
 sona?** : Rossiter (417); Bristow 
 (135). §§33, 34, 135, 217a, 244, 255, 
 264, 290a, 374, 417. 
 
 VERBA INTENTIONS DEBENT INSER- 
 vire*: P. 5; §§5, 108, 214, 216, 217a, 
 218, 225, 308, 391, 393, 400, 410. 
 
 VERBA NIHIL OPERARI MELIUS EST 
 quam absurde : It is better that words 
 should have no operation than to op- 
 erate absurdly. Huntsman (231). 
 §5 218 224 225. 
 
 VERBA OFFENDI POSSUNT, JMO AB EIS 
 recedere lieet, ut verba ad sanum intel- 
 lectum reducantur : Reason controls 
 meaning of words ; absurdities must 
 be excluded. Huntsman (231). §218. 
 
 VERBA RELATA HOC MAXIME OPERAN- 
 tur per referentiam eis inesse viden- 
 tur* : §§ 59, 70, 71, 101, 264, 290a, 295. 
 
 VERDICT: Will not supply omitted alle- 
 gations. Hitchcock (12). 
 
 VESTED RIGHTS : Cannot be impaired by 
 legislatures. Calder (237) ; Dash 
 (237a) ; Bronson (238), et seq. 
 
 VIEW OF PREMISES : See Res Ipsa Lo- 
 quitur ; Praesentia Corporis. 
 
 VIGILANTIBUS ET NON DORMIENTIBUS 
 jura subveniuht : The laws serve the 
 vigilant, not those who sleep. § 298. 
 
 VIPERINA EST EXPOSITIO QILffil COR- 
 rodit viscera textus : That is a viperous 
 exposition which gnaws out the bowels 
 of the text. See Benedicta. 
 
 VIRGINIA COUPON CASES (285a) : Un- 
 constitutional law is no law. 
 
 VOGT (324a) : Parties must make their 
 own contracts ; these will be construed 
 as made. 
 
 VOID AND VOIDABLE : See Statute of 
 Frauds ; Illegality ; Mistake ; Re- 
 straint of Trade. 
 Concealment of facts avoids a contract 
 when. Diggle (371). 
 
 VOID IN PART, VOID IN TOTO : A statute 
 may be valid in part. Spraigue (236). 
 Also a contract. Mallan (373) ; Mitchel 
 (372) ; Pigot (417). 
 
 VOID THINGS CANNOT BE WAIVED OR 
 aided: Windsor (1), et seq; Shutte. 
 
 VOLENTI NON FIT INJURIA* : See Con- 
 sensus. 
 One must minimize damages. Smeed (417). 
 One inviting his own injury can impose 
 no obligation on one injuring him. U. 
 P. R. R. v. Cappier (417). 
 Negligent execution of contract is no de- 
 fence. Williams (417). 
 §§30, 34, 71, 141, 155, 198, 207, 282, 
 295, 354, 357. 
 
 VOLUNTEERS : Party paying debt of an- 
 other is not subrogated. Boston (320). 
 
 VON HOFFMAN (239) : Retroactive laws. 
 Bronson (338). 
 
 VOORHEES (119) : Inferior tribunals ; pre- 
 sumptions. 
 
 WABASH (137) : Allegata et probata must 
 correspond. 
 
 WACO (300): Certificate of doubt; prac- 
 tice. 
 
 WAGER: Contracts of, validity; outline 
 citations. Good (58) ; Ditchburn (259) ; 
 Evans (360) ; Da Costa (361) ; Bunn 
 (262). See In Pari Delicto; Ille- 
 gality. 
 
 WAGNER v. GIBBS (290) : Record in crim- 
 inal case, when admissible in a civil 
 case. 
 
 WAIN v. WARLTERS (335) : Memorandum 
 required by the statute of « frauds. 
 
 WAIVER : See Assignment of Errors. 
 Error shown from the mandatory record 
 cannot be waived. Windsor (1) : cases, 
 et sea.; Clem (2c); Garland (60). 
 Matter of the mandatory record cannot 
 be waived. Windsor (1), et seq.: Roden 
 (126), et seq. 
 Answers cannot be waived. Garland (60) ; 
 
 Boyd (62) ; J'Anson (91). 
 
 Of pleadings, observations. Campbell (2) ; 
 
 R. v. Wheatley (19), et seq.; Munday 
 
 (79), et seq. 
 
 Cannot be under codes. Borkenhagen 
 
 (81) ; Kraner (299). See Defences. 
 
 Allegata et probata must correspond, is 
 
 mandatory under codes. Borkenhagen. 
 
 Abatement matters may be waived. Hark- 
 
 ness (152). 
 By failing to assign error. See Assign- 
 ment of Error. 
 Or to argue. Gibler (96) ; Kraner (299). 
 
 See Consensus. 
 Usurping jurisdiction not a matter of 
 
 waiver. Windsor (1). 
 After removal of cause to federal court, 
 participating in trial is no waiver. 
 Harkness (152). 
 Abuse of power as to waivable matter 
 gives right to review. Clyde Mattox. 
 WALDEN v. BODLEY (139) : Amend- 
 ments ; limitations of the right. 
 WALKER (118) : Inferior tribunals ; im- 
 portant rules. 
 WARRANT: Void, no protection to ofllcer. 
 
 Savacool (164) ; Howard (166). 
 WARRANTY: See Caveat Emptor; Sim- 
 plex Commendatio ; Misrepresenta- 
 tion. R. v. Wheatley (19). 
 Outline citation ; illustrations. Chande- 
 Ior (374) ; Pasley (375-384), et seq. 
 Deceit, effect of. Chandelor ; Pasley. 
 Implied. Jones (376) ; Hogins (379). 
 Oral evidence cannot add implied. Hogins ; 
 
 Vogt (324a). 
 Of real estate ; observations ; illustra- 
 tions. Harris (380-383). 
 Of furnished apartments ; distinctive rule. 
 Smith (383). 
 WARREN (243) : Computation of time. 
 WATKINS (269) : One cannot prosecute 
 
 himself. 
 WAY : Of necessity, rule of. Logan (249) ; 
 
 Pinnington (417). 
 WEAVER (67) : Abuse of power divests 
 
 jurisdiction. 
 WEBB : Statutes cannot be evaded. Ilsley. 
 WELBORN (388) : Delivery and acceptance 
 
 of deeds. 
 WELTMER (268a) : See Fabula Non Ju- 
 
 dicum. 
 WHAT OUGHT TO BE OF RECORD MUST 
 be proved by record and by the right 
 record* : See Expressio Unius ; Wind- 
 sor (1) ; Campbell (2) ; Clem (2c), 
 et seq.; Planing Mill (2d) ; Iverslie 
 (46), et seq.; L. C. 113-134; C. v. 
 Kane (183). 
 Taxation requires this rule. Rustin (134). 
 WHEADON (349) : Mistake; reformation of. 
 WHERE ONE OF TWO EQUALLY INNO- 
 cent persons must suffer from the fraud 
 of a third, he who first trusted must 
 first suffer*: Lickbarrow (294); Swift 
 (417) ; Young (417). See Bona Fide 
 Purchaser. 
 Possession is notice of occupant's right. 
 Williamson (417) ; Le Neve (396). 
 See Commercial Paper. 
 Negligent execution of contract. Williams 
 (417) ; Lickbarrow (294). 
 WHITE v. BLUETT (317) : A consideration 
 must be real. 
 
250 
 
 DATUM POSTS. 
 
 WHITE v. CORLIES (303) : Contract, when 
 complete. See Sales. 
 
 WHITE v. FORT (175) : Merger of reme- 
 dies. 
 
 WHITE v. LYONS (140) : Prayer to plead- 
 ings ; sufficiency. 
 
 WHITE v. WAGAR (130) : Search war- 
 rants ; requisites. 
 
 WHITNEY (112) : Code prescribes direct 
 and single statements. 
 
 WIEBOLD (98) : Names ; Idem sonans. 
 
 WIGGLESWORTH (399): Custom; oral 
 6vidGncG. 
 
 WILKERSON (221) : Cruel and unusual 
 punishments. 
 
 WILLIAMS v. BANKHEAD (93) : Parties 
 to actions. 
 
 WILLIAMS v. CARWARDINE (322) : Re- 
 wards ; law of. 
 
 WILLIAMS v. EGGLESTON (94) : Only a 
 wronged person can appear. 
 
 WILLIAMS v. HINGHAM (7) : S. P. Rush- 
 ton (5). 
 
 WILLIAMS v. PEYTON (116) : Sale of land 
 depends upon strict compliance with 
 law. 
 
 WILLIAMSON v. BERRY (65) : Judicial 
 sales must be confirmed. 
 
 WILSON v. BRETT (351) : Bailments. 
 
 WILSON v. U. S. (154) : Duty of judge to 
 give statutory record. 
 
 WINDSOR (1) : Audi alteram partem. 
 
 WINONA, ETC., LAND CO. v. S. : A re- 
 view of any matter from a state court 
 
 in the federal supreme court depends 
 on exceptions and technical procedure. 
 See Windsor (1). 
 WITNESS : Cannot be compelled to crim- 
 inate himself. Counselman (17S). See 
 Nemo Tenetur. 
 Exempt from arrest. Dunlap (168). 
 Testimony of dead, absent and disquali- 
 fied. Drayton (213e), et seq. 
 WONDERLY (102) : False pleadings cannot 
 
 confer jurisdiction. 
 WOOLLAM (53) : Oral Evidence. 
 WORDS: See Verba. 
 
 How construed ; each word must be given 
 ! effect. Spraigue (236); Vogt (324a). 
 
 WORK (242) : The word "jury" in a con- 
 | situation is given a common law defini- 
 
 tion. 
 WORRALL (390) : Escrow deeds must be 
 in favor of a third person ; rules of 
 deeds. 
 WRIGHT v. GRIFFEY (28) : All estoppels 
 must be pleaded ; res adjudicata re- 
 quirements. 
 WRIGHT v. TATHAM (201) : The right to 
 cross-examine is a fundamental right. 
 See Prescriptive Constitution. 
 YOUNG (417) : Commercial paper ; negligent 
 
 execution. 
 ZALESKI (306) : Contracts must be certain. 
 ZOUCH : Infant may disaffirm his deed ; his 
 deed is void. Trueblood (417) ; Craig 
 (417). See Infants. 
 
THE DATUM POSTS OF JURISPRUDENCE 
 
 By WILLIAM T. HUGHES 
 
 Author of "CONTRACTS" and of "PROCEDURE" 
 
 "Man's greatest interest on earth is justice, sir," involves jurisprudence, 
 -which has for allies, philosophy, theology and history. These are the uplifting 
 factors of humanity; these factors pervade the life force of every good govern- 
 ment, prescribing and regulating its conduct for the good of the whole. It is 
 jurisprudence that molds and directs great moral agencies for progress, edu- 
 cation and protection. The basic principles of that force should be as familiar 
 to jurisprudents as is the decalogue to the theologian. Whether they are or 
 not may be tested by asking lawyers and comparing their answers. From these 
 answers it may be determined whether or not there is a distinctive niche for 
 a small work that will present these principles so they can be turned to on 
 every hurried and pressing occasion for awakening thought, attending sugges- 
 tion and for safeguarding and lighting the way. It will be more than a key; 
 it will be a guide. 
 
 This work is offered as the greatest condensation of basic principles; to 
 name, to make them most tangible as a needed exposition of the chief causes 
 that have unsettled the law in various states; also of the adoption of views 
 therein inimical to fixed and protecting government. In this connection several 
 states are expressly mentioned. Also why it is that cases like Pennoyer, 
 Windsor and Haddock, reaffirming the fundamental maxims of antiquity, make 
 so much commotion if not astonishment among the American Bar. 
 
 It is explained that jurisprudence has its Datum Posts and that from 
 and around these the law has been developed. These dominant initials are 
 gathered and impressed with copious yet concise illustrations. The Mount 
 Everests of jurisprudence are pointed to and impressed as first precejits, con- 
 stituting grounds and rudiments of law. In other words the law is shown to 
 have its "beacon lights" and "landmark cases," as well as history and other 
 presentments. From these the "profuse jargon of useless grists" can be readily 
 discerned, also the departures from fundamentals by prominent errorists and 
 misguided courts. 
 
 For the ends in view the content matter of Datum: Posts is gathered from 
 on high and is aligned on down. It is written from Alpine mountains, not from 
 molehills; from fountains, not from rivulets. The principles of the unwritten 
 constitution from the Roman, Norman, English and Federal are in one un- 
 broken line. These principles are the maxims and their illustrative cases; 
 e. g., Audi alteram partem is illustrated in Windsor v. McVeigh (U. S.) ; it is 
 a part of Dub Pbocess op Law from the Roman, the Norman and the English 
 (from Magna Charta) reexpressed in Murray v. Hobolcen Co. (U. S.). These 
 matters and their parts are variously expressed in the many provinces and 
 on adown the numberless rivulets; they are set and made conspicuous in 
 Datum Posts as Datum Posts in order to impress them. From these as set 
 and explicated are seen the prolific discussions arising and issuing therefrom 
 and in some quarters the hazy claims that "due process of law" can not be 
 defined; also that each state may establish a local species of "due process of 
 law" for itself, excluding fundamental principles of the unwritten constitution 
 indispensable in a constitutionalism. It is not conceded that there is new 
 or distinctively American law. 
 
 Those who believe that the simplicity, the morality, the intensive useful- 
 ness and the history of the law is yet to be written will be much interested 
 from a review of the acorns, roots and heart-wood. Therefrom will appear the 
 grounds and rudiments of law, its reason, necessity, convenience, public policy, 
 and the mandatory requirements of defined government. 
 
 The following quotation may meet the acceptance of those who believe that 
 
 "Our birth is but a sleep and a forgetting; 
 
 The soul that riseth in us, our life's star, 
 Hath elsewhere had its setting, 
 
 And cometh from afar." 
 
ADVERTISEMENT. 
 
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 Pages, 263. Octavo. Price, $3.50 net. 
 
ADVERTISEMENT. 
 
 I. W. Poltz in The Chicago Legal News and The Chicago Law Journal writes 
 as follows: 
 
 THE STUDENT MENACED. 
 
 The laws of a country form the most important and instructive part of its historv 
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 require a change in the rules of the law, but not in the body of the law. Such temporary 
 rules of the law may be often found in statute, practice acts and rules of evidence but the 
 body of the law should consist in the great underlying principles of the law, such 'as Salus 
 populi suprema lex, Verba fortius aacipiunter contra proferentem and others, without 
 which principles no legal system can long endure. 
 
 The ideas above expressed are not of English or Anglo-Saxon origin; they are Roman 
 and Norman. Notwithstanding race pride and the endless and forceful arguments of many 
 able English lawyers to the effect that the body of the common law of England is entire- 
 ly of English origin, the world is fast coming to the conclusion that the majority of the 
 basic principles in the legal systems of every civilized nation on earth was directly or in- 
 directly derived from the Roman law. The science of law is a Roman creation. The 
 Roman was happily endowed with the inclination and power to reason on matters relative 
 to public and social affairs. In his victorious and triumphant marches to and fro, he 
 collected, learned and condensed the good sense of the ages, all of which he utilized in 
 perfecting his laws. Among the many treasures bequeathed to the world by the Roman peo- 
 ple, the one that has worked most for order, peace and happiness is Roman jurisprudence. 
 Indeed, if the English common law were to discard all it received from the Roman law, it 
 would have nothing left but its ancient barbarous usages and customs. The Roman law 
 was constructed on simple fundamental principles, the truth and value of which prin- 
 ciples every one who is led by the light of reason must accept without question, while the 
 common law consists of a heterogeneous mixture of barbaric usages, Roman relics, Aristo- 
 telian philosophy, theological casuistry, and military and feudal regulations. 
 
 When Roman jurisprudence was in its highest perfection, the Roman devotees of the 
 law committed to memory and constantly contemplated the. fundamental principles under- 
 lying their law. They always agreed on the truth and value of these principles. Dis- 
 putes in cases were confined to the question as to which particular rule of law should con- 
 trol in the case at issue and out of which fundamental principle the rule should grow. In 
 other words, the Roman jurisprudence had fundamental principles to rest upon, by means 
 of which it could develop on logical and philosophical lines. All cases were referred back 
 to first principles. Of course, judicial decisions in similar cases were considered and treat- 
 ed with respect, but not adopted and followed as precedents. 
 
 But how different is the jurisprudence of the English speaking races who have largely 
 adopted and followed the plan of the English common law. In the latter the law has no 
 other basis than the ever-changing quicksand of precedents upon which it rests. In our 
 country the great bulk of our law consists of constitutions, statutes and indefinite rules 
 and precepts laid down in an infinite number of cases, many of which are more or less 
 poorly reasoned. When we view our law as an entirety, it is a tangled mass of wisdom, 
 folly and inconsistencies, without any semblance of a corpus juris (except as to the con- 
 stitutions and statutes which comprise but a very small portion of the whole bulk). As it 
 is, principles and rules are only assumed tentatively and applied to particular cases. No 
 definite and exact rule of law can be said to exist until after it has been formulated and 
 pronounced in a case at bar. The rule adopted in the case at bar may be more or less 
 like some rule applied by another judge in another case, but it is not exactly the same 
 rule. And thus a rule of law is often taken and expanded and distorted until it becomes so 
 perverted and dangerous that its pernicious course is finally changed either by an over- 
 ruling judicial rule or by legislative enactment. The reported cases are now becoming so 
 numerous, varied and conflicting that a reason therein can be found for almost any doc- 
 trine, however novel, and thus the law is rendered as unstable as a quagmire. There are 
 few things more uncertain than the result of a lawsuit. It is only from the observed intel- 
 lectual phenomena of a court disclosed by its former decisions that a lawyer is able to 
 guess what will be the future holding of that court. In most instances where a judge nas 
 made no rule in his own court that apparently fits the case at bar, he examines a num- 
 ber of the most recent reported cases for which he has the most respect, and observing 
 their general trend, he lights upon a rule which he believes is justified by their sanction 
 and this rule he proceeds to apply to the particular case at bar. In many of tne De- 
 cisions of the numerous courts of appellate jurisdiction the rules therein laid down are so 
 loose and uncertain in form and meaning and contain so much dictum that tney can seive 
 but little purpose other than to render the law still more complex and confusing. 
 
 The foregoing statements are direct and pointed and their truth is a PP ar f t J? 11 e I 1 e 1 ^ 
 one who has taken the care and time to investigate the question. But there is still mucn 
 
ADVERTISEMENT. 
 
 more to be said on the subject. What can be truthfully told about the defects of our legat 
 literature? Do our legal text books as a rule contain the true history and correct phi- 
 losophy of our law? Do they disclose the real source of our law? These questions touch 
 the field wherein grow many errors that menace the student of the law and destroy the 
 harmony and usefulness of our jurisprudence. Many thousand text books have been writ- 
 ten on our law. Many of them deal with particular minor subjects, others treat the law 
 of an entire department of the law, and some attempt to present the law in all its branches 
 and departments. Few of these works treat the law as an entirety, but on the contrary 
 they teach it in fragments without showing any relation between the different departments 
 or branches thereof. In other words, the law is not resolved into its general principles ; 
 and few attempts are made to show that the woof and warp of the law consist in the fun- 
 damental principles. As a rule there is but little evidence of a disposition to appreciate 
 the proper province and duty of a court and the value and necessity of a harmonious and 
 protecting jurisprudence. There seems to be a prevailing opinion that the prime duty of a 
 court extends no further than dealing out substantial justice to the parties litigant in the 
 case at bar, and that the court has little concern in the maintenance of a uniform and co- 
 hesive jurisprudence. 
 
 The authors of legal text books and encyclopedias usually present and discuss the law 
 as they find it scattered here and there, far* and wide in the reports of the decisions of the 
 numerous courts. These decisions are often conflicting, irreconcilable and confusing, 
 nevertheless they are cited and often given equal commendations by such authors and ac- 
 cordingly most of the legal text books are written. The reader will see in many of those 
 text books passages to the effect that "the authorities conflict on this subject," and that "the 
 weight of the authorities holds this to be the law," and that "this is the law on this 
 question, but there are many good authorities that hold to the contrary." and that* "the 
 authorities are not clear on this subject." Indeed, many of the text books are sometimes 
 so evasive and confusing that their reader is often less decided as to what the law is on 
 the question under consideration than he was before he began to consult them. Ample 
 proof of these assertions can be obtained by reading the most widely advertised great 
 work of the age, Cyclopedia of Law and Procedure, especially under such topics as Accord 
 and Satisfaction, Appeals and Errors^ Assignment of Choses in Action, Criminal Law* 
 Equity, Estoppels and Gifts, etc., etc. 
 
 We can discover from these text books that the courts in many states in recent years 
 have so far departed from fundamentals that they are viciously undermining the entire 
 fabric of the law by holding that pleadings can be waived. See Hughes on Procedure, pp. 
 7-32. We can note therein that numerous courts are disregarding Frustra probatur quod- 
 probatum non relevat (it is vain to prove what is not alleged) and its kindred maxims, 
 and yet the authors thereof do not complain that such departures will surely overwhelm 
 even the most perfect jurisprudence. We can see instances where variances are counte- 
 nanced and upheld and we can behold statements to the effect that legislatures can authorize 
 such variance. Seldom therein do we see a proper description of the profound functions of 
 pleadings, or reasons given why "allegata et probata must correspond," is an essential rule 
 in a constitutionalism and that such rule is related to the rule that "a court is bound by 
 its record" ; nor are we told therein that all these elements are essential requirements 
 in a government of limited and defined powers. Indeed some of the greatest authors and. 
 writers and many of the courts of last resort may be cited in denial of the maxims last 
 stated. See Hughes on Procedure, pp. 29-32 ; 2 Thompson on Trials, sees, 2310-2311 ; 
 Andrews Stephen's Pleadings, 230, 2d ed. Every phase of the last mentioned rule is equal- 
 ly commended in the Cyclopedia of Law and Procedure. See 2 Cyc. 691-692, and cases ; 
 2 id. 715 ; 12 id. 372, 390 ; 16 id. 403-406. Scores of pages therein can be cited pro and 
 con with equal commendation, and the collection of conflicting cases and rules are hope- 
 lessly confounding and bewildering. Seldom do we see a clear and distinct description of 
 the respective functions of the mandatory or judgment-roll record and the statutory 
 record (bill of exceptions) ; and rarely do we find a clear and distinct statement as to what 
 constitutes formal error and as to what constitutes substantial error. These books rarely 
 define what constitutes the foundation of a judgment nor do they demonstrate the im- 
 portance of such foundation and the necessity that all courts should agree upon such foun- 
 dation. The division of state power, although a very essential and salutary feature in our 
 governmental institutions, is seldom referred to in the books. 
 
 In the last generation a supposed distinction between substantive and adjective law has 
 arisen which distinction has been greatly emphasized. One edition of books was produced 
 to present the substantive law and another edition to present the adjective law. However, 
 these works did not seem to be sufficiently acceptable upon those theories, and to correct the 
 mistake another edition followed on a different plan. These facts disclose a condition that 
 bodes more ill than good and indicate that financial success of the publisher is of more im- 
 portance than the intrinsic merit of the work. 
 
 Books are widely advertised as the student's guide and counselor and proclaimed as 
 the ne plus ultra effort of a multitude of professors in leading colleges, and yet they never 
 cite nor discuss one fundamental. Frequently the greater portion of such books consists 
 of matter garbled from an ordinary law catalogue and the remainder is composed of a pad 
 of inferior rules together with a series of attacks on works that are not developed on the 
 same plan. The publishers of such books seem to pervade their whole output with an air 
 of something new or modern or American, and the buyer is often deceived thereby. 
 
 Legal literature and methods of instruction are casting too much responsibility upon 
 the student. As it is, he must choose for himself and if he decides unwisely he must suf- 
 fer the consequence. In America the matter of a legal education is a free-for-all con- 
 test ; and all schools, all sects and all teachers are saying all things. The conflicting 
 theories have created a condition that is completely bewildering. There are all kinds of 
 literature for all men and every ism. The result is an abracadabra. The student "will 
 surely revolt after he has been fully advised. 
 
 The reader may say : "Yes, the conditions are bad and the danger is great. But what 
 shall he the remedy?" The answer to the question should be, "We must go back to and 
 stand upon the fundamentals as the Romans did when the lights of their jurisprudence 
 shone brightest." Even the most perfect codification of our laws would not save us unless 
 
ADVERTISEMENT. 
 
 we adhere to the fundamental principles of the law and ever bear them in mind Every 
 devotee of the law should always remember that jurisprudence is intimately mvolved with 
 government and that the study of law is the study of government. There is S«imrt 
 truth in the maxim Debile < Jundamentum tallit opus (when the foundation falls Sown goes 
 the entire structure) as there were when Greece, Rome and other once wonderful nations 
 went down to destruction to the everlasting shame and dishonor of those who were re 
 sponsible for the proper administration' of their laws. Our ancestors designed and es- 
 tab ished a splendid scheme of government and jurisprudence attended with I constitution 
 replete with wise provisions for the protection of life, limb, liberty and nro D ertv The 
 complete development and the perpetuation of that scheme is the great concern and dutv 
 of their descendants. The task to be performed by the descendants may call for the exercise 
 of more wisdom and intellectual power than was required of their ancestors. Knowledge of 
 fundamental principles accompanied by due respect therefor will provide us with a prescrip- 
 tive or unwritten constitution which is of greater value and aid than the one that is writ- 
 ten. These fundamentals are comparatively few and easily found. Bacon, the founder of 
 the maxim theory in English law, displayed only twenty-five. Broom prominently treated 
 but 104, all of which were taken directly or indirectly from the civil law. The civil law 
 of Rome was based upon twelve tables, in the first of which was Salus populi supremo, lex. 
 The application of these principles can be seen in the decisions of Lord Mansfield, a lawyer 
 of the ages. It was Mansfield who first extensively introduced into English jurisprudence 
 the principles of the civil law of Rome. Agreeably to and under the influence of his de- 
 cisions appeared in one single decade four great works, namely. Smith's Leading • Cases 
 Story's Equity Pleadings, Greenleaf on Evidence, and Broom's Legal Maxims. In these works 
 can be found the fundamental principles of the law ; and the great and constantly increas- 
 ing myriads of cases can be nothing more than an application of the rules growing out of 
 such principles. 
 
 Testimonials or Hughes' Procedure. 
 Extracts from letters of Hon. Thomas M. Shackleford, Chief Justice of the 
 Supreme Court of Florida: 
 
 Tallahassee, Fla., July 11 1907. 
 Messrs. Callaghan & Company, 
 
 Law Publishers, Chicago. 
 Gentlemen : — 
 
 * * "I have had occasion to refer to Hughes' Procedure from time to time and have al- 
 ways derived benefit therefrom, but it is so unique in character that I have waited until I 
 could give it a critical examination before undertaking to pronounce judgment thereon. 
 
 This I have now done and it affords me pleasure to give it my hearty commendation. 
 It is one of the most philosophical and scientific works on the law that has been published 
 for years. No student of the law or practicing lawyer can read it without great benefit. 
 It deals with fundamental principles and its treatment of them is both novel and thorough. 
 It is condensed and is not an easy book to read, but it is truly a great work. Once 
 mastered, it will save the busy judge or attorney much time and labor. I am so much 
 pleased with it that I wish to place a copy in my own library. * * * I heartily com- 
 mend it to all members of the bench and bar, as well as to law students. No one can read 
 it with care, without great benefit. I have called the attention of all of the other Justices 
 of this court to its great merit and would like to assist in any way that I can in calling 
 It to the attention of all the trial judges and practicing attorneys in this state, especially, 
 as a familiarity by them with the principles ' so lucidly set forth therein, would prove of 
 service to the nisi prius and appellate courts alike. In many respects it is a most remark- 
 able work and the author is to be heartily congratulated upon his achievement. • * * I 
 would like to see the work have the widest publicity possible." * * 
 
 Sincerely yours, 
 
 Thomas M. Shacklefoed. 
 
 From the Hon. Richard L. Goode, Judge of the St. Louis Court of Appeals: 
 
 "After studying and using Hughes on Procedure during six months or more, it affords 
 me pleasure to state that I have found it very helpful in the consideration of causes and 
 believe it must be equally helpful to the practicing lawyer in the preparation of them. It- 
 is a work of profound and accurate scholarship, exhibiting an intimate acquaintance with 
 all branches of Anglo Saxon Jurisprudence. Under about forty of the leading Maxims have 
 been gathered a great number of legal rules, which are traced to their source in the maxims, 
 and their application illustrated by decisions wherein they were applied, either accurately 
 or erroneously accordingly as the true meaning and scope of the particular maxim in- 
 volved was correctly appreciated or not. This plan of expounding the law by showing how 
 its various doctrines and rules are connected with a few underlying principles, is the best 
 method of exposition to enable one to understand the unity and harmony which may be at- 
 tained in jurisprudence by careful attention to the maxims. 
 
 The grouping of the leading opinions, with a summary of their matter, under im- 
 portant titles, is extremely serviceable, as it presents, in a succinct and convenient form, 
 the principal authorities on any subject one needs to investigate.* * •" 
 
 "I have had occasion to use to a considerable extent your late publication on Procedure, 
 by W. T. Hughes. It seems to be a very valuable addition to my library. All that is use- 
 ful in many text books and decisions Mr. Hughes has succeeded in condensing into the 
 small compass of one book of two volumes arranged in such logical order as to afford the- 
 busy practitioner or judge a most admirable source of ready reference. I take pleasure in- 
 commending , the work to the favorable consideration of bench and bar." 
 
 Hon. R. D. Marshall, Supreme Court of Wisconsin. 
 "Hughes on Procedure is a great work, great in plan, in compass and in execution." 
 
 Hon. T. M. Robinson, of Colorado. 
 
ADVERTISEMENT. 
 
 "Tour work on Procedure gives evidence of great research and learning. Such a book 
 could only be written by a studious and philosophical lawyer. * * * It is one of those 
 law books which cannot be displaced and which will not grow old." 
 
 Hon. Frank S. Roby, Indiana Appellate Court. 
 
 " * * The work begun by Francis Bacon * * has been resumed by the author 
 where the great chancellor was obliged to abandon it, and it has been completed with dili- 
 gent research and careful elaboration * *" " 'It cures most all the ills my clients 
 nave' ". Russell Jackson, Madison, Wis. 
 
 * * "Lovers of old classics will find an incomparable work in the new comer. It is 
 built out of the matter of great literature and is of the bone thereof. It will always in- 
 struct and never grow old." 
 
 A. A. Wobsley, of Worsley Brothers, Chicago. 
 
 "I have given it a thorough perusal and consider it one of the most thorough text books 
 ever published." B. N. La Veine, Coeur D'Alene, Idaho. 
 
 "It unifies all systems and is simple, practical and most instructive. The treatment of 
 great subjects is surpassingly fine, and especially the subject of Kes Adjudicata." 
 
 H. T. Wilcoxon, of Holt and Wilcoxon, Chicago. 
 
 "Your work is entitled to a place among the masterpieces * * * They are the 
 outgrowth of ability and talent such as you have displayed in the exploitation of your new, 
 daring, practicable and, best of all, correct analysis and classification of the law." 
 
 L. H. Oberreich, Indianapolis, Ind. 
 
 "Hughes' Procedure will do the work of hundreds of ordinary volumes. It is intensively 
 condensed. Letters like Judge Shackleford's and the notices of it in The Central Law 
 Journal, in The Law, in The- Harvard Law" Review, The Oklahoma Law Journal, The 
 Chicago Legal News, and The Chicago Law Journal only do it full justice. It is the 
 most used book in the St. Louis Library." Edward D'Abcy, St. Louis. 
 
 "I have examined Hughes' Procedure and feel it due to say that the legal profession are 
 greatly indebted to the author for a work that opens and defines the channels of the law that 
 have become clogged by the silt of judicial opinion not founded on sound principles. When 
 the philosophy of the law is lost, the law is lost. It is from the fountains, of great orig- 
 inality, of surpassing research, of the rarest learning and of marvelous intrepidity. * * *" 
 
 Jefferson Chandler, St. Louis. 
 
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